INTRODUCTION
In the last episode of this discourse, we continued with the topic: ‘When the deux ex machina was suppressed in Machina’s case,’ after which we looked at the 25% of FCT, Abuja, as a legal conundrum in the 2023 Nigerian presidential election. Today, we shall continue and conclude same. Later on we shall x-ray the Tandem Ticket Dilemma: When a Deputy’s Disqualification unjustly unseats a Governor. Read on.
The 25% of FCT, Abuja as a legal conundrum
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In Awolowo V. Shagari & 2 Ors (1979) FNLR, Vol. 2 , the Apex Court considered Section 34A(1)(c)(ii) of the Electoral Decree, which is impari material, except that it did not add “And the FCT, Abuja.” It held:
“A candidate for an election to the office of President shall be deemed to have been duly elected to such office where-
(c) There being more than two candidates
i. He has the highest number of votes cast at the election; and
ii. 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.”
The difference between this Decree and Section 134 of the Constitution being considered is the addition of “and the Federal Capital Territory, Abuja,’’ under our extant 1999 Constitution.
In Awolowo’s case, Hon. Justice Fatayi-Williams, CJN, held that Section 34(1)(c)(ii) of the Decree was a clumsily worded section, which was nevertheless devoid of any semantic ambiguity. In that same case, Obaseki, J.S.C., construed the meanings of the word “each” and the words “States in the Federation”. He held that the word “each” in subsection (1)(C)(ii) of section 34A qualified “a whole State”; and that the words “States in the Federation referred to the land area and not votes. By way of extrapolation, the “land area” of the FCT must be distinguished from the land area of each of the 24 States of the Federation.
The primary canon of interpretation of the Constitution is the “literal rule” as held by the Apex court in A.G, Abia State V. A.G Federation ((2022)16 NWLR (PT. 1856) 205). Accordingly, where words are clear and unambiguous, the court must so interpret them without any further ado; or going outside them. In Kassim V. Sadiku (2021) 18 NWLR (pt. 1807, 123), the Supreme Court had held that: “where a statute of the Constitution or a subsidiary legislation…prescribes a procedure for seeking remedy or the doing if anything or act, and the language used is clear and unambiguous, that is the only procedure open to the parties concerned, and any departure therefrom will be an exercise in futility. This was also reiterated in Inakoju V. Adeleke (2007) 4 NWLR (PT. 1025).
Araka V. Egbue (2003) 17 NWLR (PT. 848, 1), further elaborated that a court is not to go on a voyage of discovery when words are clear in Statute. It is thus trite law that where a provision of a statute is clear and unambiguous, only its natural meaning, and not any other, is to be given to its interpretation. It is only where the literal interpretation of a section is impossible without doing violence to the law that the court should start engaging other rules of interpretation, which does not apply in this situation. The “Mischief Rule” is only employed where the old law did not provide for a matter and an interpretation is to cure or remedy that mischief as established in Ugwu V. Ararume ((2007) 12 NWLR (PT. 1048) 365).The word “AND” and “EACH” have enjoyed judicial pronouncements with great erudition. In Buhari V. INEC ((2008) 19 NWLR (PT.1120) 246), the Supreme Court held, per Tobi JSC,: “The final word I should examine briefly is the conjunction “and” joining the larger part of the Subsection with the smaller part of “that the non-compliance did not affect substantially the result of the election.” The word “and”, being a conjunction, performing the function of joining two expressions or sentences which could be inseparable, integrated, joint or matched…” On the word, “EACH”, on the other hand, the Supreme Court in Eyisi & Ors V. State (2000) LPELR-1186(SC), held: “each” means being one of two or more distinct individuals; each one. See Black’s Law Dictionary (sixth Edition) where “each” is defined as “a distributive adjective pronoun, which denotes or refers to every one of the persons or things mentioned.”
Thus, section 134(2)(b) of the Constitution after generally stating all the States of the Federation where the 25% requirement is a sine qua non for a presidential candidate to be deemed duly elected, rather than exclude the FCT, Abuja, as one of the States of the Federation where the 25% is a requirement for a presidential candidate, went further to specifically use the word “and”, to include the FCT as one of the States of the Federation where the 25% constitutional requirement is a sine qua non. It is settled law that the use of the word “and” is conjunctive in interpretation of Statutes. The implication of this my humble opinion which the apex court disagreed with is that after meeting the 25% requirements in 2/3 of the States of the Federation, the candidate must go further to meet the said 25% requirement in the FCT, Abuja, before he can be deemed duly elected.
