The Single Term Debate
THE learned Deputy President of the Senate and Chairman, Senate Committee on Constitution Review, Senator Ike Ekweremadu, CFR, recently suggested the re-enactment of the doctrine of necessity for the extension of the term of President Goodluck Jonathan and the terms of all the serving Governors by two years (from 2015-2017) to pave the way for a single term for all executive positions. The two-year extension is designed to fob off the President and the Governors, who may frown on a Bill suggesting an amendment to the relevant provisions of the 1999 Constitution (as amended), which almost unequivocally suggest two terms, each of four years for the President and the Governors.
According to Senator Ekweremadu, '…people have been elected for four years, now let everybody complete the four-year tenure for which they have been elected and we can, through the doctrine of necessity, do some kind of transition of two years, in which case, those who are now present occupants, like the President and the Governors who are finishing their terms, could now do another two years that will end in 2017…' This suggestion, according to Senator Ekweremadu, was compelled by the gnawing fears of the sitting Governors (who might be antagonistic towards President Jonathan's perceptible ambition to do a second term in office) that, should he (Jonathan) be re-elected, come 2015, they (such governors) might become the butts of his victimization if denied a second term!
Two things: first, for the reasons adduced hereunder, I am in full accord with the learned Senator's altruistic and undesigning suggestion of a single term for the President and the Governors. I have used the words 'altruistic' and 'undesigning' advisedly: he excluded all the legislative positions, one of which he occupies, from the term-elongation proposal. I am, however, unable to see how the National Assembly can use the doctrine of necessity in a situation in which the 1999 Constitution (as amended) unequivocally and perspicuously provides for a matter that has not been amended therein. Secondly, I keep Senator Ekweremadu's suggestion of a two-year tenure elongation for President Jonathan and the Governors at arm's length. This is because the nation's statutes and, a fortiori, the Constitution of the Federal Republic of Nigeria, 1999 (the fons et origo of the Nigerian legal system) should not be reduced to the sordid level of ingratiation with powerful personalities.
In February, 2010, the 7th National Assembly claimed to have used the classic doctrine of necessity and implied mandate, authored centuries ago by Hugo Grotius (De Jure Belli ac Pacis), Pufendorf (De Jure Naturae et Gentium), Suarez (Tractactus de Legibus) and Lessius (De Justica et de Jure), to make the then Vice-President Goodluck Ebele Jonathan 'Acting President and Commander-in-Chief of the Armed Forces of Nigeria'. The National Assembly had had to resort to a somersaulted doctrine of necessity because the 1999 Constitution, before its amendment in 2011, was silent on what would happen if the President either took a French leave or went on vacation without a written declaration to the President of the Senate and the Speaker of the House of Representatives to that effect, and, in default of that declaration, when should the Vice-President start functioning as Acting President?
The doctrine of necessity or implied mandate is essentially one of an aspect of international law, which deals with the laws of a usurper who is in firm de facto control of a territory, such as in Beirut (in January, 1976, when there was a usurpation of power consisting of arrogation to, and by, the mob of law making and enforcement of powers properly belonging to the sovereign state), or in Biafra, under Ojukwu (1967-1970), or in Rhodesia, under Ian Smith's Unilateral Declaration of Independence (UDI) (1965). Under this doctrine, the laws made by the rebel who is in de facto control of the territory are obeyed by those in the usurped State on the principle that the usurper has an implied mandate from the lawful sovereign, who would rather prefer the usurper's laws to be obeyed during his occupation than to expose the usurped State to anarchy and eventual chaos. The doctrine of necessity or implied mandate, therefore, evolved as an attempt by the lawful sovereign to preserve his realm. The cause celebre for this doctrine was the Zimbabwean case of Madzimbamuto vs. Lardner-Burke (1969), in which the validity of the Zimbabwean laws made by the UDI Parliament under the 1965 Constitution was called into question.
Quite clearly, the doctrine of necessity as used in Nigeria in 2010 to resolve the Yar'Adua-Jonathan impasse was antipodean to the doctrine of necessity known to international law. Be that as it may, a localized version of the doctrine of necessity could be used but only in situations in which the Constitution is either completely silent on an issue or where its provisions are nebulous, such as Section 145 of the 1999 Constitution, before its amendment in 2011. This, I think, explains why, in explaining why the National Assembly had to resort the newfangled doctrine of necessity in 2010, the Senate President, David Mark, stated (correctly in our case) that 'the doctrine of necessity requires that we do what is necessary when faced with a situation that was not contemplated by the Constitution.'
