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I recently had a meeting with the European Union election observers here in Abuja and their Legal Analyst asked for clarification on some of the sections pertaining to the emergence of the President of Nigeria. Still pondering on his curiosity as to the clarity of those sections, I heard the former President of the Nigeria Bar Association, Olisa Agbakoba SAN, also raising genuine concerns about the correct interpretation of some sections of the Constitution associated with the emergence of a President of Nigeria. He even went further by officially demanding for clarification from the Independent National Electoral Commission (INEC). This has necessitated the emergency in stating the correct interpretation of some of those sections of the Constitution as a way to further enrich the INEC and Nigerians including the foreign observers as to the correct position of the law. I draw my authority to offer these interpretations first and foremost as a concerned citizen of this great country and most importantly, as a Minister in the temple of justice, being a Barrister and Solicitor of the Supreme Court of Nigeria. We must note that our interpretation cannot be said to be unassailable, it is intended to add to the fruitful discussion on the issue. Whoever has a better interpretation will be appreciated and welcomed and we are prepared to learn from such person and add to our own knowledge.
The process of electing the President of Nigeria is situated in Sections 132, 133 and 134 of the 1999 Constitution of Nigeria as amended. We must note preliminarily that an election to the office of President is held on a date appointed by the Independent National Electoral Commission in accordance with the Electoral Act and such date shall be held on a date not earlier than one hundred and fifty days and not later than thirty days before the expiration of the term of office of the last holder of that office. For the purpose of an election to the office of President, the whole of the Federation shall be regarded as one constituency.
Three possible different scenarios are stated in the process. Where there’s only one candidate, where there are two different candidates and where there are more than two different candidates. Where there is only one presidential candidate after the close of nomination, by reason of the disqualification, withdrawal, incapacitation, disappearance or death of the other candidates, the Independent National Electoral Commission shall extend the time for nomination. (See Section 132 of the 1999 Constitution as amended). However, where after the chances given to all the Political Parties to provide candidates, there still is available for consideration for the election only one candidate, then the candidate shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election he has a majority of YES votes over NO votes cast at the election; and 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 (See Section 133 of the 1999 Constitution as amended)
In an election to the office of President where there are two candidates, then a candidate shall be deemed to have been duly elected if he has the majority of votes cast at the election; and also 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. (See Section 134(1) of the Constitution as amended). Where there are more than two candidates for an election to the office of President, then a candidate shall be deemed to have been duly elected if he has the majority of votes cast at the election; and also 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. (See Section 134(2) of the Constitution as amended)
From henceforth in the process for an election to the office of President, things start getting a bit complex because if a candidate is not duly elected in accordance with the aforementioned Sections for the reason that no candidate achieved the highest number of votes and at the same time achieved the required spread of 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, then there shall be a second election within seven days of the result of the election held between the candidate who scored the highest number of votes at the election and one among the remaining candidates who has a majority of votes in the highest number of States. However, 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. (See Section 134(3) of the Constitution as amended). The candidate who has the majority of votes cast at the election; and also 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 shall be deemed to have been duly elected (See Section 134(4) of the Constitution as amended).
If no candidate emerged after the above second presidential election for the reason again that no candidate achieved the highest number of votes and at the same time achieved the required spread of 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, then there shall be a third election by INEC within seven days of the result of the election held between the two previous candidates and the candidate at such election who has the majority of the votes cast at the election shall be deemed to have been duly elected to the office of President. See Section 134(5) of the Constitution as amended).
A look at this process reveals the desire of the framers of our Constitution that the presidential result must reflect our federal character and recognise our diversity. From the requirement of achieving 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, before being deemed to have been duly elected, no candidate can win presidential election at the first and second rounds without winning in the North and South. No one ethnic or religious or linguistic group can win presidential election alone with their votes. This compels the politicians to build bridges across the country by ensuring the involvement, participation and integration of all sections and sectors of our country which in turn builds our unity and give everyone a sense of belonging.
The cardinal question then is what constitutes two-thirds of all the States of the Federation and the Federal Capital Territory. Again, what is the interpretation of the injunction “and” with regards to the Federal Capital Territory. Does it mean that in addition to having two-thirds of all the States of the Federation, a candidate must also win the FCT before being declared the President? As regards the second question, the answer is pretty straightforward. A candidate mustn’t win the FCT before being declared President. There’s no way it would have been the intention of the framers of the Constitution, who were looking for the presidential result to reflect our diversity and federal character, to turn back and put the entire destiny of the presidential election on what happens in the FCT. Secondly, the FCT is not a State in the sense of a federating unit of the Federation and it should remain so. The FCT is the capital of Nigeria that belongs to all Nigerians. It is the seat of power and is under the control of the Federal Government. Any interpretation that will make it mandatory to win the FCT before any Candidate will be declared the winner will simply impose on the ruling party the desire to use all its powers, which are enormous, since it’s in charge of all the security agencies and possesses the executive, legislative and judicial powers of the FCT, to frustrate the opposition parties from ever winning the FCT since it would have meant that the opposition has lost the election. Moreover, an acceptable precedent has already been established that a loss of the FCT does not mean a loss of the presidential election. Buhari lost the FCT in 2019 but won the presidential election and was duly declared the winner. No legal action was taken against him in that regards.
However, the question on whether calculating two-thirds of the States includes the FCT should also be pretty straightforward. Section 299 of the 1999 Constitution as amended is very clear 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 simply means that when calculating the two-thirds of the Federation for the purpose of the presidential election, the only interpretation that makes sense is that the FCT should be treated as a State. Any check in Sections 132-134 of the Constitution did not disclose that there are 36 States of the Federation. This signifies that the FCT must be included as a State in the Federation for the calculation of the two-thirds. That’s the only way the conjunction of “and” can make sense. The two-thirds of the Federation should stand at 24.7 States of the “36 + 1” States” in consideration. Going by the mathematical rule of approximation when a figure is higher than 5, it then means that for a candidate to be declared the President, the candidate must have the majority of votes cast at the election; and also has not less than one-quarter of the votes cast at the election in at least 25 of all the States in the Federation and the Federal Capital Territory, Abuja.
