The 2023 Presidential Election: The twists and possibility of a rerun

Introduction

Since the return of Nigeria’s democratic rule in 1999, Nigerians have had the opportunity to vote for their next president in secret ballot presidential elections held every four years.

The next presidential election scheduled for February 25, 2023 has attracted commentaries and diverse opinions from stakeholders and electoral pundits as to where the pendulum will swing.

These commentaries, though diverse, seem to have a common denominator – the unpredictability of its outcome. It has been suggested in some quarters as the most unpredictable presidential election in Nigeria’s recent history.

The reason is not far-fetched. For the first time, there are more than two clear contenders in the race.

This is a departure from the norm where the elections have always been a two-way race between two leading parties: in 1999, the Peoples’ Democratic Party (PDP), and the All-Peoples’ Party (APP); the Peoples’ Democratic Party and the Congress for Progressive Change (2003, 2007 and 2011); the Peoples’ Democratic Party and the All-Progressives Congress (2015 and 2019), who jointly accounted for more than 90% of the total votes cast in those elections.

In 2019, the total number of votes cast was 28,614,190 votes, while the two major contenders jointly scored 26,454,165 votes, about 92.5% of the total votes cast.

2015 was not different, as they jointly scored 28,278,083 votes representing 96% of the 29,432,083 total number of votes cast. Some have said that this might not be the case next month.

The increase in the number of clear contenders is not unconnected with the defection of both Mr. Peter Obi and Mr. Rabiu Kwankwaso from the Peoples Democratic Party to the Labour Party and the New Nigeria Peoples Party, respectively.

This has significantly affected the support base of the two major political parties and may affect the parties’ ability to secure the constitutional requirement of 25% of the votes cast in at least two third of the States of the federation and the Federal Capital Territory.

Hence, the high possibility of a rerun. Even the election umpire, the Independent Electoral Commission (‘the Commission’), through its spokesman, Festus Okoye recently alluded to this.

How is a candidate duly elected as the president of the Federal Republic of Nigeria?

Section 133 (2) of the constitution of the Federal Republic of Nigeria prescribes that, a candidate will only be deemed duly elected where he secures the highest number of the total votes cast in the entire federation, and at the same time secures at least twenty-five percent of the votes cast in two-thirds of all the States of the federation and the Federal Capital Territory. Both requirements are conjunctive. They must be jointly satisfied.

For the purpose of computation, the Federation is assumed to have 36 States and the FCT is an independent territory.

The candidate must then secure 25% of the votes in no less than 24 States. The candidate will then be required to also secure 25% of the votes in the FCT.

Any other interpretation computing the States as 37 as against 36 will give rise to fractionalization of States. In essence, 2/3rd of 37 will require the candidate to score at least 25% of the votes in no less than 24.7 of the States.

This concept of fractionalisation gave rise to a sufficient amount of controversy in the notorious case of Awolowo v. Shagari (1979) LPELR-653(SC).

Fortunately, this problem is avoided with the constitution making it clear that the Federal Capital Territory will be treated as an independent territory.

The resultant effect is that even when a candidate secures the highest number of votes cast amongst other candidates, he will still not be eligible to be declared winner if he fails to secure at least 25 percent of the votes in two-thirds of the States (24 States) of the Federation and the Federal Capital Territory.

The constitutional requirements for a rerun

What then happens where none of the candidates satisfies both conditions? This is anticipated by section 134 (3) of the Constitution of the Federal Republic of Nigeria.

It provides that where any of the candidates fail to attain the highest number of the total votes cast and twenty-five percent (25%) of the votes cast in at least two-thirds of the States of the federation and the Federal Capital Territory, no candidate shall be deemed elected as the president.

The Independent National Electoral Commission (INEC) is then compelled to conduct another election within 7 days of the announcement of the result of the election. It is pertinent to note that it is not a contest between the candidate with the highest number of votes and the runner-up in terms of simple quantum of votes.

The contest is between the candidates who are leading by votes and spread, (but fail to satisfy the constitutional requirement).

An illustration for the purpose of ascertaining the requirement of a spread is required.

Certain assumptions will have to be made as follows: Firstly, that the number of accredited voters in the least populated state is 1,000,000.

The votes cast in that state is 500. On that preposition, the minimum number of votes required to satisfy the constitutional “spread” requirement is 125 of the votes cast, (representing 25% of the votes cast in that state).

Assume further, that Party A scores 30 million votes in 10 States and scores no other votes in any other States of the Federation or scores less than the constitutional requirement.

On the other hand, Party B scores 8 million votes across 15 States of the federation (again falling short of the constitutional requirements in other states).

Finally, Party C scores 6 million votes spread across just 20 States. None of the parties has satisfied the constitutional requirement. Party A which has a majority of the votes does not have the minimum spread.

The constitution prescribes the category of those eligible to engage in the rerun election as the candidates having the majority of votes in the highest number of States in the federation.

