2015: Power Equation and Jonathan’s Eligibility , By John Ola Mafo



In the advanced democracies the world-over, power sharing is based on the ability of individuals to deliver in a given office rather than rotation on the parameter of ethno-geographical sentiments.
Jonathan 200.jpg 600The multi-lingual and poly-cultural nature of the Nigerian society as well as the primordial sentiment arising therefrom is so deep-rooted. Nigeria eventually came up with the concept of Federal Character and Quota System to ensure equitable distribution of opportunities. To give binding effect to these principles, provision was made in the 1999 Constitution (as amended), as section 153 lists the Federal Character Commission as one of the Executive Bodies created therein. Established by the Federal Character Commission Act Cap F7 (Laws of the Federation of Nigeria) 2004, the Commission is saddled “with responsibility to promote, monitor and enforce compliance with the principles of the proportional sharing of all bureaucratic, economic, media and political posts at all levels of government”.
It is instructive to note that the application of the principles of Federal Character and Quota System have to some extent redressed the age-long imbalance in the distribution of opportunities, especially in civil service and military appointments.
However, one area of our national life which appears to have defied any order or rules of engagement is the sharing of political public offices, especially elective posts from the least position of a Ward Councilor to the ultimate office of the President of the Federal Republic. The occupants of these offices mostly emerge out of bitter struggles, not based on merit, but on ethno-geographical considerations like region, religion, language and other primordial factors.
As a panacea to this problem, and in order to facilitate equitable distribution of offices, each state is divided into three senatorial districts and the country broken into six geo-political zones. One of the major underlining factors is the need to rotate the governorship of a state among the senatorial districts and the Presidency from zone to zone.
It is believed that these statutory provisions and the re-structuring of the states into districts and the country into geo-political zones encouraged the national ruling party, the Peoples Democratic Party (PDP), to adopt the twin concepts of zoning and power rotation toward political stability in our body politic.
Nevertheless, the problem persists and concerned Nigerians look toward every election year with fear and trepidation in view of the bad-blood, confusion, corruption, violence and anarchy that are associated with our elections. Today, it appears from all indications that the 2015 election will not in any way be different from previous elections. If anything at all, the signs are ominous and they portend grave danger ahead. More than in any other election, the emphasis is on where the President should come from and not on “who is fit to be the President.”
The other topical issue being discussed with deep feelings and violent sentiments is the eligibility of Dr. Goodluck Ebele Jonathan to contest the 2015 Presidential Election. The pros and cons of these interwoven issues are adumbrated in the succeeding paragraphs, starting with the former.
The heated debate about where the next President should come from dated back to 2010 when a cross-section of politicians and elder statesmen of Northern origin canvassed that President Jonathan, who was then serving out the unexpired term of the late President Umaru Yar’Adua, should not run for the presidency. At the end of the day, the leadership of the PDP applied wisdom and Dr. Jonathan contested and won the 2011 election.
As we move toward 2015, Nigeria is once again on the path of controversy. Some stakeholders from the North have declared that the demand for power to rotate to that region is non-negotiable. Others have argued that the presidency could still remain in the South for at least another four years, since Dr. Jonathan deserves the right of a second bite at the cherry, if he so desires.
It is the considered opinion of this writer that in a multi-lingual and poly-cultural society like Nigeria, the federating units should imbibe the spirit of negotiation to be operated on the principle of give and take. This translates to the fact that a region or zone cannot on its own decide to take power or demand for power without first seeking the concurrence of the other regions or zones of the federation. It should be a matter of consensus based on background history, present circumstances, prevailing exigencies and other over-riding factors. Given our present situation in Nigeria, a number of factors should be considered for us to arrive at a justifiable conclusion on how to pick our next President and Commander-In-Chief of the Armed Forces. In our 54 years post-independence, the North had produced the Chief Executive of Nigeria for 38 years and two months, leaving the South with just 16 years and one month.
It is only human for some stakeholders in the North to reflect and become sentimental about the fact that for a period of 14 years and eight months of the present Republic, the North only tasted the Presidency through Alhaji Yar’adua for three years (May 2007 – May 2010), just as it is natural that the South will also find it difficult to forget that for a period of 39 years between October 1960 and May 1999, the region only experienced power for just 4½ years against 34½ years enjoyed by the North. While it is not the intention of this writer to suggest that the South should occupy the Presidency for about 34½ years against 4½ by the North in the first 39 years from the commencement of this Republic in 1999, the North must also be considerate enough to realize that the permutation towards the next election must take into account certain historical and geographical factors about Nigeria.
Prior to the emergence of the present six geo-political zones, Nigeria operated the regional system whereby the entire North, though not altogether monolithic, operated as a single region, whereas the South had three regions, namely West, Mid-West and Eastern regions. This was the set-up before the creation of 12 states by the Federal Military Government in 1967 sequel to the commencement of the Nigeria-Biafra War. It should be noted that the then South Eastern State (present Cross River and Akwa Ibom) and Rivers State (now Rivers and Bayelsa) were combined with the old Midwest Region (Now Edo and Delta) to form the present South South zone.
