*Says FCT Is a Super Territory That Must Be Won By Whosoever Must Be Declared President

A Senior Advocate of Nigeria, Mr. Jibrin Samuel Okutepa has learned his own thoughts on the constitutional debate as to whether a Candidate in a presidential election must score at least 25% of votes cast in an election.

Since the conduct of that elections, apart from other controversies trailing the conduct of the said elections as to whether it was free and fair and conducted as required by law, the meaning of section 134 of the 1999 Constitution regarding what is the constitutional threshold a presidential candidate before being declared elected president of Nigeria has assumed very interesting dimensions amongst legal practitioners.

On the 25th of February 2023, the Independent National Electoral Commission, INEC, conducted elections into the offices of the President of the Federal Republic of Nigeria and the National Assembly and a lot of controversies toll the declarations of the results. The learned silk had cast the mind of the public to a pre-election situation before the Constitutional dilemma.

“Before the election, I recall that Dr. Olisa Agbakoba SAN past President of NBA had written to INEC to find out the correct interpretations of that section. The manner many interventionists waved the requirements with ease clearly shows how we pay little or no attention to fundamental issues of grave constitutional implications to the growth and development of our democracy.”

“Many have written and come to the conclusion that it is not necessary to win an election in FCT so long as the constitutional requirements spread and percentages and the majority of lawful has been met. Others have said no, FCT is a compulsory question that such a candidate must pass and if he or she fails the compulsory question, then he or she cannot gain promotion to the office of the president of Nigeria.”

Giving his position on the supposed constitutional interpretation of the requirements, the learned silk had said that:

“For me the language of section 134 of the 1999 is plain and unambiguous that it does not needs political colouration. It is a plain constitutional requirements put in place by our law makers before the 25th February 2023 election. I believe the candidates who aspired to be president of Nigeria read this section of the Constitution before picking the forms of their parties. Therefore the section was not put in place to target any of them. It was what “we the people of the Federal Republic of Nigeria have agreed to give to ourselves. It was the question set for candidates that want to lead us. It is a fundamental constitutional requirement.”

For a clear understanding of the basis of his intervention in his write-up, Mr. Okutepa, SAN, has quoted section 134 of the constitution in full. It reads:

“Section 134. (1) A candidate for an election to the office of President shall be deemed to have be been duly elected, where, there being only two candidates 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.

(2) 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 each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

(3) In a default of a candidate duly elected in accordance with subsection (2) of this section their shall be a second election in accordance with subsection (4) of this section at which the only candidate shall be –

(a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and

(b) one among the remaining candidates who has a majority of votes in the highest number of States, so however that 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.

(4) In default of a candidate duly elected under the foregoing subsections, the Independent National Electoral Commission shall within seven days of the result of the election held under the said subsections, arrange for an election between the two candidates and a candidate at such election shall be deemed elected to the office of President if –

(a) he has a 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

(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within seven days of the result of the election held under the aforesaid subsection (4), arrange for another election between the two candidates to which the subsection relates and a candidate at such election shall be deemed to have been duly elected to the office of President, if he has a majority of the votes cast at the election.”

He also stated that his understanding of the plain language of the constitution is that for any candidate to be declared winner of the presidential election in which more than two candidates are contesting, such a candidate must have 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.

Therefore he implied that any candidate who cannot score one-quarter of the votes cast in FCT and one-quarter of the votes cast in each of at least two-thirds of all the States in the Federation cannot be declared President of Nigeria.

“Section 1 of the Constitution says the Constitution is Supreme. This Supreme Constitutional requirement cannot be bent on the altar of political convenience or the easy convenience of doing things in Nigeria. “

“I agree with Mr Mike Igini former INEC Resident Commissioner when he postulated on National TV in an interview before the election that FCT is a compulsory question that a candidate must pass. Those who inserted that provision did not intend to allow a presidential candidate who did not win Abuja to be declared President.”

On the Superiority of Abuja as a state, the learned silk had drawn an inspiration from the American political system to emphasize that it was mandatory and important for candidates to win the FCT in the presidential polls.

“FCT is a super territory and like the Super States in America that must be won by whosoever must be American President, so is FCT. In other words, even if as a candidate you won in all other states as required by the Constitution, but failed to get the required constitutional winning in requirement INEC cannot declare the winner. Hilary Clinton did not win the Super States in American in the election that Donald Trumps won even those she won majority of lawful votes across the States in America.”

Casting his net with Prof. Mike Ozekhome, a fellow Senior Advocate of Nigeria, the learned silk had made an illustration to buttress his position and to aid clarity.

“I am also in complete agreement with my learned friend of the inner Bar Chief Mike Ozekhome SAN, when the erudite Prof and learned silk wrote: “By a judicial mathematical analysis, 2/3 of 36 States is equal to 24 States, and in addition, the FCT, Abuja. As an example, if I request to see 24 Corpers in my law firm AND OKON, it means I want to see 25 persons in all; but Okon must be one of the 25 persons. So if 25 persons in my law firm show up, without Okon, have I had all the persons I want to see? The answer is NO. To satisfy my request, Okon must show up in addition to the 24, thus making the 25 persons I desire to see. What the law states is that the candidate must have 25% of votes in those States; and the FCT, Abuja. The law does not contemplate that the candidate must win those States”

“The arguments that a candidate who won in other states does not need to win the required mandate of the electorates are with arguments rooted in Nigerian ways of doing things, where we preferred to breach our laws to the prejudices of the rule of law and the constitution. We once the language of the Constitution is plain and unambiguous there is no need for interpretation.”

He further mentioned that the word “And” as used in the provision of Section 134 was conjunctive as against disjunctive as posed by some lawyers.

“And” in section 134 of the Constitution before FCT is a word of addition. If the draftsmen of our constitution did not intend winning in FCT as compulsory and in addition to the other winning before a presidential can be declared elected they would not have said that such a candidate must have “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 (5) of the Constitution where it is expressly stated that:

(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within seven days of the result of the election held under the aforesaid subsection (4), arrange for another election between the two candidates to which the subsection relates and a candidate at such election shall be deemed to have been duly elected to the office of President, if he has a majority of the votes cast at the election”.

In conclusion, he submitted that a candidate who did not win FCT as required by the Constitution cannot be declared elected president.