Lawyers are divided over the eligibility of former president Goodluck Jonathan to contest the 2027 presidential election.

While some say he has only served one term and can contest for president in 2027, others claim that he has been sworn in twice and is not qualified to run.

The 2018 amendment to the 1999 Constitution by the National Assembly bars an individual from being sworn in twice into the office of the president of Nigeria.

The People’s Democratic Party (PDP) has zoned the presidential ticket to the southern part of Nigeria, with the party’s leadership meeting Jonathan recently to persuade him to pick the PDP’s presidential ticket in 2027.

There are also reports that the New Nigeria People’s Party (NNPP) and the African Democratic Congress (ADC) are also willing to hand their presidential ticket to Jonathan, if he is willing to run in 2027.

Read also: Wike slams politicians pushing Jonathan’s 2027 bid, cites 2015 betrayal

But sources close to the former president say despite pressure from politicians and political parties, Jonathan has not made up his mind.

Pundits say Jonathan’s candidacy is sellable and more sensible to power brokers because he is a southerner by origin, but with long-standing relationships with the northern elite.

Also, Jonathan could give the South its remaining four years at Aso Rock, after which power would rotate back to the North in 2031. The North is also not happy with the current administration, with many politicians from the region accusing the incumbent President Bola Tinubu of marginalizing the region.

The presidency has denied such claims.

The logic may sound simple, but the question of Jonathan’s eligibility under the 1999 Constitution has turned into one of the most debated legal and political puzzles of the coming election.

A constitutional dilemma

Jonathan, who was vice president to the last Umaru Musa Yar’Adua, served as acting president for months due to Yar’Adua’s prolonged illness, which left him incapacitated.

He was formally sworn in as substantive president in May 2010 following Yar’Adua’s death.

In 2011, Jonathan contested and won a full term, which ended in 2015 when he was defeated by Muhammadu Buhari. By that account, he has only served one elected term.

But in 2018, the National Assembly passed the Fourth Alteration Act to the Constitution, introducing provisions aimed at closing gaps around tenure elongation.

Section 137(3) reads: “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.” A similar clause was inserted into Section 182 for governors.

The question then, does this bar Jonathan from seeking another shot at the presidency in 2027?

Lawyers react

Ajibola Oduwole, a Lagos-based lawyer, said Section 137(3) of the Nigerian Constitution says a person who was sworn in to complete a term – for which another person was elected as president – shall not be elected to such office for more than a single term.

However, he argued that Jonathan’s situation is unique, as he took over after President Umaru Yar’Adua’s death in 2010 and later won the 2011 presidential election.

According to him, there are also court judgments that have affirmed his constitutional right to run for presidency again. For instance, a Federal High Court in Yenagoa, Bayelsa State, ruled in favour of Jonathan’s eligibility, stating that the provision cannot be applied retroactively.

Recently, Femi Falana, Senior Advocate of Nigeria (SAN), had argued that Jonathan cannot contest again, citing constitutional provisions.

But Azibaola Robert, lawyer and Jonathan’s cousin, weighed in, stating that Jonathan is “100% constitutionally and legally qualified” to contest the presidency in 2027 if he chooses to.

Joseph Adewunmi, a Lagos-based senior lawyer, said Jonathan is eligible to contest the 2027 presidential poll based on existing judgement of the Federal High Court in Yenagoa, noting that since the ruling has not been set aside, it should be respected.

The lawyer further argued that since Jonathan left office before the constitution was amended in 2018, he could not be affected, noting that any individual comment against such is just an opinion.

Also, Monday Ubani, a Senior Advocate of Nigeria (SAN), said: “Jonathan’s first swearing-in was in 2010, following the death of President Umaru Musa Yar’Adua. This did not count as an elected term.

“It is not by election, it’s clearly by disposition of the law, complying with Section 146 of the 1999 Constitution,” Ubani said.

Ubani argued that Jonathan’s only legitimate electoral victory was in 2011. He reminded Nigerians that even before the constitutional amendment, the courts had already spoken.

“In 2015, when he wanted to re-contest, somebody went to court, and Justice Mudashiru ruled that the president then was eligible to run… The former oath that he took in 2010 was not by virtue of election, but by virtue of succession,” he said.

For Ubani, the Fourth Alteration cannot be applied retroactively. “Every law is prospective. If there was an amendment in 2017, that came into operation in 2018, how could that law be applicable to vested rights that took place in 2010 to 2015?” he asked.

“My view is that President Jonathan is clearly eligible under the 1999 Constitution to run for 2027… despite the provision of Section 137(3) that came into existence in 2018,” he said.

Documents from Jonathan’s office

Meanwhile, a document presented to the media over the weekend by Jonathan’s office showed a previously unpublished judgment delivered by a Federal High Court in Yenagoa, Bayelsa State, affirming that Jonathan was qualified to contest the presidential election.

Two members of the APC in Bayelsa had gone to court in 2022 to determine Jonathan’s eligibility, given the high stakes northern lobby to mobilize him to replace late President Muhammadu Buhari – before President Tinubu eventually clinched the APC ticket.

The judgment delivered by Justice Isah Dashem of the Federal High Court, Yenagoa, on May 27, 2022, put to rest the contentious constitutional amendment of Section 137(1)(b) and 3, as it affects Jonathan.

The judgment, which has not been appealed or set aside, remains subsisting, lawyers say. And it is now out of time for any appeal after three years since delivery.

In the 2022 suit with number: FHC/YNG/CS/86/2022, the two APC members sued Jonathan, APC and the Independent National Electoral Commission (INEC), over rumour that the APC had planned to field the former president as its presidential candidate in the 2023 general elections.

Their grouse was that Jonathan’s participation would ruin the chances of the APC, having taken oath of office twice as president.

The sole issue raised for determination was “whether, in view of the provisions of Section 137(1)(b) and (3) of the Constitution of the Federal Republic of Nigeria 1999 (as altered) and the fact that Jonathan had earlier been sworn-in as the President of the Federal Republic of Nigeria in 2010 and 2011 respectively, whether he is qualified to contest for the office of the President of the Federal Republic of Nigeria in the 2023 general elections to be organized by the 3rd Defendant.”

The plaintiffs, Andy Solomon and Idibiye Abraham, through their lawyer, Seigha Egbuwabe, further urged that if the answer to (1) above was in the negative, then the court should determine “Whether the no 2” Defendant was entitled to field the 1st Defendant as its presidential candidate in the 2023 general elections.” (BusinessDay)