This effort is inspired by the need to put into proper perspective the questions of the eligibility of General Muhammadu Buhari and President Goodluck Ebele Jonathan to contest the upcoming presidential election. Buhari’s qualification to contest the election is being challenged on the allegation that he failed to present a copy or copies of his educational certificate(s), while many consider Jonathan disqualified because he has been sworn into the office of President for two consecutive times.
The issue of General Buhari’s qualification or disqualification will first be attended to here, being less complex and easier to dispense with than the issues relating to the disqualification of President Jonathan. Buhari claims that he was educated up to school certificate level; and that his certificate was with the military authorities –a claim that triggered the suspicion that he might not have told the whole truth about his educational qualification. This suspicion was heightened when the military authorities did not only deny having possession of his certificate but also announced that what they had in his records was a recommendation from the principal of the school he claimed to have attended. The fact that the school in question came to state that he actually attended the school, and published a statement of the West African School Certificate (WASC) result of the General did not assuage those calling for the Independent National Electoral Commission (INEC) to disqualify him. Many lawyers who claim to have exceptional expertise on the law regarding elections declared that INEC could disqualify General Buhari on account of his failure to present his certificate. Some other lawyers asserted that Buhari may have subscribed false information in the affidavit and/or documents he submitted to INEC. Relying on the provisions section 31(5)-(6) of the Electoral Act, 2010 that provides that “(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false and (6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election” some lawyers have even taken out suits at the Federal High court praying that court to disqualify him on the reasoning that he did not provide proof or evidence of his educational qualification in his INEC Nomination Form in line with the qualification criteria set out in Section 131(d) of the 1999 Constitution (as amended).
First, those who urged INEC to disqualify Buhari totally misconstrue the limits of INEC’s administrative powers to disqualify a candidate for elections and its lack of judicial powers to adjudicate and deliver a decision on the qualification or disqualification of a candidate for election. Neither the Constitution nor the Electoral Act confers on the Independent National Electoral Commission (INEC) the power to disqualify a candidate for an election. See Action Congress vs. Independent National Electoral Commission (2007) 12 NWLR (Pt.1048) 222. There was a point in time in the history of elections in Nigeria when the law of the land granted the Electoral Body the power to disqualify candidates. Section 21(8) and (9) of the Electoral Act (2002) granted INEC the power to disqualify candidates, but those sections were excluded in the 2006 and 2010 Electoral Acts. Even if those provisions were retained they would have been voided on account of the provisions of Section 137, which do not authorize the National Assembly to grant such powers to INEC. See AC vs. INEC supra.
Non-submission of educational certificates or other qualification credentials does not disqualify a person. What is required of a candidate is to subscribe information about his or her qualification in INEC Form CF001, which is the Affidavit in support of Personal Particulars of persons seeking election to Office/Membership of President. See Terver vs. Peoples Democratic Party, SC.236/2013, and Action Congress vs. Independent National Electoral Commission (2007) 12 NWLR (Pt.1048) 222.
This, however, cannot be interpreted to mean that INEC does not have a duty to ensure that candidates comply with the provisions of the Constitution regarding qualification. Section 31 (2)-(6) of the Electoral Act, 2010 (as amended) and other similar provisions in the earlier Electoral Acts are meant to ensure that only qualified candidates contest elections. After a candidate has submitted his or her particulars along with the sworn affidavit, INEC is enjoined to publish the particulars and the affidavit in the candidate’s constituency within seven days to enable members of the public to challenge the veracity of the candidate’s qualifications. See AC vs. INEC, and Kakihvs. PDP supra.
The provisions of Section 31(4)-(6) of the Electoral Act, 2010 give the impression that a candidate can be disqualified on account of giving false information of any kind in the affidavit or any document submitted by a candidate to INEC. With due respect, those provisions will only be valid and operational if the false information concerns – and is limited to – the candidate’s qualification as prescribed in the Constitution. If it is interpreted to mean false information of any kind, then it will be challenged on at least two grounds. First, because the Constitution has covered that field and second, because it will be inconsistent with the Constitution. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has made provisions for the qualification of a person for election to the office of President in Section 131 and disqualification of a person for election to the office of President without any enabling power to the National Assembly to prescribe further conditions. So long as the Constitution has covered that field, any attempt by the National Assembly to make further enactments or provisions concerning or touching on that field without the express authorization of the Constitution will amount to a trespass into that field. See INEC v. Musa (2003) 3 NWLR (Pt.806)72.
