OPINION: Retroactive Laws And Jonathan’s Eligibility: A Constitutional Crossroads

Every election cycle in Nigeria throws up its own constitutional headache. As 2027 approaches, one question refuses to die: Can former President Goodluck Jonathan run again?

The storm centres on Section 137(3) of the 1999 Constitution, inserted by the Fourth Alteration Act No. 21 of 2018. It reads:
“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.”
Simple on paper. Messy in practice.

The Jonathan Timeline: Why This Isn’t Academic

Jonathan took the oath twice. First, on 6 May 2010, after President Umaru Musa Yar’Adua’s death. He completed that term. Second, on 29 May 2011, after winning his own election. He left office in 2015. Total: 6 years.

If he contests and wins in 2027, he would serve till 2031 — making 10 years in all. That’s two years beyond the 8-year spirit many read into the Constitution. But does Section 137(3) actually catch him?

The Retroactivity Problem

The snag: Jonathan left office in 2015. Section 137(3) came alive in June 2018. Can a 2018 amendment disqualify a man for actions he took in 2010 and 2011?

Nigerian courts don’t like retroactive punishment. The Supreme Court put it bluntly in Adesanoye v. Adewole (2000) 9 NWLR (Pt. 671) 127:
“A statute is to be deemed retrospective which takes away or impairs any vested right acquired under existing laws… Courts lean against interpreting a statute so as to deprive a party of an accrued right.”
Same principle in FRN v. Ifegwu (2003) 15 NWLR (Pt. 842) 113: “Retroactive laws which impose criminal penalties are an affront to liberty”. While this isn’t a criminal case, the logic holds: you don’t change the rules after the game.

The Federal High Court, Yenagoa agreed in Andy Solomon & Idibiye Abraham v. Dr. Goodluck Ebele Jonathan & Ors, Suit No. FHC/YNG/CS/86/2022, delivered 27 May 2022. Justice Isa Hamma Dashen held that Section 137(3) “cannot be used retroactively to question Jonathan’s eligibility to run for president”. That decision hasn’t been overturned. Earlier, in Cyriacus Njoku v. Dr. Goodluck Ebele Jonathan (2015, FCT High Court), the court also cleared him.

Two Senior Advocates, Two Constitutions

Mike Ozekhome, SAN argues eligibility. His point: Jonathan’s rights vested before 2018. The amendment is “prospective,” not “retrospective.” No law says otherwise.

Femi Falana, SAN disagrees. For him, the text is king: “Jonathan was sworn in in 2010 and 2011. That is two swearing-ins, and the law applies to him like everyone else”. He warns that allowing Jonathan back risks a “third term” by the back door , 10 years total.

Even retired jurists are split. Justice Ayo Salami, PCA (Rtd) says the 2018 amendment “explicitly bars” Jonathan. But Dr. M.O. Ubani, SAN counters that 2010 was “succession under Section 146(1), not an elected term”. So Jonathan has only one elected term.

What the Courts Actually Do With Retroactive Laws

The Supreme Court has been consistent: unless a statute says it’s retroactive, it isn’t. In Gusau v. APC (2019) 7 NWLR (Pt. 1670) 185, the Court refused to apply the 4th Alteration’s new 14-day appeal limit to cases filed before it commenced. Same reasoning in ACCUGAS v. FIRS, FHC: if the National Assembly wanted FA 2019 to apply backward, “it would have said so”.

So, until the Supreme Court says otherwise, Andy Solomon remains the law. And as Oba Maduabuchi, SAN noted recently, relitigating it now is “an abuse of court process” because no appeal was filed.

Foreign Parallels: How Others Handle It

Nigeria isn’t the first to face this. The U.S. 22nd Amendment limits presidents to two terms. When it was ratified in 1951, Congress made it clear: “This Article shall not apply to any person holding the office of President when this Article was proposed”. Truman, then president, was expressly grandfathered. No retroactivity.

More recently, U.S. Congress members keep proposing term-limit amendments that expressly exclude past service: “any term that began before the date of ratification… shall not be included”. The point? If you want retroactivity, you write it in.

Kenya’s 2010 Constitution capped presidential terms at two. It didn’t bar Mwai Kibaki, who’d already served two terms before 2010, because the clause wasn’t retroactive. South Africa is similar , term limits bind forward, not backward.

My Professional View

With respect to my learned seniors on both sides, Jonathan is currently not disqualified. Three reasons:

No retroactive language: Section 137(3) doesn’t say it applies to past swearings-in. Adesanoye and Gusau foreclose implied retroactivity.

Binding judgment stands: Andy Solomon v. Jonathan (2022) is extant. Until set aside by the Court of Appeal or Supreme Court, it’s the law.

Locus standi problem: in my view, any pre-emptive suit is speculative. The Supreme Court in Michael Idachaba & Ors v. University of Agriculture, Makurdi insists damage must be complete. INEC hasn’t screened Jonathan. No candidate, no injury.

That said, Falana’s policy point is real. If Jonathan runs and wins, Nigeria would have a 10-year president. That may offend the spirit of rotation and tenure limits, even if it survives the letter. Parliament could fix this by amending Section 137(3) to state whether it’s retroactive. Clarity ends litigation.

Conclusion: Law vs. Politics

Jonathan’s case is now a constitutional Rorschach test. Literalists see two swearings-in and stop. Purposivists see a 10-year problem. Courts, bound by stare decisis, see a 2022 judgment that hasn’t been overturned.

Until the Supreme Court speaks or Jonathan picks up a nomination form, this remains a brilliant debate for law faculties and a warning to lawmakers: if you want a law to reach backwards, say so. Clearly. In English. And in the Gazette.

Nigeria’s democracy is young. It can’t afford to learn constitutional law through crisis.

By Charles Ude, Esq, an Abuja-based legal practitioner, can be reached via email at [email protected]