Nigeria has just concluded its 2023 presidential elections and like many other elections before it, has raised various constitutional issues.
Noteworthy is the issue on the requirement that for a person to be declared winner in a presidential election, he must not only have the highest or majority of the votes in an election but must have at least 25 percent in two-thirds of the states of the Federation and the Federal Capital Territory (FCT), Abuja. The correct interpretation of the section has raised disputes among legal experts and stakeholders, especially with the fact that it is a somewhat novel case. Nigeria has never had any president with the highest votes not having at least 25 percent of votes in the FCT during elections.
What is the 25 percent requirement?
According to section 134 (2) of the 1999 Constitution of Nigeria, “a candidate for an election to the office of the President shall be deemed to have been duly elected where, there been more than two candidates for the election, he has the highest number of 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.”
Summarily, for a candidate to be elected as president, he must first, have the highest number of votes cast in the election. Secondly, he must have not less than 25% of votes cast in each of at least 24 states and the FCT.
Interpretation by Legal Experts
According to Olisa Agbakoba, SAN and former chairman of the Nigerian Bar Association, “by section 134 of the Constitution, for a person to become president, he must first, have the highest number of votes cast in an election. Also, he must not only win 25 percent votes of at least two-thirds of 36 states which is 24 states but is required to win 25 percent of the votes in the FCT as well”.
“The result of this is that to become president, a person must the have the highest number of votes and those votes must be spread in such a way that it must be seen throughout at least 24 states of the Federation and the FCT. This is to ensure that such a person is a popular choice among Nigerians”, Agbakoba stated.
He further noted that, “so even if a person wins all the votes in all the 36 states and does not win 25 percent of votes cast in the FCT, then such a person cannot become the President of Nigeria”.
Also speaking, Paul Ananaba, SAN noted that the Constitution included the conjunction “and” in the provisions. He stated that what the law provides for is “each of at least two-thirds of all the states (which is 24 states) and the FCT, Abuja”.
This word “and” according to the laws of interpretation law is a conjunctive word used to join two words that can stand on their own. “This simply means that it is the 24 states and the FCT”.
It has been argued that the provision was included to make the FCT a deciding factor in elections. More so, as the FCT is an area on its own with no ethnic or cultural bias attached, then a popular candidate should have no problem getting 25 %. .According to INEC, only Peter Obi secured over 25% of the votes in FCT.
The issue
The issue centres on the interpretation of the provision. While some legal experts are of the view that the FCT should be treated as a state and as such it is not necessary for a candidate to get 25 percent of the votes precisely in the 24 states, other experts opine that the FCT is a stand-alone requirement and any candidate who must be declared winner must get 25 percent of the votes in the FCT, this is apart from getting 25 percent in at least 24 states of the Federation
In the presidential election results as announced by INEC, only Peter Obi, the Labour Party candidate secured 25% and even more of the votes in the FCT, having 281,717 which is 59 percent. Peter Obi who garnered only 6, 101, 533 votes was not the winner as he did not have the highest number of votes in the election. Bola Ahmed Tinubu of All Progressives Congress who recorded the highest votes of 8,794,726 but had only 90,902 which is 18.98 percent of the votes in the FCT.
The 1979 Presidential Elections
The1979 presidential elections had 5 contenders including Shehu Shagari of the National Peoples’ Party (NPN); Obafemi Awolowo of the Unity Party of Nigeria (UPN); Nnamdi Azikiwe of the Nigerian People’s Party (NPP); Aminu Kano of Peoples Redemption party (PRP) and Waziri Ibrahim of Great Nigeria People’s Party (GNPP).
After the elections, Shagari polled 5,688,857 votes out of the over 16 million votes cast in the election. This represented 33 percent of the votes while the remaining votes were shared between the other contenders. So, there was no question of Shagari having the highest votes. However, the issue in the case of Obafemi Awolowo v Shehu Shagari was the constitutional requirement that the winner of a presidential election must have 25 percent in at least two-third of the states of the Federation. At the time, there were only nineteen states in Nigeria and out of which Shagari recorded 25 percent of votes in 12 states. Shagari argued that he had received 25% of the votes in twelve states, which constituted two-thirds of the required threshold. He also claimed that his 19.9 percent votes which he got in Kano State represented the remaining 0.66 in the constitutional threshold. However, Obafemi Awolowo contended that the threshold should be rounded up to thirteen states, which meant that Shagari had fallen short of the required threshold; since mathematically rounding off 12.66 is 13.
Section 126 of the 1979 Constitution provided that a person can only be declared winner at a presidential election if “he has the highest number of votes cast at the election and; he has not less than one-quarter (which is 25 percent) of at least two-thirds of all the States in the Federation. This meant that a person can only be declared winner of a presidential election if he had the highest number of votes and has not less than 25 percent of the votes cast in at least two thirds of the states of the federation.
Noticeably this provision is without the inclusion of “and the FCT” which is now part of the 1999 Constitution. The provision was omitted even though Nigeria already had its Federal Capital Territory in Abuja.
