Last week, I wrote an essay on section 137(3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). In essence, it provides that a President who was sworn into office to complete the term for which another person was elected shall not be elected to that office for more than a single term.
The kernel of my essay was that former President Goodluck Jonathan—who is speculated to be preparing to contest the 2027 presidential election—is caught by section 137(3). He succeeded President Umaru Musa Yar’Adua on 6 May 2010 and was sworn in as President to complete the remainder of that first term, which ended on 29 May 2011. President Jonathan then won the 2011 presidential election, was sworn into office on 29 May 2011, and served until 29 May 2015.
Despite the clear wording of section 137(3), some commentators argue that it is inapplicable to President Jonathan because a statute is not supposed to operate retrospectively. In other words, since section 137(3) came into force after President Jonathan had left office, they say it should only take effect from 2017 when it commenced.
I would like to moot what might happen if President Jonathan declares an interest to contest the 2027 presidential election and someone challenges the constitutionality of that decision in court, relying on section 137(3). If his lawyers invoke the principle against retrospectivity as a shield, how would the court interpret section 137(3)? Would it accept the argument that the provision cannot apply because it would amount to retrospective operation?
It is well settled that when a court is invited to interpret a statute, including the Constitution, it may resort to various canons of interpretation. One such approach is the purposive method, which guides judges to look beyond the literal meaning of words and examine the purpose and intention behind them. This is typically invoked where the plain meaning does not provide a clear answer to the dispute. The question, then, is whether the plain words of section 137(3) resolve the eligibility of President Jonathan to contest the next presidential election. In other words, does section 137(3) apply to his circumstances?
How does the Mischief Rule of statutory interpretation work?
– Identify the provision: Section 137(3) of the Constitution of the Federal Republic of Nigeria (as amended).
– Examine the mischief: The problem the provision seeks to cure is the possibility of a person taking the oath of office as President for a third time, whether by succession plus two elections or by any combination that yields three oaths.
– Identify the remedy: The intended solution is to limit anyone who has already taken an oath to complete another’s term to being elected for no more than a single term thereafter, thereby preventing a third oath.
– Interpret to advance the remedy: The court should construe the provision in a way that suppresses the mischief and advances the remedy, avoiding interpretations that would defeat the purpose.
In a moot contest, two axes would likely define the dispute. First, the temporal question: does applying section 137(3) to a person whose succession oath occurred before its commencement amount to prohibited retrospectivity, or is the provision being applied prospectively to a fresh candidacy in 2027? Second, the purposive question: should the court prioritize the mischief—preventing a third presidential oath—over historical sequencing, or limit the clause to post-2017 successions only?
A court attentive to the mischief and the prospective nature of 2027 as a new electoral event could hold that section 137(3) bars any candidacy that would culminate in a third oath, irrespective of when the earlier oath was taken. Conversely, a court focused on strict non-retrospectivity could conclude that the provision cannot disqualify a candidate by reference to a pre-commencement oath. Which view prevails would turn on how the court balances textual clarity, commencement, and constitutional purpose.
Your guess is as good as mine.
@Okoi Obono-Obla
