Why Section 137 Does Not Bar President Jonathan

Delta State based lawyer, Jesutega Onokpasa in this piece reviews assertions on the eligibility of President Goodluck Jonathan for the 2023 presidential election in the light of the new provisions in Section 137 of the Constitution

The general principle of law is that a law is never retrospective unless it clearly, specifically and unambiguously says so. Of course in law, retroactiveness is of the same species as retrospectiveness.

Thus, the Constitution, for instance, specifically provides that the legislature shall not enact retroactive criminal legislation, not merely so as to generally preclude the enactment of such criminal legislation, but to, in all cases, render such legislation unconstitutional, even if it were specifically provided, therein, that such legislation shall be retroactive.

Therefore, while the constitution envisages the enactment of retrospective non-criminal legislation, in so far as such legislation is specifically retrospective, it comprehensively forbids similar legislation when such legislation is criminal legislation, leaving no room for such legislation to be lawful even if it were specifically stated to be of retroactive effect.

This particular mindfulness on the part of the Constitution (if we may say so) only serves to buttress the point that for any non-criminal legislation to be of retrospective effect, it shall clearly, specifically and unambiguously provide as such.

All laws, be they mere regulations made pursuant to delegated authority, constitutional provisions to which all other laws must conform, or, the most sacred, sacrosanct, inviolable, immutable and eternal principles of natural law, are interpreted, and are interpretable, in accordance with the exact same cannons of interpretation and devices and norms of illumination. If the Constitution requires laws to only be retrospective if they are specifically enacted as such, the constitution, itself, or any provision thereof, can only be retrospective if it is specifically provided therein, as such.

Jonathan And Section 137

I must therefore differ with Femi Falana, SAN, whose opinion is to the contrary, and insist that Section 137(3) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which came into effect in 2018, is, with respect, not at all retrospective, and, in fact, only binds those who come into the scenario it envisages, from 2018 onwards.

Indeed, that the Constitution does not envisage that anyone should spend more than a total of eight years as President or Governor is irrelevant to someone in the position of former President Goodluck Jonathan, even as much as the implication that he would then have ended up spending a total of nine years as President, should he now run and win, is entirely beside the point. Section 137(3) came after he succeeded late President Umaru Yar’Adua, and, being not a provision of retrospective effect, it does not bind him because it cannot, in law.

Onokpasa, a lawyer, writes from Warri.

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