By accident of history, the South South geo-political zone had never tasted the Presidency until Dr. Jonathan became President, first by accident in 2010 and by election in 2011. Since the area is made up of the Southern minorities, it is understandable that the zone will seek the understanding of fellow Nigerians to enable it make full use of the present opportunity, as it may take a matter of decades before the presidency rotates back to the sensitive area, which since the seventies had become the wealth basket for Nigeria. Happily enough some elements from the Northern side of the country are already conscious of this necessity and therefore receptive to the yearnings of the Southern minorities.
Once that is settled, the North will then be expected to approach their quest for the return of power in 2019 with the highest regard to justifiable sensibility, bearing in mind that the South East will require a lot of convincing and pacification for things to work out amicably. That is about the glaring path of honour and sanity to enhance peaceful co-existence, political stability and national unity, which are all vital ingredients for the survival of Nigeria as an indivisible and indissoluble entity.
From the fore-going, it does appear, to all intents and purposes, that this piece had thrown a lot of light on the nagging question of where the next President should come from, if not actually on who should be the next President. The little task that appears outstanding is on the eligibility of President Jonathan.
Since this is a constitutional matter, there is no better way to resolve the staccato of opinions and roadside interpretations than a recourse to judicial intervention. In a recently decided case, it was held that Dr. Jonathan is entitled to second term. Except an appellate court otherwise decides, that judgment remains binding, with the full force of law.
Meanwhile, it was highly amusing to come across a two-page advertorial in a national daily, where one Udeme Michael Umoh, a legal practitioner, argued without any conviction that President Jonathan is not eligible for second term. This writer will refrain from a point-by-point or issue-by-issue response on this matter. It is therefore sufficient to say that there is no amount of fire brigade interpretation that can be imputed into sections 135 and 137 of the Constitution that can turn the one year of unexpired term of the late President Yar’Adua to a full term of four years for President Jonathan. The combined reading of sections 135(2) and 137(1)(b) clearly guarantee a two-term tenure of eight years for a Nigerian President, if he could be re-elected by the people. The choice is that of Nigerians.
For the avoidance of doubt, with or without the application of any doctrine of necessity, section 146 of the Constitution endows the Vice President with power to hold the office of the President if and when the office becomes vacant as a result of death, resignation, impeachment, permanent incapacity, etc. There is nothing in our Constitution to support any suggestion to reckon with any unexpired term inherited by a Vice President in the calculation of the two-term tenure of eight years provided for a President. The wordings of section 137(1)(b) makes this clearer, which state that: “A person shall not be qualified for election to the office of the President if he has been elected to such office at any two previous elections.” It is therefore clear that the tenure of four years provided in section 135 begins after an election, not an inheritance.
It should equally be considered that the makers of the constitution could never have designed a situation where the two terms of eight years guaranteed in sections 135 and 137 would be turned to five or six years, hence if there is any lacuna or mischief in our law, it is that which allows a free term, long or short, to a present holder enjoying an unexpired term, which our Constitution, as it is, made no provision to regulate. The attempt to compare our Constitution with that of America after the 22nd Amendment cannot hold water.
The learned writer of the fully subscribed two-page advertorial should have noted that the 22nd Amendment to the American Constitution was a stone used to kill two birds. Coming in 1951, six years after President Franklin Roosevelt died in office in 1945 just three months into his fourth term, the amendment limited the tenure of American Presidents to a maximum of two terms.
Secondly, without the 22nd Amendment, President Harry Truman, who succeeded Roosevelt, could have spent 12 years less three months in office, if so desired. Though Truman had made it known that he would not seek another term, the amendment took care of future possibilities by specifically providing that a beneficiary of an unexpired term of office more than two years can only be entitled to one more term. It does not affect the beneficiaries of an unexpired term of two years or less.
In a nutshell, it is imperative to submit here that the same type of loophole that now exist in our Constitution also existed in the American Constitution before the 22nd Amendment. Thus the concern of stakeholders should be how to amend our law and state the conditions under which an unexpired term of a former President could be counted as one of the two terms contemplated by the Constitution for a sitting President. Until then, nothing in our law stops President Jonathan from contesting the 2015 Election, rather his right to second term is expressly provided for and guaranteed by the Constitution.
By accident or design and fortunately for Nigeria, the National Political Conference is around the corner, which will provide a veritable opportunity for the major stakeholders of the Nigerian heritage to take steps toward making necessary adjustments and building the required bridges to keep Nigeria one and sustain our enduring culture of unity in diversity.

• Mafo is an Abuja-based legal practitioner

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