One of the most enduring principles of constitutional and statutory interpretation is that laws generally operate prospectively rather than retrospectively. In simple terms, the law looks forward, not backward. This principle has become particularly relevant in debates surrounding the constitutional tenure limits applicable to Presidents and Governors who assume office to complete the unexpired terms of their predecessors.
The controversy has generated significant legal and political discussion, especially regarding whether the constitutional amendments introduced in 2018 can be applied to persons who served under similar circumstances before the amendments came into force. The debate has featured prominently in discussions concerning former President Goodluck Jonathan and has prompted a re-examination of the doctrine of non-retroactivity in Nigerian jurisprudence.
In 2017, the National Assembly altered Sections 137 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and the amendments subsequently received presidential assent in 2018.
A new subsection, Section 137(3), was inserted into the Constitution. It provides that a person who is sworn in as President to complete the term for which another person was elected President shall not thereafter be elected to that office for more than one additional term.
Similarly, Section 182(3) was introduced to provide that a person who is sworn in as Governor to complete the term for which another person was elected Governor shall not thereafter be elected to that office for more than one additional term.
The practical effect of these provisions is that a Vice President or Deputy Governor who succeeds to the office of President or Governor, respectively, to complete an unexpired tenure is limited to one subsequent elected term in that office. The constitutional amendment was widely viewed as an attempt to provide clarity on succession and tenure calculation, particularly in situations where an elected office holder dies, resigns, becomes incapacitated, or is otherwise unable to complete a constitutional term.
This amendment immediately raised an important legal question: Does it apply to individuals who assumed office under similar circumstances before the amendment came into force?
The question became particularly significant in relation to former President Goodluck Jonathan, who assumed the office of President on 6 May 2010 following the death of President Umaru Musa Yar’Adua and subsequently won the 2011 presidential election. Those opposed to Jonathan’s eligibility for another presidential contest argue that he effectively served a portion of one term and a full subsequent term, thereby exhausting the constitutional tenure limit intended by the amendment.
On the other hand, supporters of Jonathan’s eligibility contend that the constitutional alteration cannot be applied retrospectively because it was not part of the Constitution at the time he served as President. According to this view, rights and legal positions that crystallized before the amendment cannot be affected by legislation enacted years later. This disagreement brings into focus one of the most fundamental doctrines in constitutional law: the presumption against retrospectivity.
A retroactive or retrospective law is one that seeks to regulate, alter, or affect rights, obligations, actions, or events that occurred before the law came into force. The general principle of law is that legislation is presumed to operate prospectively unless the legislature clearly and expressly provides otherwise.
This principle is encapsulated in the Latin maxim lex prospicit non respicit—the law looks forward and not backward. The rationale behind the doctrine is rooted in fairness, legal certainty, and the rule of law. Citizens should be able to regulate their conduct based on the law as it exists at the time of their actions. Subjecting individuals to legal consequences arising from laws enacted after the relevant events occurred would undermine legal predictability and public confidence in the justice system.
For example, where a law enacted in 2025 criminalizes a particular act, a person who engaged in that conduct in 2023 cannot ordinarily be prosecuted under the later law. The same principle generally applies to constitutional qualifications, civil rights, obligations, and accrued legal interests.
Nigerian courts have consistently affirmed the principle that statutes and constitutional provisions should not be construed retrospectively unless the intention of the legislature is expressly stated in clear and unambiguous language.
In Adalumo Agbeti v. The State (SC/CR/1463/2022), the Supreme Court reaffirmed the principle that a law cannot have retroactive effect merely because such application may appear desirable or popular. The Court emphasized that legislation takes effect from the date of its enactment unless the legislature expressly provides otherwise.
Similarly, in Alhaji Yau Isa Mai Alewa v. Sokoto State Independent Electoral Commission (CA/K/63/03), the Court of Appeal considered whether a statutory disqualification introduced by the Local Government Law of Sokoto State, 2000 could be applied to elections conducted before the enactment of the law.
The appellant had previously been elected Chairman of Goronyo Local Government Council before the law came into force. When he sought to contest again, it was argued that he had already exhausted the permissible number of terms.
Allowing the appeal, the Court of Appeal held that the law could only be applied prospectively. Delivering the lead judgment, Kekere-Ekun, J.C.A. (as she then was), held that the statute could not be interpreted to disqualify a person based on elections conducted before the law became effective. The Court stressed that, in the absence of express language to the contrary, legislation must be construed prospectively. The same position received support from Ariwoola, J.C.A. (as he then was), who concurred with the judgment.
