THE questions arising from the above provision are as follows: Why should the Vice President been sworn-in as President? Why is the Constitution silent on the eligibility of such Vice President who assumes the office of President under Section 136 (1) of the Constitution to be elected subsequently as President in two tenures?
Section 136 (2) of the Nigerian Constitution provides the interlink between elected President and the Vice President in a single presidential ticket.
The Section states that where the persons duly elected as President and Vice President die or are unable for any reason whatsoever to assume office before the inauguration of the National Assembly, the Independent National Electoral Commission shall immediately conduct an election for a President and the Vice President.
The interpretation of this provision in my humble opinion is that a presidential tenure can only be non- existent if the elected President and Vice President are unable to take an oath of office before the commencement of the date of the next presidential tenure.
The Vice President can assume the tenure of an elected President if for any reason the elected President is incapacitated from assuming the office of the President.
Section 146 (1) of the Nigerian Constitution is explicit on how a Vice President can assume the office of the President. The Section states that: “The Vice President shall hold office of President if the office of President becomes vacant by reason of death or resignation, impeachment, permanent incapacity or the removal of the President from office for any other reasons in accordance with the Constitution”.
However, Section 146 (2) makes an exceptional provision in which the President of the Senate shall hold office of President for a period not more than three months if the office of the President and Vice President are vacant. Within this period of not more than three months a presidential election shall be conducted, the elected President will ONLY hold office for the unexpired term of office of the last holder of the office.
By the said Section 146 (2) of the Constitution, the challenge of the judgement of Justice Mudashiru Oniyangi in his effort to separate the presidential office holder from the tenure of the office is that there is no known provision of the Constitution that separates the presidential office holder from the tenure of the presidency. Efforts by Justice Oniyangi to separate the tenure of the late President Yar’Adua from President Jonathan is legally, politically and morally not convincing and tenable under the Constitution.
The difference between President Jonathan’s assumption of office at the demise of the late President Yar’Adua is that President Jonathan did not need to seek fresh election because he was elected as Vice President with the late President Yar’Adua in the 2007 Nigeria presidential election. Whereas in the case of 146 (2), an election of a new President will become imperative in the absence of a President or Vice President.
In each case, the holder of the office of the President is constitutionally permitted to complete the unexpired tenure. The Constitution did not provide for a gift of additional tenure to the office holder who was elected to complete the tenure of a President or who assumed office on the basis of a Vice President.
The National Assembly has a responsibility by way of Constitutional amendment which will define the one and half years spent in office by President Jonathan before his second oath of office in May 2011 as a tenure. The amendment can also define the tenure as gift granted to any Vice President whose “boss”, the President dies while in office, even if such President had just spent one month before his death or less than one month before his death or has not even been sworn-in as envisaged in Section 136 (1) of the Constitution.
If it should not be taken as presidential gift, then the path follows Supreme Court judgements that counted the number of the so call “illegal” years of annulled gubernatorial election in addition to the number of years for the governors to spend if they win a re-run gubernatorial election.
If the path of the re-run governors is chosen, it means the one and half years of President Jonathan’s first tenure should be subtracted from his second or third term of four years if he is elected as President in 2015.
Nigerians eagerly await the response of the National Assembly or the interpretation of the Supreme Court under which condition a democratically elected President of Nigeria can spend more than eight years in office.
Mr. ISAIAH OSIFO, a student of philosophy, wrote from Benin City, Edo State.