The Impropriety of Sections 137(3) and 182(3) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No 16) Act, 2017

By Akintayo Balogun Esq. 

The latest amendments to the Constitution of the Federal Republic of Nigeria, which introduced Sections 137(3) and 182(3) of the Constitution amongst others, have raised clouds of dust in the current political dispensation in Nigeria. The amendment which for this article will be referred to as ‘additions’ to the Constitution went without much notice until the subject of former President Jonathan contesting for the seat of the President of the Federal Republic of Nigeria for a second term came to the fore. The then President had initially spent 13 months in office while completing the terms of his predecessor, former President Umaru Yar’Adua before contesting for the election proper in 2011. The said additions to the Constitution reads thus:  

Section 137(3) of the Constitution

“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.’

Section 182(3) of the Constitution 

“A person who was sworn in to complete the term for which another person was elected as Governor shall not be elected to such office for more than a single term.’

These additions to the Constitution came into force in 2018. The retrospective effect (or not) of the said constitutional provision has become a subject of heavy debate. I however believe that it is a position of the law that needs to be revisited and properly determined at the apex court of the land. The above sections imply that when a Vice President or Deputy Governor in Nigeria takes over the seat of the President or a Governor who steps down from office, either by reason of resignation, death, impeachment, or otherwise as provided for in the Constitution and completes the remaining term in office of the President or Governor respectively, such persons are only entitled to contest for just a single term after serving out the term of their predecessors. This is irrespective of how short or how long the completed tenure is. In other words, even if a Governor or a President is impeached or he resigns or he dies a month or a week or even a day to the end of his tenure and his deputy or vice is sworn in, that deputy or vice is only allowed to serve for one term of four years and nothing more and is automatically barred from ever serving in the same office for the rest of his life.

Contradictions of Sections 137(3) and 182(3) of the Constitution

The focus of this article, therefore, is on whether the additions made in Sections 137(3) and 182(3) of the Constitution are justifiable and whether they do not contradict subsisting provisions of the Constitution as well as extant judicial authorities on the subject matter. 

Firstly, the above provision of the Constitution contradicts Sections 137. (1) and 182. (1) respectively of the Constitution which provides thus:

137. (1) A person shall not be qualified for election to the office of President if – (b) he has been ELECTED to such office at any two previous elections; 

182. (1) No person shall be qualified for election to the office of Governor of a State if – (b) he has been ELECTED to such office at any two previous elections;

The catchphrases in these provisions are “he has been ELECTED to such office at any two previous elections”. A person who is sworn in on two occasions is different from a person who has been elected to that same office on two previous occasions. It is like in one breath, I am allowed to be elected twice by virtue of Sections 137(1) and 182(1), and in another breath, I am restricted from being elected twice having taken the oath of office on two separate occasions virtue of Sections 137(3) and 182(3). They have only taken the oath of office on two previous occasions which differ from being elected on 2 previous occasions. This to me is the Constitution being made to contradict itself. 

Furthermore, juxtaposing the above-referred sections of the Constitution, to Sections 135 (2) and 180(2)(a) of the Constitution which provides thus: 

135(2) (a) Subject to the provisions of subsection (1) of this section, the President shall vacate his office at the expiration of a period of four years commencing from the date, when –(a) in the case of a person first elected as President under this Constitution, he took the Oath of Allegiance and the oath of office; 

180(2)(a) Subject to the provisions of subsection (1) of this section, the Governor shall vacate his office at the expiration of the period of four years commencing from the date when – (a) in the case of a person first elected as Governor under this Constitution, he took the Oath of Allegiance and oath of office; 

These provisions make it abundantly clear that persons can be elected to serve for a period of four years, and by virtue of sections 137(1) and 182(1), they can serve for another four years after being re-elected. However, by virtue of the latest addition to the Constitution (the subject matter under review), a person who is sworn in to complete the term of his predecessor does not enjoy this privilege provided for in the combined reading of Sections 137(1) and 135(2) of the Constitution for the President and Sections 180(2) and 182 (1) of the Constitution for the Governor. He is only restricted to the pieces of time he is able to inherit from his predecessor and then one full term in office and nothing more.   

These positions of the statutes before the latest addition to the Constitution had also enjoyed judicial review in the case “In Marwa v. Nyako (2012) 6 NWLR (Pt.1296) 199 at 387. The Supreme Court while deciding on issues surrounding the office of the governor of Adamawa State, held to the effect that Section 180 (1) and (2)(a) of the 1999 Constitution of the Federal Republic of Nigeria has prescribed a single term of four years and if a second term, another period of four years and not a day longer. 

With these positions of the Constitution and judicial authorities, it is surprising that the legislatures, probably on a mission to witch hunt, have restricted the time allowed for persons to remain in office. The case of former President Goodluck Jonathan is a typical example of the effect of the unjust addition to the Constitution. Following the death of then-President Umaru Yar’Adua on May 5, 2010, former President Jonathan as the then Vice President, took an oath of office to complete Yar’Adua’s term as President. The term lasted for 1 year and 24 days. He contested and won the general election in 2011 and was again sworn in for a term of 4 years on May 29^th, 2011. He however lost the bid to be re-elected into the same office in 2015. Now in total, former President Jonathan has spent a total of 5 years and 24 days in office. In the event that the courts eventually decide that the amendment to the Constitution that came into force in 2018 has a retrospective effect, it automatically means that former President Jonathan is barred for life from contesting the office of the President of the Federation and any other person in his shoes. 

Where a person is sworn in to take over the subsisting tenure of a predecessor, even if it is for one hour, the person automatically suffers the fate of one term in office. I think my mind, this legislation was done without a holistic consideration of the issues involved. 

These additions now render the other provisions of the Constitution as well as other judicial authorities overtaken by the same Constitution. The additions made to the Constitution deprive affected persons of the 8 years they are constitutionally and by judicial authorities entitled to enjoy. The provision is unfair and unjust to whoever falls victim. Everyone who is a deputy or vice would be wary of being sworn in to take over a live tenure because that swearing-in serves as a barrier to the enjoyment of their substantive political years in office in the future as guaranteed in the Constitution. 

To my mind, the amendment should have provided the effect that whatever it is, a person cannot spend more than 8 years cumulatively and not make amendments that will adversely affect interested parties and shortened the number of years they are entitled to in the office. 

I am of the humbly view that these provisions of the Constitution be reviewed or challenged in court. It was not done in good faith or with reasonable and holistic consideration of the issues. To my mind, the addition that was made to the Constitution should have sought for a way to remedy the situation rather than totally blocking the rights of a person to be elected to office simply because he took over the office of his predecessor even if it had lasted for just one day. The Act of the National Assembly should have been made in a way to restrict a person from staying not more than 8 years cumulative in office. The addition made to the Constitution is a contradiction of other extant provisions of the same Constitution and judicial authorities and same ought to be nullified. They are merely witch-hunting and calculated to frustrate the political ambitions of other perceived rivals.

Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice and based in Abuja, FCT. A prolific writer, public affairs analyst, and commentator on national issues. 

akinson6@gmail.com.