The courts have adopted a similar approach in several other cases. In Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734, the court reiterated the presumption against retrospective legislation. Likewise, in Attorney-General, Plateau State v. Goyol (2007) 16 NWLR (Pt. 1059) 57, the court emphasized that accrued rights generally survive the repeal or amendment of legislation unless a contrary intention is expressly stated.
In Attorney-General of the Federation v. ANPP & Ors. (SC.142/2003), the Supreme Court was confronted with arguments relating to constitutional tenure limitations. The Court held that the relevant constitutional provision should be interpreted prospectively and not retrospectively.
Collectively, these authorities establish a consistent judicial approach: legislation affecting rights, qualifications, or disqualifications is presumed to apply only from the date it comes into force unless the legislature expressly directs otherwise.
Despite the weight of authority supporting prospective application, an alternative argument deserves consideration. Some commentators contend that the constitutional amendment was introduced specifically to address a perceived gap in the constitutional framework exposed by the circumstances surrounding President Jonathan’s succession to office. Applying the mischief rule of interpretation, proponents of this view argue that courts should consider the defect the legislature intended to remedy and interpret the amendment in a manner that advances that objective.
According to this argument, the amendment merely clarified what was always intended by the constitutional tenure provisions and should therefore inform the interpretation of earlier constitutional arrangements.
While this position has generated considerable academic discussion, it has encountered significant judicial obstacles. Nigerian courts have consistently maintained that legislative purpose, however compelling, cannot override the presumption against retrospectivity in the absence of clear and express language authorizing retrospective operation. Consequently, the mischief rule cannot ordinarily be invoked to deprive a person of rights or qualifications that had already accrued before the amendment came into force.
Another important consideration is the doctrine of vested rights. A vested right is a legal right that has accrued to an individual and is protected from subsequent legislative interference unless the legislature expressly provides otherwise. Courts generally presume that the legislature does not intend to interfere with vested rights beyond what is clearly stated in the enactment. Where ambiguity exists, the interpretation that preserves individual rights and legal certainty is preferred.
This principle is especially important in constitutional matters because constitutional provisions often determine eligibility for public office, political participation, and other fundamental rights.
Accordingly, where a constitutional amendment introduces a new disqualification or restriction, courts are typically reluctant to apply it to circumstances that existed before the amendment took effect unless the constitutional text expressly mandates such application.
Recent litigation challenging the eligibility of former President Goodluck Jonathan has once again brought these principles into public focus.
The central argument advanced by those seeking his disqualification was that his succession to the presidency in 2010, coupled with his subsequent electoral victory in 2011, amounted to the constitutional equivalent of two presidential tenures. However, courts that have considered the issue have generally approached it through the lens of the presumption against retrospectivity. The recurring judicial theme has been that constitutional amendments enacted after Jonathan’s tenure cannot ordinarily be applied to events that occurred before the amendments became part of the Constitution. The legal significance of these decisions lies not merely in their effect on a particular individual but in their affirmation of a broader constitutional principle: laws should provide certainty and predictability, not alter legal consequences after the fact.
In conclusion, the constitutional amendments introducing Sections 137(3) and 182(3) have undoubtedly clarified the tenure implications for Vice Presidents and Deputy Governors who succeed to complete unexpired terms. Under the current constitutional framework, such office holders are limited to one subsequent elected term.
The more difficult question has been whether those provisions can be applied to persons who assumed office before the amendments came into force. The prevailing judicial position remains that they cannot. Nigerian courts have consistently held that laws and constitutional provisions are presumed to operate prospectively unless the legislature expressly provides for retrospective application.
This principle protects vested rights, promotes legal certainty, and strengthens the rule of law.
While legitimate academic debate may continue regarding the purpose and policy considerations behind the constitutional alteration, the weight of judicial authority presently supports the conclusion that the tenure restrictions introduced by the 2018 constitutional amendment apply from the date of their commencement and not to events that occurred before then.
Ultimately, the debate serves as a reminder that constitutional interpretation must be guided not only by political considerations or public sentiment but also by enduring legal principles that preserve fairness, certainty, and the integrity of the legal system.
– ONOGWU Muhammed, Esq.
Abuja