On the second ground, the sum of the judicial reasoning on it is that there should be no disconformity between a statute and the Constitution on any subject or issue whatsoever. Once, as in this case, the conditions, situations or happenstances under which a person is disqualified from contesting an elective post or office are exhaustively entrenched in the Constitution; they cannot be amended, varied or expanded by legislation. See AG Abia State vs. AG Federation (2002) 6 NWLR Pt. 763 Page 264.
Since Section 131 of the Constitution is not self-executing, Section 31 of the Electoral Act, 2010 is wholly and solely meant to give effect to that section and not to add to the conditions for disqualification prescribed in Section 137 of the 1999 Constitution. The Electoral Act cannot add to or subtract from the elaborate provisions on the subject of qualification and disqualification for election into office of the President provided for by the Constitution of the Federal Republic of Nigeria, 1999. See AG Abia State vs. AG Federation (2002) 6 NWLR Pt. 763 Page 264.
A candidate does not need to go beyond subscribing or swearing to an affidavit, since, by doing so, he or she is taken to be telling the whole truth and nothing but the truth. Where, therefore, a candidate subscribes or swears to an affidavit stating that he or she is qualified, INEC is bound to accept the rebuttable presumption that the candidate is qualified. It is the duty of members of the public to present to the court facts that can rebut that presumption.
In determining whether or not President Jonathan is disqualified under Section 137(1), the Court of Appeal and, invariably, the Supreme Court will have to make a community reading of Sections 135, 136, 141, 142 and 146 of the Constitution. Goodluck Jonathan was elected as Vice President to Umaru Musa Yar’Adua pursuant to mandatory provisions of Sections 141 and 142 of the Constitution. Yar’Adua’s four-year tenure was to end on the 29th of May, 2011, unless re-elected into that office for another four years. However, Yar’Adua fell ill in 2009 and breathed his last on 5th May, 2010. Jonathan was sworn in as President on the 6th of May, 2010 pursuant to Section 146 of the Constitution. He contested the Presidential election in 2011 and won. He was sworn in for the second time on May 29, 2011.
One school of thought is of the view that because the Constitution prescribes an unsplitable president/vice president ticket at the stage of the presidential election, Jonathan was indeed voted into the office of President in 2007 and as such has been elected into that office twice and therefore disqualified under Section 137 (1) of the Constitution. Relying on the provisions of Section 135 (1)(a) &(b) this school contends that the tenure of late President Umaru Musa Yar’Adua’s ended when he died on May 5, 2010 or when Jonathan took the oath of office of the President.
Therefore, the claim that Jonathan completed the unexpired tenure of late Yar’Adua’s is not supported by Section 135(1) of the Constitution. It is the view of this school Jonathan’s first tenure started on the 29th of May, 2007 and ended on the 29th of May, 2011 by virtue of Section 135(2)(b) of the Constitution.
This school stretched that Section 137(1)(b) cannot be interpreted to make the number of years the President spends in office irrelevant and thereby making it possible for a Vice President who became President under Section 136 (1) to be in office for 12 years. This group relies on the dictum of the Supreme Court in INEC vs. Nyako that “From the language used in Section 180 of the Constitution, it is very clear that the Constitution intended that a governor of a State shall have a tenure of four years from the date he took the Oaths of Allegiance and of Office and nothing more, though he may spend less where he dies, resigns or even impeached. In all, a governor has a maximum tenure of eight (8) years under the 1999 Constitution.” According to this school, interpreting the word “election” with stultifying narrowness would defeat the intention of the framers of the Constitution. This is so because it will mean that the same Constitution that will not allow a person who is elected into the office under Section 134 of the Constitution to remain in office a day longer than four (4) years will, at the same time, grant a Vice President four free years under Section 136.
The opposite school, however, views the issue differently. To this school, President Jonathan’s first swearing-in into the office of President was gratis since he was then elected as Vice President, and fortune only smiled on him upon the death of Yar’Adua who was elected into the office. Jonathan was first elected as President at the second election in which he stood as presidential candidate.
This school insists that Section 137 (1)(b) is a disqualifying section and as such should be interpreted strictly. Since that provision speaks about an election, the number of years Jonathan spends in office is irrelevant. The issue here is whether or not Jonathan has been elected into the office of President at two previous elections. The arguments about the Constitution not contemplating a President to live in office more than eight years is unfounded as the kernel or operative words in Section 137(1)(b) are “elected to such office at any two previous elections” and not that he cannot spend more than eight (8) years in office.
There is no judicial precedent on this issue. It will be interesting to see how the Supreme Court handles this issue.
*Kargbo, Chief of Staff to former FCT Minister, Adamu Aliero, is a lawyer based in Abuja.