Amid the latest controversy surrounding the eligibility of former President Goodluck Jonathan to run for the 2023 Presidency, new legal arguments and positions have emerged on Friday morning, to counter that of Femi Falana, SAN, who had earlier stated that the former President is Constitutionally barred from taking part in next year’s Presidential election or any subsequent one for that matter, citing a new Section 137 (3) of the 1999 Constitution, as amended, Page 36 learnt.
Falana had said: “It has been confirmed that former President Goodluck Jonathan has decided to join the All Progressives Congress, APC, to contest the 2023 Presidential election.
“However, the former President is disqualified from contesting the said election, by 137 (3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which provides as follows: A person who was sworn-in to complete the term for which another person was elected as President, shall not be elected to such Office for more than a single term.”
Reacting however, with a different position on the subject matter, a top Legal Expert who did not want his name mentioned in the Press, said that Femi Falana completely failed in tackling the issue of applicability when he cited the new Section 137 (3) in disqualifying Jonathan from the 2023 Presidential election.
He argued that when the issue of applicability of the Law is considered, Jonathan is not in any way affected by the controversial Section 137 (3), because the Law is not retroactive in nature, but with a few exceptions.
His exact words in full: “He (Falana) failed to address the issue of applicability
“This is the crux of the matter. When does a law or Constitution (including their amendments or alterations) take effect? Can they apply retrospectively to affect vested rights which accrued prior to such amendments/alterations? That is the question. We shall get into that anon, but before that, let’s attempt an answer to the first poser. According to the Interpretation Act, Section 2:
“(1) An Act is passed when the President assents to the Bill for the Act, whether or not the Act then comes into force”;
“(2) Where no other provision is made as to the time when a particular enactment is to come into force, it shall, subject to the following subsection, came into force –
In the case of an enactment contained in an Act of the National Assembly, on the day when the Act is passed; In any other case, on the day when the enactment is made”.
“From the forgoing, we can safely say that the 4th Alteration to the Constitution which added the ‘controversial’ Section 137(3) thereto took effect from the 11th day of June, 2018 when it was assented to by President Muhammadu Buhari. By virtue of Section 318(4) of the Constitution, “the Interpretation Act shall apply for the purposes of interpreting (its) provisions”.
“Beyond the foregoing, however, it is settled that a statute is not to be given retrospective effect unless there are express provisions which justify such a construction. See OJOKOLOBO vs. ALAMU (1987) 3 NWLR pt. 61 pg. 377 @ 396H, where the Supreme Court held that “It is a cardinal principle of our law that a statute operates prospectively and cannot apply retrospectively unless it is made to do so by clear and express terms or it only affects purely procedural matters and does not affect the rights of the parties”.
“In other words, as the apex court further held in AFOLABI vs. GOVERNOR OF OYO STATE (1985) 2 NWLR pt. 9 pg. 734, statutes are to be interpreted as only applying to cases or situations which come into existence after they were passed, unless a retrospective effect is clearly intended. A notable exception to this, however, are retrospective criminal statutes which are completely banned under Sections 4(9) and 36(8) of the Constitution.
Is Case Law Any Guide?
Directly? No. As previously opined, President Jonathan’s position is unique and unprecedented. However, by way of analogy, it is at least arguable that the express constitutional restriction of the ban on retrospective legislation to only criminal statues, ought not to be interpreted as prejudicing accrued rights which have vested under non-criminal provisions – such as those of former President Jonathan to seek a fresh four-year term – which accrued under the 1999 Constitution prior to its said 4th Alteration. I submit that such a construction would be grossly unfair, and would violate the right to equal protection of the law under Article 3(2) of the African Charter on Human and Peoples Rights. See N.N.P.C. vs. FAWEHINMI (1998) 7 NWLR pt. 559 pg. 698 @ 616.
“Finally, the following decisions of our appellate courts ought to make it clear beyond peradventure that our position on the correct interpretation of Section 137(3) of the Constitution as amended (i.e., that it is prospective and excludes President Jonathan) is the right one. They include:
“it is a cardinal principle for interpreting the provisions of the Constitution that where, in their ordinary meaning, the provisions are clear and unambiguous, effect should be given to them without resorting to any external aid”: SHOLA vs. AJIBOYE (1994) 6 NWLR pt. 352 pg. 506 @ 565F, per Bello, CJN;
“A broad and liberal spirit should prevail in interpreting the provisions of the Constitution”. BRONIK MOTORS vs. WEMA BANK (1983) 14 NSCC 226 @ 240. “Any narrow interpretation of the provision (of the Constitution) will do violence to it and will fail to achieve the goal set by the Constitution”: ATT-GEN OF ONDO STATE vs. ATT-GEN OF THE FED (2002) 6 S.C. 1 @ 28, line 25, per Uwais, CJN; “where the words of the legislature are clear, there is no room for applying any of the principles of interpretation which are merely presumptions in cases of ambiguity in the statute”: NATIONAL BANK vs. WEIDE & CO. (1996) 8 NWLR pt. 465 pg. 150 @ 165 per Ogwuegbu, JSC.
“A judicial interpretation must avoid judicial legislation by putting in words or meanings that are clearly not there”: U.R vs. N.R.C (1996) 9 NWLR pt. 473 pg. 490 @ 503 per Musdapher, JCA.“A court is not permitted to ascribe a meaning to a statue in order to make it conform with the judge’s own views of sound social policy. See Att-Gen. of Lagos vs. Dosunmu (1989) 3 NWLR pt. 111 pg. 552)”: ATT-GEN OF THE FED. Vs. SODE (1990) 1 NWLR pt. 128 pg. 500 @ 545.
“In the light of the foregoing judicial, statutory and constitutional authorities, I believe that only the most bigoted and jaundiced opponent of the former President will continue to insist that he is constitutionally-ineligible to vie for the highest Office, either next year, or in any other election cycle. I posit that the choice is solely his to make, and there is absolutely no legal or constitutional impediment or bar to him doing so. I suspect that those who peddle a contrary narrative are motivated by less than altruistic considerations. Is anybody afraid of President Jonathan? That is the question.”
