In 2018, the Fourth Amendment to the 1999 Constitution was enacted into law with the introduction of section 137(3) which reads 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.”
Goodluck Ebele Jonathan (GEJ) was sworn into office as President first in 2010 to complete the term of office of Umaru Yar’Adua, who passed on in office. He was subsequently elected into office for a full term in 2011. In 2015, he contested for a second term and lost to now late Muhammadu Buhari.
Some people wish to drag GEJ into the race for the office of President in 2027. They contend that the disqualification contained in section 137(3) does not apply to him because the provision does not have a retroactive effect.
What is retroactivity or retrospectivity of legislation? It simply means, changing the rules of the game after the fact to favor or disadvantage someone or some people. The rule is one that is made to prevent a situation where someone or some people are specifically targeted by legislation either to favor them or deprive them of a right which they have earned under the existing law or impose a liability on them for prior acts or omissions that did not attract such liability at the time that they happened. Retroactivity of legislation is especially serious in criminal matters. The Constitution at section 36(4) thereof specifically forbids a situation where any person is subjected to criminal prosecution for conduct that was not a crime at the time that they engaged in it. In like manner, section 84(3) of the Constitution bars the alteration of the salaries of judicial officers to their disadvantage after their appointment.
It can be seen that in these provisions, unfairness and currency of personal rights are at the roots of the forbidding or bar of retroactivity.
When some argue that section 137(3), as an amendment to the Constitution is not retroactive, I wonder what exactly they mean. There is neither unfairness nor currency of rights operating in favor of GEJ. The new section was introduced long after he completed his term of office and had even taken advantage of the old provision to contest for a second substantive term of office. There is no element of surprise or ambush. The amendment was made in 2018. If GEJ should decide to join the presidential race today, he already knows what the rules of the game are. It would have been different if the amendment was made after nominations for the 2027 election had had opened and GEJ had been nominated or even expressed intention to run. With respect to the 2027 election, for GEJ, section 137(3) of the Constitution is futuristic in application, not retroactive, for the reason that it regulates a future election without any specific regard to GEJ.
Limitations to the Rule against Retroactivity of Legislation.
The rule against retroactivity of legislation is not absolute, like every other rule of law. Exceptions to it include where the legislation in issue is expressly stated to be retroactive or where it is deemed to be so by necessary implication. If the legislation cannot be meaningful or effective without retroactive effect, it will be deemed to be retroactive.
Section 1(3) of the Constitution voids any law that is inconsistent with the Constitution. The effect of the provision is to strip everyone of all rights and privileges that are inconsistent with the provisions of the Constitution. Likewise, section 1(2) thereof forbids that anyone should take control of the Government of the country except in accordance with the provisions of the Constitution. No one can therefore claim to have a right to be President of Nigeria, to take control of the Government of Nigeria, where they are disqualified under section 137(3) of the Constitution.
Amendments to the Constitution, like section 137(3) are therefore retroactive in effect, by necessary implication. When section 137(3) of the Constitution is read in community with section 1(2)&(3), the result is that the latter provisions would be rendered ineffectual if section 137(3) were not retroactive with respect to someone in the situation to which that provision applies.
Constitutional provisions dealing with qualifications for office or for the exercise of power are therefore generally retroactive in effect except they are expressly stated not to be or where their retroactive effect would conflict with other rights created under the Constitution itself, as opposed to outside of it. To bring this home. Suppose the qualification to be appointed a judge of the High Court were amended to increase the age at the bar from the current 10 years to 25 years. Would all the lawyers who are currently 10 years and above but under 25 years claim to be eligible for the reason that the amendment cannot be held to be retroactive? Or if the age for contesting the office of President were increased to 60, would all those currently 45 or over but below 60 claim to be qualified? That would be an absurdity. We have had constitutional amendment increasing the retirement age of High Court judges. No one spoke of any issue of retroactivity or non-retroactivity. If not that we are a poor and desperate country, where people would rather die in office to sustain income earning capacity, both official and unofficial, that amendment would be deemed a disadvantage, save for the right to voluntary retirement.
It can be seen therefore that the principle of non retroactivity of legislation is one that applies to individual rights – that is, provisions that when applied to a person are limited in effect to them. It becomes an absurdity when it is sought to be applied to provisions or situations where the application to an individual would have the effect of putting them in a position to exercise power over others and affect their legal rights and obligations. There is no personal right to be President of Nigeria which can be affected by the retroactivity of section 137(3) of the Constitution.
Finally, it can be argued that the Constitution has given instances where it forbids the retroactivity of legislation. Any addition to the list would be contrary to the Constitution.
GEJ is disqualified from further contesting the office of President of Nigeria for the rest of his life. He is well advised to guard the honor and respect that God has bequeathed him as a statesman of international repute and impact. Let him refuse the desperate calculations of lesser mortals to drag him down to their own level. He will be messed up by litigation if he should step out his present legal cover, which in effect alters his status from that of a defeated incumbent presidential candidate to that of President that left office after completing his tenure.
– Chuks Nwachuku; legal practitioner and leadership and good governance advocate.
