s 2015 approaches I have noticed increased conversations on the social media and elsewhere over the eligibility of President Jonathan to contest the election. His allies claim that it is within his constitutional rights to contest, and his foes claim that he is not eligible to contest. Incidentally both camps are now increasingly pointing towards the United States Constitution and US Presidential history to back up their claims. Well, I am not a constitutional scholar but with a freshly minted LLB from Canterbury I attended Nigeria Law School Victoria Island in 2000/2001, where among other things we studied the fresh 1999 Nigeria Constitution. I also happened to be a US Presidential historian by hobby. I shall therefore endeavor to analyze the pros and cons of these arguments, pointing towards our Constitution, US presidential history as it relates to this subject, and, of course, Nigeria's Supreme Court.
First, I must state my own opinion on the legal merits of the argument in support of Jonathan's right to contest in 2015. Please be mindful that my opinion is solely limited to this singular legal/constitutional question. According to our constitution there is absolutely nothing in it that currently prevents Jonathan from contesting. The only thing that comes close in our Constitution is a disqualification clause in section 137(b): …or he has been elected to such office at any two previous elections; In 2007 Jonathan ran with Yar'adua as his running mate, seeking the vice presidential slot. This obviously cannot count against him since he did not seek such office (President) as he would now seek again in 2015. Although he took over from Yar'adua after his death, Jonathan first sought the Presidential office in an election in 2011. According to our Constitution, 2015 would constitute his second time of seeking the office of the Presidency in an election.
Both sides of the argument have consistently pointed towards the American examples to buttress their argument. But there is nothing in the American Presidential history or case law to support either position. Of all the 43 men who have served as US president (Although Obama is the 44th President but altogether only 43 men including Obama have served as President) 8 US Presidents have died in office. Of this 8, 4 died of illness and 4 were shot. A couple more were shot including Reagan but survived. Those who died of illness while in office include William Henry Harrison, 1841 who died after 31 days in office and replaced by his vice John Tyler 1841-45. Zachary Taylor 1849-1850, died of illness and was replaced by his vice Millard Fillmore 1850-53. Abraham Lincoln 1861-1865, he was shot and was replaced by his vice Andrew Johnson 1865-69. James Abram Garfield 1881, he was shot and killed in September of the same year and was replaced by his vice Chester Alan Arthur 1881-1885.
Of these first four US Presidents that died in office, none of their replacements were able to secure a nomination to run after serving out the term of the dead President they replaced. William Mckingly 1897-1901 was shot dead soon after his re-election and Theodore Roosevelt replaced him and became the youngest person to be sworn in as US President 1901-1909. (Yes, it is not Kennedy as I'm sure you've heard before. Kennedy was the youngest to win a Presidential election.) Theodore Roosevelt would go on to contest again in 1904 and won but never contested in 1908. There was no constitutional limitation at this time so no one can argue that he was limited by the US Constitution. There had been a convention (precedent) of two-term limit set by Washington, which had been largely followed by all US Presidents until FDR, which happened during the depression and the second world war, winning four presidential elections until his death in 1945, which necessitated the 22nd Constitutional Amendment that limited Presidents to only two terms in office. It was proposed by Congress on March 24, 1947; ratified Feb. 27, 1951.
Warren Harden 1921-23 after an illness, was replaced by John Coolidge 1923-29. Coolidge also sought a nomination and was re-elected in 1924 but failed to secure nomination in 1928. FDR 1933-45, he won election 4 times and died a couple of months after he was sworn in for the 4th time in 1945. Harry Truman 1945-53, the vice took over in 1945 and sought nomination in 1948, narrowly defeating Dewey, but again never sought nomination in 1952. Then John F. Kennedy 1961-63, Kennedy was shot dead in 1963 and was replaced by his vice Lyndon B. Johnson 1963-69. Johnson won nomination and re-election in 1964 but did not seek nomination in 1968 for other reasons. Truman and Lyndon Johnson were the only two presidents whose situations resembled that of President Jonathan. If they had sought a second term, I'm sure there would have been some legal challenges, but they both never went for a second term. Incidentally, it was not as a result of Constitutional limitation that they chose not to go for a second time. Truman was rather unpopular to go for a second time, and Johnson was facing massive street protests over the Vietnam War, and a serious challenge by Robert Kennedy.
Since these two men who fell under the 22nd amendment never sought a second term, US courts are largely silent on this subject. It has, however, been thoroughly discussed by US Constitutional experts, and most are in agreement that they were both eligible to contest. Regardless of anybody's opinion, the bottom line is that the US Supreme Court has not spoken on this subject. That leads me to Nigeria's Supreme Court. By the way, if you are wondering why I have dwelt so much on the American experience, well, our Constitution as it relates to Presidential term limit is copied verbatim from the US Constitution. Our Supreme Court have not spoken on this either, but a few years ago they ruled on term limit involving five Nigerian Governors. In that Judgment, our Apex court shortened the tenure of those five governors and sent them out of office to go for re-election. The facts involving these governors were totally different. None of them was denied their Constitutional right to serve up to 8 years as allowed by our Constitution. The Supreme Court prevented them from serving more than 8 years, but still preserved their right to serve up to 8 years if they win re-election.
For the Supreme Court of Nigeria to stop Jonathan from contesting in 2015 would mean that he would be denied the Constitutional right to serve for up to 8 years. He would then be limited to only 5 years since he was first sworn in 2010. The question of term limit can only be decided by any court without prejudice to the right of the Presidential candidate to serve up to 8 years. Apparently neither the US nor the Nigerian Constitution anticipated this problem; otherwise it would have been addressed from the beginning. It will surely make an interesting case, but I suspect that in the end, the Supreme Court would have to defer to Congress, and urge them to amend the Constitution if they wish to avoid a repeat. On Jonathan's part, his argument is straight forward; before 2011 he was merely serving out Yar'adua's term as mandated by our Constitution. His first term as an elected President of Nigeria only began on May 29th 2011, and that is the only time his Constitutional limitation started to count. We shall see what our Supreme Court has to say about all these, I'm confident Jonathan will prevail, but that does not mean I'll vote for him.