The framers of the Constitution intended for Nigeria to have a widely-accepted President with national support, not one restricted to a tribe or region. To achieve this in a diverse nation, they included specific provisions for presidential elections, such as those outlined in Section 134 of the Constitution. Similarly, the Federal Capital Territory (FCT) was envisioned as a microcosm of Nigeria, making it a crucial electoral consideration.While Section 299 technically excludes the FCT from statehood, it also grants it state-like benefits and treatment regarding legislative, judicial, and executive powers. This distinct status, rather than subordinating the FCT to a state, signifies its unique role. It necessitates a presidential candidate to secure 25% of the vote not only in two-thirds of the 36 states but also in the FCT. Sections 134 and 299 are not conflicting but complementary. The FCT’s unique governance structure, distinct from states, underscores its special position. It lacks state-level elections and is governed by the President through a ministerial proxy. The FCT’s legislative authority lies with the National Assembly. Regardless of its precise constitutional categorization, the intent of the Constitution-makers is clear. By including the FCT in presidential elections, they recognized its significance and mandated that a candidate must garner support from this pivotal region. The plain meaning of the constitutional text necessitates the inclusion of FCT votes in determining the presidential election outcome as elaborated in Eze V. Unijos ((2021) 2 NWLR Pt. 1760 pg. 208 SC). There can be no room to resort to other aids of interpretation which only become necessary and resorted to in the event of ambiguity in the words used in the Statutes. Thusly, the Supreme court in my humble opinion erred in declaring president Bola Ahmed Tinubu as the winner in the 2023 elections as he failed to meet the constitutional requirement of 25% in the FCT.
The tandem ticket dilemma: When a deputy’s disqualification unjustly unseats a governor
The judiciary, revered for its role as the guardian of justice, often finds itself the reluctant protagonist in electoral sagas. One of the most contentious issues in electoral law is whether the disqualification of a deputy governorship candidate should unravel the entire ticket, including the governor-elect. This question transcends mere legal technicalities and dives into the murky waters of electoral justice, equity, and the mechanics of joint candidacy. True, the Supreme Court had earlier held in AG Federation & Ors V. Abubakar ((2007) 10 NWLR (pt 1041)1), that a candidate and his running mate are like Siamese twins that must swim or sink together. See the cases of Adeleke V. Oyetola ((2020) 6 NWLR (Pt. 1721) Pg. 440) and Wada & Ors V. Bello & Ors ((2016) LPELR – 47015 (SC)).
The case of Biobarakuma Degi-Eremienyo & 2 Ors V. PDP & 3 ors (2021) 16 NWLR (pt.1800).), put this issue under a glaring spotlight. In the Bayelsa State Governorship election, the Supreme Court upheld the disqualification of Degi-Eremienyo, the deputy governorship candidate for the All Progressives Congress (APC), due to discrepancies in his submitted credentials. The court did not stop there. It extended its ruling to nullify the election of David Lyon, the governor-elect, reasoning that the deputy’s disqualification vitiated the entire ticket. This sparked widespread debate, not just in legal circles but across a polity that had overwhelmingly voted for Lyon.
At the heart of this controversy lies the doctrine of joint candidacy.
Nigerian electoral law considers the governor and deputy governor as two halves of a single ticket, much like a tandem bicycle. The logic is straightforward: if one wheel falls off, the bicycle cannot continue the journey. Critics (I am one of them), however, argue that this rigid approach overlooks the governor-elect’s distinct legitimacy, which is derived from the electorate’s mandate, not the deputy’s paperwork.
Proponents of the court’s decision argue that the principle of joint ticket is sacrosanct. They posit that allowing a flawed deputy to remain on the ticket even retrospectively would undermine the integrity of the electoral process. This view finds legal grounding in section 31(6) of the Electoral Act, which mandates the disqualification of candidates who provide false information to electoral authorities. By this logic, the APC’s ticket was legally defective from inception.
On the flip side, critics see this ruling as an injustice to both the electorate and the governor-elect, who had no hand in the deputy’s discrepancies. They contend that penalizing the governor-elect for his deputy’s errors amounts to punishing the innocent, a principle that runs counter to the tenets of fairness. There can be no vicarious liability for crimes. Indeed, S. … of the Constitution which permits impeachment of a Governor does not mean that if the Governor is impeached, his Deputy is also. Furthermore, they argue that the electorate’s will should be paramount, especially in cases where the governor-elect was overwhelmingly supported at the polls.
Adding to the complexity is the question of proportionality. Should a deputy candidate’s administrative slip-up nullify the votes of an entire state? This is where judicial decisions often tiptoe through a minefield. The court’s insistence on strict adherence to the law of technicality might be legally impeccable but risks alienating voters who see such rulings as overly technical and detached from the realities of democracy.
The Supreme Court’s decision also raises broader policy concerns. Does the current legal framework strike the right balance between accountability and democratic representation? Some have called for reforms to decouple the fate of governors from their deputies in cases of disqualification. Such reforms, they argue, would better reflect the spirit of democracy without compromising the integrity of the electoral process.
Conclusively, the judiciary’s decision in the Degi-Eremienyo case shows the tensions inherent in its role as the final arbiter of electoral outcomes. While the legal reasoning behind the disqualification of both candidates is clear, its broader implications on democratic representation and voter confidence remain contentious. Ultimately, this case emphasizes the need for a legal framework that not only upholds the rule of law but also accommodates the complexities of democratic governance. The will of the people must be allowed to prevail. In the end, yes, a tandem bicycle is only as good as its weakest wheel, but perhaps the road ahead calls for more nuanced engineering. (To be continued).
Thought for the week
“A corrupt judiciary is hardly likely to hold a corrupt executive to account”.
(Prashant Bhushan)