Sections 135 (2) and 137 (1) (b) the provisions of which (for the President) are in pari materia with those of sections 180 (2) and 182 (1) (b) (for the Governors) stipulate that:
'135. (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, in Section 137 (1) (b) thereof, the Constitution (as amended) provides that: 'A person shall not be qualified for election to the office of President if- (b) he has been elected to such office at any two previous elections…'
In view of those lucid provisions that guarantee the right of a sitting President or Governor to contest for a second term, it is impossible for the National Assembly to employ any doctrine, by whatever name, to take away that constitutional right of a first-term President or Governor to seek re-election for a second term without violating the Constitution. In other words, the National Assembly has to amend those sections of the Constitution before it can introduce the much-desired single-term option. All the National Assembly has to do is to expunge the provisions of sections 137 (1) (b) 182 (1) (b) from the Constitution, subject to the provisions of section 9 (1) (2) thereof. Senator Ekweremadu's statement that the underlying cause of the socio-political hostilities and frictions in the country, such as carpet-crossing, 'epistles to the Corinthians', inflammatory speeches, murderous threats, assassinations and even Boko Haram, derives from the problem of political transition has the quality of plausibility.
The proximate cause of political cataclysms in military and democratic Nigeria, since Independence, has been the problem of political succession - Abubakar Tafawa Balewa ruled Nigeria for about 10 years (from 1957-1959 and from 1960-1966): he was overthrown; Ironsi, Mohammed and Shonekan were either semi-colons, commas or colons in the inelegant sentence of political power matrix in Nigeria: each of them spent less than one year in office; Gowon ruled for nine years (1966-1975): he was overthrown. During his first coming as military head of state (1976-1979), Obasanjo was smart: he handed over power to civilians with the speed of a meteor after about three years and a half in office! Shehu Shagari, after a term of four years (1979-1983), was overthrown. Buhari lasted from November, 1983 to July, 1985: he was overthrown. Babangida ruled for eight years (1985-1993): he 'stepped aside', under duress. Abacha ruled for five years (1993-1998): he was overthrown by death. Abdusalami Abubakar ruled for eleven months (June, 1998-May, 1999): he had to surrender power to Obasanjo, from Egbaland, the home place of Abiola, to propitiate the Yoruba over the mysterious death of the latter; Obasanjo ruled again for eight years (1999-2007), during which period the Nigerian polity simmered almost at a boiling point.
In recent times, the People's Democratic Movement (PDM) declared its independence of the People's Democratic Party (PDP), without becoming a political party; an aerie merger of parties, the ACN and CPC, with divergent philosophies, hopes and aspirations, brewed an insipid concoction called the All Progressives Congress (APC); the Nigeria Governors' Forum (NGF) got riven in three by religio-political and ethnocentric feuds; brazen-faced ethnic chauvinists continually make incendiary speeches, tending to create disturbances and violence… All of this is ascribable to the problem of political succession.
When confronted with a similar situation of enervating political instability, the various Latin American republics that had blindly transposed the U.S. two-term tenure system into their countries root, trunk and branch, beat a fast retreat to a single-term system, which restored normalcy. Some of these republics now consider themselves politically mature, after several years of non-military intervention in politics and of consequent political stability, and are beginning to eye the two-term system again.
Like the learned Senator Ekweremadu, I posit that Nigeria, a plural state with a disparate congeries of ethnic nationalities and a much more diverse and populous country than any of the Latin American countries, excepting Brazil, is politically immature for the two-term tenure system.
A single term will rein in so much of the socio-political strife that beleaguers Nigeria today; it will drastically reduce the colossal costs of elections and the mini-battles associated with elections in Nigeria. Only a few days ago, the Independent National Electoral Commission (INEC) announced that the next general elections in 2015 would gulp a whopping sum of N92.9 billion! The 2011 general elections consumed a colossal sum of N122.9 billion! For good measure, inter- and intra-zonal clashes, deriving from bloody political succession imbroglios, will be reduced to the barest minimum, if not eliminated. A patriotic president/governor whose mission is to serve his country, like Rolihlahla Mandela, can always leave definite footprints on the sands of time within a period of four years in office. For every such president/governor, there are countless Nigerians who can succeed him to consolidate, and add to, his achievements. No person is indispensable.
The single-term suggested here should not be more than four years - for governor or president. This will make the incumbent office-holders put their best legs foremost to accomplish much within four years or be booed out of office at the end of their terms. Nigerians should be able to identify a good president/governor within a period of one year, and to wait for five, six or seven years before terminating the appointment of a slothful, dawdling and thieving governor/president would take a heavy toll on the susceptibilities of longsuffering Nigerians. A period of five, six or seven years would be an aeon for Nigerians to wait for. Such a governor/president would have foisted untold and irreparable damage on the socio-politico-economic terrain of the Nigerian nation-space!
If the National Assembly is unable to amend sections 137 (1) (b) and 182 (1) (b) of the 1999 Constitution (as amended) without having to fob off the President and the Governors with two unconstitutional years, then it should let sleeping dogs lie!!
• Akiri, a lawyer, wrote from Lagos