28th February, 2023
(Edited 25th March, 2023)
~Sylvester Ikechukwu Onyema
In response to the matters arising from the ongoing 2023 General Elections, particularly the Presidential and National Assembly Elections, specifically as regards the requirement to have at least 25% of the votes cast in Abuja for the due election of a candidate to the office of the President, I have cause to look again at the provisions of SECTION 134(2)(B) of the CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS AMENDED 1999 (The Constitution).
Before I delve into the matter, throwing my opinion here and there as regards the interpretation of the provision, let me categorically state that I am not persuaded that this issue will arise in the 2023 Presidential Elections, as it would amount to capitulation in the face of the myriads of cogent issues and weightier matters that would take centre stage. Oh, it finally did!
Be that as it may, please come with me.
Take note that the Constitution made provisions for three (3) categories of contests to the presidency, namely:
- Sole candidature (Section 133 of the Constitution).
- Dual candidature (Section 134 (1) of the Constitution) &
- Multiple candidature (Section 134(2) of the Constitution).
A. SOLE CANDIDATURE
The requirement for due election to the office of the President in accordance with Section 133 of the Constitution is reproduced hereunder:
“A candidate for an election to the office President shall be deemed to have been duly elected to such office where being the only candidate nominated for the election;
(a) he has a majority of YES votes over NO 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.”
I will bring the provision, like I will do the other categories under two (2) subheadings/rules viz, the Majority Rule and the Spread Rule.
A1. THE MAJORITY RULE
For the purpose of this article, the majority rule will treat the first requirement as regards the the number of votes cast in the election. The majority rule under this category is straightforward. Although there will be only one person on the ballot, it does not amount to an automatic win, as he will be voted for and against by the electorates. The candidate only needs a simple majority of the votes cast. A simple majority of YES votes over the NO votes.
A2. THE SPREAD RULE
The spread rule is also straightforward. He must have at least 25% of the votes in two-thirds of all the states of the Federation “and” Abuja.
Note that since the relevant provision for interpretation is in this article; S. 134(2)(b) of the CFRN is pari pasu with this spread rule, I’d postpone the interpretation pending when we get there.
But the important thing is that such a candidate will not be deemed elected if he fails to meet this threshold, whatever that threshold is.
This is without prejudice to the possibility of a fresh nomination for a rerun election as provided in the proviso to the Section.
B. DUAL CANDIDATURE
The provision of dual candidature is in Section 134(1) of the Constitution and reproduced hereunder;
“A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidate 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.”
B1. THE MAJORITY RULE
In this case, the candidate that would be elected just needs a simple majority of the votes cast.
B2. SPREAD RULE
On the surface, this should be an easy calculation since the number of states in the Federation, thirty six (36) is a multiple of three (3). On this mathematical scale, the two-thirds of thirty six (36) states should be twenty four (24) states. Simple.
Oh, there’s more. There’s an additional entity in that requirement that has not been dealt with, namely; the Federal Capital Territory, Abuja and that is the crux of the debate.
One wonders whether what is required in Abuja is the 25% of the votes cast or 25% of the six (6) Area Councils.
Interestingly, I opine that none of the above is a requirement. It is important to track the mind of the draftsman and the intention of the Legislature in order to appropriately give context to the provision. We must understand the role of the conjunction (AND) between the phrases “…all the states of the Federation (AND) the Federal Capital Territory, Abuja”. Does the legislature intend it to be interpreted conjuctively or disjunctively?
The Supreme Court in the case of Olofu v. Itodo (2010) 18 NWLR (Pt. 1225) 545 at 585 paras.F – G held thus:
“I must remark here that in the interpretation of any statute or instrument, the object is to ascertain the intention of the legislature that had drawn it.
In Dipialong v Dariye (2007) 8 NWLR (Pt. 1036) 332 the Supreme Court held that
“where words or expressions in the provisions of a statute have been legally or judicially defined or will lead to absurdity, their ordinary meanings will definitely give way to their legally or judicially defined meanings or that other meaning that would not lead to absurdity .”
Also in Nothman v. London Borough County of Barnet, Lord Denning vehemently argued that judges must be purposeful in interpretation and refuse to be bound by ordinary and grammatical meanings that will lead to absurdity.
Therefore, to give effect to Section 132 (2)(4) of the Constitution which made the whole Federation one constituency for the purposes of the election of the President, it is doubtless that Abuja cannot stand aloof. The Federal Capital Territory cannot assume an electoral status beyond and above states of the Federation, it being in the same electoral constituency with the rest in accordance with the above provision.
C. MULTIPLE CANDIDATURE
The provisions for the multiple candidature as stipulated in Section 134 (2)(B) of the Constitution are reproduced hereunder;
“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 in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja”.
Substantially, there’s no difference between the dual candidature and the multiple candidature within the area of the interest of this article for interpretation. Therefore the majority rule and the spread rule are the same.
D. THE ANALYSIS
I have painstakingly read through the provisions of Section 299 of the Constitution* that bestows on Abuja, the status of a state of the Federation. In fact, I studied through to Section 304 and the provisions are not absolute but are clearly attempts to ELEVATE the FCT to the status of a state in certain matters of administration. It was not intended to tower above the states.
Furthermore and more importantly, Section 132(4) expressly stated that the whole of the Federation shall be regarded as one constituency for the purposes of the election of the president. The import is that no zone, region, state, local government area or any unit by whatever name called, can assume a special status above any other. This provision is most relevant in this matter compared to Section 299 and the retinue of decided cases that we are citing. To bring the controversial AND to effect in view of the one constituency rule, Abuja, a seemingly “minor” granted with the age of majority by law, for the purposes of achieving certain administrative and electoral purposes, cannot suddenly become “the eldest brother” and assume a status or position above his elder brothers (the states) in those certain purposes.
Winning in Abuja or securing 25% of its vote is not and can never be a condition to win the presidency, otherwise the import would be that Abuja is not in the same constituency with the states, and towers over the states in the presidential electoral matters. This is an anomaly and cannot be the intention of the legislation. Furthermore, it is a violation of the one constituency rule of Section 132(4) of the Constitution.
I am therefore not persuaded by the learned silk’s argument and thus retain my position that in accordance with Section 134(2)(b), the AND cannot be interpreted conjunctively, therefore 25% in any 25 states adequately meets the spread rule to become a duly elected Nigerian president.
E. CONCLUSION
I therefore conclude by re-asserting the opinion that Abuja, being in the same constituency with the rest of the country for the purposes of the Presidential election cannot assume the status of a sole determinant to the ascendancy of the office. Therefore a candidate who has the majority of the votes cast in the general election and 25% of the valid vote cast in more than 24 states of the Federation shall be deemed duly elected.
For the avoidance of doubt, the least digit that represents “more than twenty four (24) states” is twenty five (25) states. So any 25 states of the Federation meet the requirement.
The true intention of that provision is to cloth Abuja with the status of a state for the presidential election purposes and forestall the mischief of vitiating the validity of the election of a candidate who secured 25% of votes in only twenty four (24) states of the Federation and Abuja, by arguing that Abuja is not a state.
So in fact, Abuja is the otherwise, unqualified entity that was clothed with qualification through the contemplation of the provision of that law. It is therefore laughable therefore to imagine that it now assumes a greater status that states of the Federation for the purposes of the presidential election purposes.
Nonetheless, this opinion is not intended to preempt the apex court of the land and therefore remains amenable to the decision of a full court of the Supreme Court if and when the matter of the interpretation of the relevant provision comes before it.
Sylvester
LLM (London).