I submit that the Federal Republic of Nigeria is a State based on the principles of democracy and social justice: See Section 14(1) of the 1999 Nigerian Constitution. The Nigerian democracy is a political party democracy based on the provisions of the Nigerian Constitution. Thus, in Nigeria’s demo-cracy, it is the political party that contests elections and not the candidates: See Section 221 of the Constitution:

“No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of ay political party or to the election expenses of any candidate at an election.”

The Supreme Court of Nigeria made the position abundantly clear in Amaechi v. INEC (2008) 10 WRN 1 at 177 lines 20-45 where Oguntade, JSC said:

“The above provision effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political  parties. Without a political party a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. I think that the failure of respondents’ counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the Constitution, it is his party that has won the election”.

If, as interpreted by the Supreme Court, in Amaechi v. INEC supra,  it is the Political Party that contests election, and not the candidates, then, the right to determine where and how its candidates should emerge, resides in the political party within the confines of the party’s constitution as recognized by the country’s constitution.

The constitutional right which any Nigerian has, to contest election to any Public Office in Nigeria, is conditional upon membership of a political party: See Section 131 of the 1999 Constitution:
A person shall be qualified for election to the office of President if:-
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of forty years:
(c) he is a member of a political party and is sponsored by the political party; and
(d) he has been educated up to at least School Certificate Level or its equivalent.

With respect to President Goodluck Jonathan, on the issue of his eligibility and constitutional right to contest the Presidential Election of 2011 on the platform of the Peoples Democratic Party, I submit that as long as President Goodluck Jonathan remains a member of PDP and desires to contest the presidential election on its platform, His Excellency would have to first abide by the provisions of PDP Constitution, including the one on zoning and rotation, which the Nigerian Constitution recognizes.

The constitutional right to contest election theory, which some Nigerians have canvassed on behalf of President Goodluck Jonathan, is dependent on his membership and sponsorship by his political party, the PDP subject to the provisions of the constitution of the PDP and his compliance therewith.

More seriously, I submit that the interest or desire of Mr. President to contest the 2011 Presidential Election on the platform of PDP has a cumbersome political cum constitutional hurdle to contend with.

This is because, the current presidency which Dr. Goodluck Jonathan enjoys is a Northern (Alhaiji Umaru Yar’Adua) Presidency vide Sections 142 (1) and 146 (1) of the 1999 Constitution, by reason of the fact that Dr. Goodluck Jonathan was, ab initio, only a Vice-President in a Northern Nigerian Presidency.

Section 142 (1) of the 1999 Constitution provides:,
“In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President  in accordance with the provisions aforesaid..

Section 146 (1) of the 1999 Constitution provides:
The Vice-President shall hold the 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 reason in accordance with section 143 or 144 of this Constitution.

I submit that by a conjunctive reading and construction of Article 7(2)(c) of the PDP  Constitution of 2009 and Sections 14(3) 15(4), 131, 142(1), 146(1), 221, 222(c) and (d), 223(b), 224, of the Constitution of the Federal Republic of Nigeria 1999, the choice of PDP Presidential Candidate for the 2011 Presidential Election ought to be as it was in 2007.

The Presidency of Dr. Goodluck Jonathan, by virtue of Sections 142 (1) and 146(1) of the 1999 Constitution; is a Donee, Delegate or Agent Presidency. The Donor or Principal Presidency resides in late President Umaru Musa Yar’Adua or his primary political consitutency. At the end of the current term i.e. 2007 to 2011, the Presidency reverts to its origin or source. This is because, it is common place and a foregone conclusion, that had late President Umaru Musa Yar’Adua been alive, he would have sought and obtained nomination for a second term to the office of Presidency of Nigeria on the platform of PDP. The legal maxim is Principalis debet semper excuti antequam perveniatur ad fideijussores  meaning The principal should always be exhausted before coming upon the sureties.

To all intents and purposes, legally and politically, Dr. Goodluck Jonathan holds the Presidency for now in trust for and on behalf of the North, as then represented by late Alhaji Umaru Musa Yar’ Adua. An Agent or Trustee does not by the sheer fact and circumstances of his Agency or Trust become the Principal. Otherwise, he would become a trustee de son tort with its attendant liabilities.

The Oath of Office for President, contained in the Seventh Schedule to the Constitution of the Federal Republic of Nigeria 1999 which President Goodluck Jonathan subscribed to on assumption of office includes:

“That I will strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decision”

The Federal Character (or Zoning) Provision in Section 14(3) of the Constitution is one of the said Fundamental Objectives and Directive Principles of State Policy which His Excellency Mr. President swore he would “strive to preserve”.

Politically speaking, we are herein faced with late Chief MKO Abiola situation which has become an authoritative political precedent or locus classicus in the political history of Nigeria. The Presidency of Nigeria was zoned to the southwest in 1999 as a result of the annulment of the June 12, 1992 Presidential Election won by Late Chief MKO Abiola over which he died. That, by concession and consensus, produced Chief Olusegun Obasanjo, another South-westerner as late Chief MKO Abiola, as President of Nigeria in 1999.

Late Alhaji Umaru Musa Yar’ Adua won the 2007 Presidential Election and he also died. Without much ado, in line with Section 15(4) of the 1999 Constitution, a North-westerner, as late Alhaji Umaru Musa Yar’ Adua, ought, also by concession and concensus, become the next Nigerian President. Otherwise, the North would suffer double jeopardy  by becoming a victim of its own bereavement. The North has lost a President. They ought not also to lose the Presidency. At least, not in 2011. I rest my case.

Austin Osarenkhoe is a Benin-based legal practitioner