Differing from Robert Clarke’s Call For Tenure Extension By Wole Olanipekun
My attention has been drawn to an opinion making the rounds, which has been credited to no less a person than the highly respected Senior Advocate of Nigeria (SAN) and an elder statesman, Chief Robert Clarke. The learned Senior Advocate has been reported as suggesting that as a result of the perennial insecurity enveloping and plaguing Nigeria, President Muhammadu Buhari (PMB) should extend his tenure for an additional six-month period, as, according to the statement ascribed to him when he featured on the Arise Television programme of May 9:
“The Constitution provides that the president can stay longer than eight years. I’ve always said it. It is in the Constitution. If the situation in which we’re in now continues, and it is impossible to vote in the 2023 election, the Constitution says if a situation persists, the president will inform the INEC in view of all insurgencies, in view of kidnappings, in view of Boko Haram, I don’t think in these different areas of Nigeria, we can have a good election…”
“I am 84 years old, and I can assure you I’ve had the best time in my life, both in my legal practice, in my social life, in every aspect of life, but I can assure you, that those days are gone by. Since 1999, I have not been a happy man, the way and manner Nigeria has been moved.”
“For instance, look at our first president, Obasanjo, with due respect. What was the first negative act he did? I want a third term. Can you imagine? But he says, oh, it’s not me who wants it, is my friend who is asking me to go for a third term.”
Let me state straightaway that I have high regards for Chief Robert Clarke (SAN), with who I have enjoyed a very robust and mutually respectful relationship over the years. I also share his views and sentiments on the failings of Nigeria since the emergence of this democratic dispensation in 1999. Furthermore, I am on all fours with him regarding what he terms ‘the negative act’ of President Obasanjo by attempting to impose a third term tenure on Nigeria and Nigerians, an attempt which woefully failed. Having said that, I am afraid I cannot agree with the postulations and prognosis of my learned friend of the Inner Bar, as these, with much respect to him, are not constitutional, legal, legitimate, moral, democratic, acceptable, reasonable, or in the best interest of Nigeria and Nigerians.
While it is glaring that Nigeria is bedevilled by a mountain of daunting challenges, including insecurity, economic downturn, political instability, hunger, poverty, near-collapse of education and educational institutions, injustice, the lack of sustainable institutions, religious bigotry, inhumanity of man to man, corruption, et al, these cannot be any justification for a call for President Muhammadu Buhari (PMB) or any president, howsoever, to extend his tenure outside the constitutionally provided maximum period of eight years, as prescribed by the combined provisions of sections 135(2) and 137(1)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). With further respect, the suggestion is a direct call to the breach of the Constitution, as well as its spirit, tenor and letter. There is no gainsaying the fact that the end result of such a proposition would further compound the conundrum that we have steeped into and, plunge us into a latent state of anomie.
Skimming through the entire provisions of the Constitution, it appears that Chief Robert Clarke (SAN) had section 135(3) of the Constitution in mind, in arriving at his theory. The said provision is reproduced as follows:
“If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time; but no such extension shall exceed a period of six months at any one time.”
This section is mutatis mutandis with section 64(2) of the same Constitution in relation to the National Assembly. The phrase “if the Federation is at war…” connotes a state of external aggression under Humanitarian Law, a global example of which is the present confrontation and aggression going on between Russia and Ukraine. Besides, it has become the norm, a negative, ill-informed and misleading one at that, that we equate Nigeria as a sovereign state, as well as her over 200 million citizens, with whoever the president of Nigeria is at any given time; and we benchmark – erroneously and painfully, for that matter – his security with that of the larger whole. If, for example, as rightly surmised by Chief Robert Clarke, Obasanjo did a ‘negative act’ by seeking a third term in office, wanting to goad the National Assembly into rubber stamping his unconstitutional bid, why then is the High Chief prompting PMB to follow the same illegal and undemocratic route? To my mind, this is a suggestion akin to advising PMB to embark on a third term bid or adventure like OBJ, who Chief Robert Clarke pointed out as having done a ‘negative act.’
The celebrated case of Marwa V. Nyako (2012) 6 NWLR (Pt. 1296) 199 resolves all issues and doubts relating and pertaining to the certainty and sanctity of the eight-year maximum period permitted by the Constitution for a chief executive, either of a State or the Federation. The matter does not stop there, or put on the flip side, it is not as simple as Chief Robert Clarke (SAN) thinks, as he has only zeroed everything to the president. Apart from Anambra, Bayelsa, Edo, Ekiti, Kogi, and Ondo States, where governorship elections were/are not conducted at the same time with the presidential/general elections, what happens to the chief executives of the remaining 30 States, who have their tenures terminating or lapsing on May 29, 2023? Is it also being suggested that their respective tenures be extended because their States are at war? What of the National Assembly and State Houses of Assembly? Does the largesse also extend to them? Some pertinent corresponding hypothetical questions also arise from this constitutional theorem, id est, what happens after the first six months, if the insecurity which has been plaguing Nigeria since the time of President Goodluck Jonathan still persists? Does PMB give himself another six months and continues in that manner ad infinitum? More curious questions arise from this very novel ideation.
The point must be made, and the truism rehashed, that in any country or institution, company or organisation, or even within the micro family level, no one, whether the president, the governor, the chief executive officer or managing director of a company, or even head of family, can ever boast of completing his job or assignment before handing over to a successor. This is also latent in every democracy in the world. The presidential or governorship position is not monarchical, meaning that it is not of a life-time tenure. It is also not personal to anybody. Presidents/governors come, and presidents/governors must go. After the case of the biblical Joshua, no man born of a woman has again ordered the sun to ‘stand still’ and the moon to restrict itself to ‘a valley’, until he completed/completes his assignment. In like manner, the Gregorian calendar consists of 12 months, 52 weeks and 365/366 days in a year; no one will dare suggest that because of the demands of a particular assignment or peculiarity of a transient situation, the seven days stretch for a week, four weeks span for a month, and 12 months structure for a year be extended, because of the desire for more time.
It is quite disturbing, unfortunate, uncheering, and very worrisome that since 1999, Nigeria has been migrating from one problem to another, oscillating from one crisis to another; graduating from one degree of catastrophe to another; as a result of which the landscape has become a practicing pitch for all sorts of theories, ideologies, ideas, suggestions, prognosis and hypothesis, the last of which has just come from the respected Chief Robert Clarke (SAN). As stated earlier, this suggestion, if considered at all, how much being implemented, would no doubt aggravate our already compounded woes and terminate the survival of the present democratic adventure. It is apt to caution, applying the old adage: ‘ye deity, if you cannot improve or salvage my situation, leave me as you have met me.’
To PMB, my honest, friendly, professional and civic advice is that he should treat this advice or any invitation to him to extend his tenure by a millisecond beyond May 29, 2023, with a pinch of salt. It is in our collective interest if this proposition is nipped in the bud. In parenthesis, the president does not have the power to extend his tenure; no president has that power or vires to so do. The tenure was given to him by Nigerians and, as at the time of donating that tenure to him, the covenant between the donors and the donee was that in the first instance, it was for a term certain of four years; and upon renewal in 2019, it was for an extended term certain of four years; no more, no less!
Wole Olanipekun is a Senior Advocate of Nigeria (SAN) and Chairman, Body of Benchers.