A couple of issues and controversies are currently trajectory as a result of the general conducts of the presidential election in Nigeria, which was conducted on the 25th of February 2023. Some of the issues range from alleged disenfranchisement of some of the eligible voters, to cases of over-voting and violence in some of the polling units of some States of the Federation. There is also the issue of the technical failure of the technology deployed by the Independent National Electoral Commission of Nigeria, which we are also going to look into subsequently; as part of our independent observations during and after the conclusion of the election.
The subject matter of this discourse is a constitutional issue stemming from the provisions of the Constitution of the Federal Republic of Nigeria 1999; particularly Section 134 which provides as follows:
A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election:
(a) he has the majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
(a) he has the highest number of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
Nigeria as a federation, is made up of thirty six (36) States and the Federal Capital Territory; Abuja. What has now become a big bone of contention for the ordinary citizens of Nigeria after the Presidential election of 25th of February 2023, is whether or not a presidential candidate must not only have the majority of votes collated in the election but also have one-quarter (25 percent) of the votes cast in each of at least two-thirds of all the States and the Federal Capital Territory, Abuja, by virtue of Section 134(2)(b) of the CFRN 1999.
During the collation of the results of the different political parties and candidates in the presidential election, the Labour Party was announced to have won the Federal Capital Territory, Abuja. The Labour Party's win in the Federal Capital Territory; Abuja, was quite landslide, that it deprived the other parties from even having up to 25 percent of the total votes casted in the FCT. Unfortunately, we already have parties like the All Progressives Congress (APC) and the Peoples Democracy Party (PDP) leading the elections with high and majority of the numbers of votes without being able to clinch a 25 percent of the votes in the Federal Capital Territory, Abuja. In fact, the candidate for the All Progressives Congress (APC) has already clinched 25 percent of votes each, in two-third States of the Federation and even has the majority of votes.
The question in the mind of many is whether by the import of Section 134(2)(b) CFRN 1999, a party or candidate that fails to clinch 25 percent in the Federal Capital Territory; Abuja, can be declared a winner of the presidential election. The confusion arises from the construction of the said Section 134(2)(b) to mean; a party must score 25 percent of valid votes in at least 24 States (two-third) of the federation out of the 36 States AND the Federal Capital Territory.
By the provision of the Law, the implication of the failure of any of the presidential candidates to meet the conditions stipulated in Section 134(2)(b) implies that the Independent National Electoral Commission has to conduct a run-off election. This is stipulated in Section 134(3) CFRN 1999 as follows:
(3) In a default of a candidate duly elected in accordance with subsection (2) of this section their shall be a second election in accordance with subsection (4) of this section at which the only candidate shall be -
(a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and
(b) one among the remaining candidates who has a majority of votes in the highest number of States, so however that where there are more than one candidate with majority of votes in the highest number of States, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.
Flowing from the above, many individuals and bodies have now formed the opinion that there is the possibility of a run-off election. However, we hold the opinion that the correct construction of the said Section 134(2)(b) CFRN 1999 only includes the Federal Capital Territory as a 37th State from where the 25 percent scoring threshold can be met. Put more succinctly, regardless of the fact that the Federal Capital Territory, Abuja, is separate from the 36 States, a party or candidate can still meet the threshold if he can score 25 percent in the Federal Capital Territory with any other States.
It cannot be the intention of the drafters of the Constitution to make a 25 percent scoring threshold for the Federal Capital Territory a necessity or condition precedent to formally win the presidential election in Nigeria. In this regards, we posit that all that is necessary is for a party or candidate to get a majority vote and at least 25 percent of two-third (25 States) of the States in Nigeria; with or without winning or clinching a 25 percent separately in the Federal Capital Territory, Abuja.
Any contention or assumption supporting a necessary 25 percent scoring threshold for the Federal Capital Territory in our opinion may not only be baseless but unconstitutional. It strikes more as a move to vest a weightier or special voting capacity on the Nigerian citizens in the Federal Capital Territory, Abuja, different from the rest citizens in other States.
Nigeria is a democratic country and the spirit of the same Constitution of Nigeria makes all citizens of Nigeria equal despite the region, State or tribe. Significantly, the Preamble of the CFRN 1999 provides for “We the people of the Federal Republic of Nigeria…” and not “We the people of the States of the Federal Republic of Nigeria and the people of the Federal Capital Territory”.
We further posit that the sole reason for having the 25 percent scoring threshold alongside majority votes as conditions to win the presidential elections in Nigeria is to have a president that is accepted across majority of the States of the federation. Put more succinctly, each of the States in Nigeria has varying populations with some States having very high population compared to others. Without the 25 percent threshold in one-third of each State, we may have Presidents coming into power by just winning few highly populated States or a region of the Country.
It is very important that we also point out that the Constitution of Nigeria itself puts every possible confusion on this matter to rest by providing in Section 299 that: The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation. This was also reiterated in the 2005 Nigerian case of Okoyode v FCDA, with the court vehemently holding that, in Law the Federal Capital Territory, Abuja, is a State. Aside the fact that the Federal Capital Territory of Nigeria is governed differently from other States; nothing however bestows upon it a status as a special State and the citizens of Nigeria residing there as special citizens.
One of the reasons we are having this question springing up at this time is because of the competitive nature of the 2023 Presidential Election in Nigeria with so many people driving and supporting the candidate and party that won the election in the Federal Capital Territory, Abuja.
We believe and hope that the diverging views and opinions on this mathematical issue does not deter the Independent National Electoral Commission from declaring a winner of the election since we already have a party with majority vote while also meeting the condition of scoring 25 percent votes in about (two-third) 25 States of the Federation.
After the declaration, any of the parties and candidates that feel dissatisfied with the general conduct of the elections can then proceed to the court for any available remedy.
In the end, we must understand that no legal draftsman can envisage all the possible issues that may arise in the interpretation of drafted laws. However, this is the reason why we have the courts. It is important that we avert our minds to Oliver Wendell Holmes’ theory which posits that the law is not a set of timeless and immutable rules, but rather a constantly evolving product of social, economic and political forces.
According to Holmes: The Law is the Prophecy of the Court and he believed and we agree that the role of the courts is to interpret the law in light of these changing circumstances and use their decisions to guide future legal developments. It is in this instance that we are submitting that despite our opinion and other opinions or arguments flying around in relation to this matter, it is only the court that can put this to rest by clearly interpreting the position of Section 134(2)(b) CFRN 1999 and when it does this judiciously, whatever is interpreted becomes law until tables probably turn again.