Since then, additional states were created and Nigeria now has 36 states, so getting an exact figure for two-thirds of the states is not an issue but the correct interpretation and the spirit of the law in including the provision “and the FCT”
It has been argued that the provision was included to make the FCT a deciding factor in elections. This argument is that the drafters of the 1999 Constitution tried to prevent the issue which came up in 1979 from coming up again. So, they envisaged that if more states may be created in the future and arrived at another odd number, then the FCT can be the clincher. More so, since the FCT is an area on its own with no ethnic or cultural bias attached, then a popular candidate should have no problem getting 25 percent if not the majority of votes in such a place. Hence, the FCT will be some sort of neutral determinant.
However, the other argument is that the law will only serve injustice if the law were interpreted in such a manner as to deprive a person who perhaps, had 25 percent of votes in two-third of the states or more and is unable to get 25 percent of the votes in the FCT. Also, if section the FCT is treated as a state of its own as stipulated in section 299 of the 1999 Constitution, then two-thirds of the states which is 24 plus the FCT equals 25 states. This means that provided a candidate has 25 percent of the votes in 25 states, he may be declared the winner.
But the argument here again is “what is the intent and purpose of the Constitution in section 299?
Section 299 of the 1999 Constitution states 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; and accordingly, all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja.
The section further provides that the “provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section”.
The task is to ascertain whether the combined reading of Section 134(2), Section 299, and other relevant provisions of the law leads to the conclusion that securing 25% of the votes in the FCT is a separate and independent condition for being elected as President or whether the FCT, as one of the 37 states in Nigeria, is subject to the same requirement as other states, which is that the winning candidate must obtain at least 25% of the votes in two-thirds of all states (i.e., 25% in 24 states).
By a literal interpretation of section 134(2) of the Constitution, it seems that a successful candidate must secure at least 25% of the total votes cast in two-thirds of the states in Nigeria and the Federal Capital Territory (FCT).
Therefore, a candidate must obtain 25% of the votes in at least 24 states and in the FCT. This is supported by Part 1 of the First Schedule the 1999 Constitution which specifically enumerates the states of the federation without including the FCT. However, neither this provision nor section 299 are subject to the other.
By a comprehensive reading of Section 299, it would seem that the Federal Capital Territory (FCT) is treated as a state with regard to enjoying the executive, legislative, and judicial powers that are typically vested in states. This means that the President serves as the executive head of the FCT, the National Assembly is responsible for legislating the local laws of the FCT, and the FCT High Court possesses territorial jurisdiction in the FCT.
It will be impossible to read section 299 in isolation from the phrase “and accordingly” which follows it. This is because a statute must be interpreted in conjunction with the provisions that accompany it. As seen in the case of Iwuchukwe v AG Anambra State, it is essential to read a provision as a whole and not in isolation. The court emphasised the “noscitur a socis” rule, which is to the effect that the true meaning of a word must be determined by the words that accompany it in that provision.
From the foregoing, section 299 provisions could be interpreted to mean that the FCT would be considered as a state only to the extent that the President, National Assembly, and High Court of the FCT exercise executive, legislative, and judicial powers over the FCT. To ensure the governance of the FCT and that it has its own government, to this extent, the FCT is a state. A state for this specific purpose and not for all purposes. More so, in cases where the courts have regarded the FCT as a State, it has been solely for the purpose of furthering the executive, legislative, or judicial rights and privileges of the FCT. To assume otherwise may be unreasonable.
Interpreting Section 299 of the Constitution to mean that the FCT exists as a State of the Federation for all purposes makes superfluous the wording of Section 134(2)(b), which requires the winning candidate to obtain 25% of votes in each of at least two-thirds of all the states in the Federation and the FCT. This interpretation also conflicts with the provision which enumerates the states of the Federation and clearly identifies the FCT as a distinct entity. An alternative interpretation of Section 299 that limits the FCT’s status as a state to the conferral of executive, legislative, and judicial privileges, as reflected in the context of the decisions of the courts appears to be more coherent and consistent with the remainder provisions of the Constitution.”
Additionally, with regards to the requirement of 25% of votes in the FCT, it is worth noting that the 1979 Constitution did not specify this requirement and only stated that the winning candidate must have 25% of at least two-thirds of the votes cast in all the States of the Federation. Therefore, it is important to consider that the drafters of the 1999 Constitution deliberately included this additional requirement for the FCT, possibly with the intention of ensuring that the winning candidate enjoys a significant level of popularity not only across a broad geographic region but also in the FCT, which serves as the nation’s capital and a cosmopolitan city for all Nigerians which would truly reflect what the people’s will.
It is noteworthy that since the 1979 supreme court judgement, the provision of section 134 has not been brought before the courts for interpretation. Given that the stipulations in section 134 have been altered, both the Bar and the Bench will have a field day in court. We await the arguments and decisions as these will set an important precedent in Nigeria presidential elections.
