The controversy surrounding former President Goodluck Jonathan’s eligibility to contest future presidential elections has evolved into one of the most significant constitutional debates of Nigeria’s Fourth Republic. Beyond partisan politics, the litigation raises profound questions about constitutional succession, retrospective disqualification, public interest litigation and the judiciary’s responsibility in resolving constitutional uncertainty.
At the centre of the dispute lies Section 137 of the 1999 Constitution and the Fourth Alteration introduced in 2018. Opponents of Jonathan’s possible return argue that having first assumed office in 2010 following the death of President Umaru Musa Yar’Adua and thereafter serving an elected tenure from 2011 to 2015, another successful presidential bid would amount to an unconstitutional third tenure. Jonathan’s defenders, however, insist that he was elected only once, since his 2010 accession arose from constitutional succession rather than electoral mandate.
That distinction is the constitutional heart of the matter. The Constitution disqualifies a person who has been “elected” to the office of President at two previous elections. Jonathan succeeded to office under Section 146 following Yar’Adua’s death; he did not emerge through a separate presidential election in 2010. Constitutionally, succession serves as an emergency continuity mechanism designed to preserve governmental stability rather than confer a fresh democratic mandate.
Comparative constitutional jurisprudence strongly supports this reasoning. The clearest parallel exists in the United States under the Twenty-Second Amendment to the United States Constitution. The amendment provides that where a Vice President succeeds a President and serves more than two years of the predecessor’s tenure, he may thereafter be elected only once. However, where the inherited tenure is less than two years, he may still contest two full terms. The American framework therefore recognises that inherited tenure is qualitatively different from elected tenure. Jonathan completed roughly one year of Yar’Adua’s tenure, well below the American constitutional threshold.
The jurisprudential logic behind that doctrine is compelling. Democracies must preserve constitutional continuity without later punishing those who merely fulfilled constitutional necessity — otherwise the Constitution would paradoxically penalise compliance with its own succession provisions.
The Jonathan litigation also raises the equally important issue of retrospectivity. The Fourth Alteration, which introduced additional restrictions on succession-related tenure arrangements, came into force in 2018 — years after Jonathan had already completed his presidency. Constitutional democracies generally presume that laws operate prospectively unless expressly stated otherwise. Jurisdictions such as Australia and Canada have consistently resisted retrospective political disabilities unless legislative intent is unmistakably clear. Applying the 2018 amendment retroactively to Jonathan would therefore offend foundational principles of legal certainty and legitimate expectation.
Perhaps the most controversial aspect of the case is not even the tenure question itself, but the court’s apparent reliance on locus standi to dismiss the plaintiff’s claim. That development opens a much wider constitutional debate about the future of public interest litigation in Nigeria.
Traditionally, Nigerian courts adopted a restrictive approach to standing, particularly following the celebrated decision in Adesanya v President of Nigeria, where the Supreme Court insisted on direct personal injury before a litigant could challenge governmental action. Over time, however, constitutional jurisprudence globally has moved toward liberalisation of standing in public law matters.
In India, the Supreme Court revolutionised public interest litigation by holding that procedural technicalities should not obstruct constitutional accountability. South Africa similarly permits litigation brought in the public interest, recognising that constitutional violations often affect society collectively rather than individually. Modern constitutionalism increasingly accepts that constitutional enforcement is a shared democratic responsibility.
This is precisely why the Jonathan case presents an important institutional dilemma. Presidential eligibility is not merely a private dispute between political actors; it concerns the integrity of the electoral process itself. Every voter arguably possesses sufficient constitutional interest in determining who may legitimately aspire to the nation’s highest office. Excessive reliance on locus standi in such matters risks insulating constitutional questions from judicial clarification.
To be fair, courts are understandably cautious about politically motivated litigation masquerading as constitutional activism. Nigeria’s judiciary has increasingly become a battlefield for speculative suits aimed more at political disruption than genuine constitutional interpretation. Judges therefore sometimes deploy standing doctrines as defensive mechanisms against judicial abuse. Nonetheless, there remains an important distinction between filtering frivolous litigation and avoiding substantive constitutional engagement altogether.
The stronger judicial approach in matters of this magnitude is substantive adjudication rather than procedural avoidance. Courts strengthen constitutional democracy when they directly confront difficult constitutional questions and provide authoritative interpretive guidance. A reasoned determination on whether succession constitutes “election,” or whether constitutional amendments apply retrospectively, contributes far more to constitutional jurisprudence than dismissing a claim principally on standing or capacity grounds.
Ultimately, the Jonathan litigation is about far more than one politician’s future ambitions. It is a test of how Nigeria understands constitutional succession, democratic participation and judicial responsibility in constitutional governance. Whether the courts ultimately uphold or reject Jonathan’s eligibility may matter politically, but the larger constitutional significance lies in how the judiciary balances procedural restraint against its duty to clarify the Constitution itself.
For constitutional democracies, the danger is not merely in reaching the wrong answer. Sometimes, the greater danger lies in refusing to answer the constitutional question at all. Having clarified the issue on eligibility, the court should have preserved the locus of the plaintiff whose action ignited the fireworks on the constitutional question.
Dr. Ogwuche is the President, Campaign for Social Justice and Constitutional Democracy in Africa and is based in Port Harcourt. He can be reached at festusogwuche@gmail.com
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