By Chuks Nwachuku
The apprehensions over the onset of a constitutional crisis if a new President is not sworn in on 29th May, 2023 is unfounded. There would be no vacuum created automatically in the office of President by 12 midnight on 29th May, 2023 if by reason of pending litigation over the elections a new President is not sworn in on that day. President Buhari would still be lawfully in office after that date going by the provisions of the Constitution. He would still be enjoying his tenure under the Constitution.
I remember my argument with the late Chief Ezeobi, SAN on the tenure of office of Peter Obi when he was sworn in as Governor of Anambra State following his victory at the Supreme Court three years after the election. He had hardly settled down when INEC gave notice of a date for a new election into the same office. Obi went to court again for an interpretation of his tenure. Chief Ezeobi SAN was convinced that the four-year cycle of national elections was inviolate. I took the view, citing the words of the Constitution, that Obi’s four-year tenure took effect from the date that he was sworn in. The Supreme Court was later to approve my position.
We have accepted that the 29th day of May is not sacrosanct to the States. Why do we think that it is sacrosanct to the Federal Government? The Constitution has not created for the President or the Governors a four-year tenure that must end on the anniversary of the date that the occupant of the office took his oath of office. Rather, it has created a four-year tenure that ends WHEN the successor in the office is sworn in. Let us consider section 135 of the Constitution:
- (1) Subject to the provisions of this Constitution, a person shall hold the office of President until –
(a) when his successor in office takes the oath of that office;
(b) he dies whilst holding such office; or
(c) the date when his resignation from office takes effect; or
(d) he otherwise ceases to hold office in accordance with the provisions of this Constitution.
(2) 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; and
Wow! The four-year term created for the President at subsection (2) is SUBJECT to the circumstances mentioned at subsection (1). The primary tenure of Mr President therefore is that he continues in office UNTIL his successor takes the oath of office as provided at section 135(1)(a).
The 29th of May, 2023 is therefore not sacrosanct as the date that President Buhari must vacate office. The apprehension of a constitutional crisis if he does not hand over on that date is unfounded. The idea of Interim Government is unconstitutional and unnecessary.
The Constitution has already envisaged that it is unrealistic to limit an inflexible period of office or a date when a new Government must be inaugurated. The major exigency that the Constitution has specifically provided for at subsection (3) of the same section 135 is when the nation is at war. The reason for this specific provision is to empower the National Assembly to extend the four-year tenure as deemed expedient for a period of six months at a time.
However, section 135(1)(a) is flexible enough to accommodate a situation where for the reason of pending litigation over the results of the national election, a winner cannot be deemed in law to have emerged by 29th May, 2023. President Buhari would have constitutional authority to remain in office until a winner emerges. Nigeria cannot be stampeded into inaugurating a fraud. Neither can the nation be blackmailed with threats of anarchy or the installation of an unconstitutional Interim Government.
There is a fundamental constitutional issue to be resolved in the election petitions which is outside of the usual disputation over lawful votes won. It is whether or not under section section 134(2)(b) of the Constitution, the declared winner of the election fulfilled the constitutional requirement to be so declared, even if the results stood as declared, he not having won 25% of the votes in the Federal Capital Territory (FCT). I firmly stand with Datti Baba-Ahmed, the Vice-Presidential candidate of the Labour Party, that any act of swearing in the declared winner when this issue has not been resolved finally by the courts would be the same as carrying out a revolution or an overthrow of the Constitution and democracy.
The Government is spending so much time and effort trying to put the responsibility to keep the peace on those who feel defrauded by the declared results when plainly the responsibility for caution and maturity is clearly on the Government. They should be cautious not to throw the Constitution overboard and throw the country into anarchy by installing a President in breach of the provisions of the Constitution.
Chuks Nwachuku
April 2023.
Chuks Nwachuku is a legal practitioner and can be reached at [email protected]