Simply put, preference is accorded to candidates having the greatest number of votes spread across the maximum number of States in the country. In the scenario given above, the contest will be between Parties B and C.

The number of States being the ultimate deciding factor. However, where amongst the contestants for the runner-up position, they all have their votes spread across an equal number of States, the qualifying candidate to engage in the rerun process will be the candidate with the highest number of votes cast in the election.

The twist to this runner-up scenario is that priority is given to the candidate who has a greater spread in terms of the number of States where he has secured the highest number of votes. The intent of the drafters of the Constitution is to ensure that a president is acceptable across the country.

The relevant constitutional provision dealing with rerun is complex and ambiguous. There is therefore a compelling alternative argument, suggesting that the party scoring the overall highest number of votes cast is guaranteed a rerun.

The fact that the number of votes cast for such a party is from a limited number of states (far less than 24 states) becomes irrelevant. In our example above, that will be party A.

In effect, Party A, having secured a comfortable right to participate in the rerun, there is then a need to ascertain which of the other contenders ought to engage party A. The qualifying criteria to ascertain this opponent is prescribed by the constitution. It is the party with the highest number of votes in the maximum number of states.

So, relying on the analogy above, party C who has in totality a quantum of votes less than that of parties A & B, may yet be the party that will engage A in the rerun. This is because speaking loosely, party C has a wider spread of votes than Party B. This interpretation, unduly favouring party A (only on account of his having the overall highest number of votes cast) is unlikely to win any applause.

This is because any interpretation that guarantees any party the right to a re-run, on account of having scored the maximum number of votes, appears to undermine the clear objective of the constitution. The discernible objective is that each candidate ought to demonstrate acceptability across the country, by securing votes accordingly.

The rerun and the possibility of a further rerun

Upon the conduct of the first rerun election, the candidate that secures the highest number of votes cast and secures twenty-five percent (25%) of votes cast at the election in at least two-thirds of the States of the federation and the Federal Capital Territory, shall be deemed duly elected as the President of the Federal Republic of Nigeria.

That said, where the two candidates for the rerun still fail to secure twenty-five percent (25%) of the votes cast in at least two-thirds of the States in the federation and the Federal Capital Territory, section 134(5) of the Constitution further provides that another or a second rerun election shall be conducted between both candidates within seven days of the announcement of the result of the election held.

However, this second rerun election will then be decided by the highest number of votes cast. Accordingly, the criteria for success at the second rerun, unlike the first rerun, is a simple majority of the votes cast in favour of any of the candidates.

Notwithstanding the opinion polls suggesting a keen contest, it is unlikely that each of the leading contestants will fail to satisfy the minimum criteria of securing 25% of the votes in at least 24 States. Still, there remains a possibility of a rerun, so its impact must be considered as well as the economic consequence of such an exercise.

The economic implication of a rerun

There is no doubt that a possible rerun will have grave financial implications on not just the Commission but the economy at large. The Commission’s budget for the 2023 election at N355billion accounts for a significant percentage of the overall budget. However, what is not clear is whether the current budget accommodates a possible rerun.

Read also: 2023 election, the electoral institutions and the rest of us

Where it does not, will the Commission request for a supplementary budget in the event of a rerun or will funds allocated to other heads of the budget be used to finance the rerun? These are questions that ought to be immediately addressed since a rerun must take place within seven days of the date of announcing the result of the election.

Conclusion

As noted earlier, the unpredictability of the 2023 presidential election is largely due to the decamping of both Mr. Peter Obi and Mr. Rabiu Kwankwaso from the Peoples Democratic Party. This has led to the explosive “Obidient” and “Kwankwasiya” Movements. The South East which used to be a traditional base for PDP may tilt towards Peter Obi’s Labour Party.

While Mr. Rabiu Kwankwaso’s New Nigeria Peoples’ Party whose followership has strongly penetrated the North could also distort the voting pattern in the Northern part of Nigeria. Religion might play a significant role with the APC having both its president and vice-president sharing the same faith. Since 1993, the leading parties have always had the president and vice-president identifying with different faiths.

Furthermore, the choice of running mates will also affect the voting pattern. For example, Dr. Ifeanyi Okowa will definitely affect the voting pattern in the South-South, while the All-Progressive Congress’ Senator Kashim Shetimma will affect the voting pattern in the North, especially the North East where he wields some influence.

Yusuf Datti Baba-Ahmed, the Vice-Presidential candidate for the Labour Party, who champions education and has established a university, will undoubtedly also have an impact on the voting pattern.

This underscores the fact that the voting pattern in the 2023 presidential election may take a new dimension, yet a deeper analysis of the constitutional provisions governing re-run indicates that such a contest is only but a remote possibility. With the elections in a few weeks, all speculations will however be clarified shortly.

The authors are Eghobamien, SAN, managing partner, Perchstone & Graeys; Odia, senior associate, Perchstone & Graeys and; Ruth Adodo.