-By Aderonke E. Adegbite

The Nigerian Presidential election was held on the 25th of February 2023, to choose the Executive Head of the country out of 18(eighteen) candidates of parties as approved by the electoral body (INEC). The election was to hold across 36(thirty six) states of the federation, the FCT Abuja, and within all 774(Seven Hundred and Seventy Four) local government areas in Nigeria.

Presently described as the most keenly contested Presidential election in Nigeria, the law is that the declared winner, being a “candidate” must have scored the highest number of votes in the election and not less than 25% (one-quarter) of votes in at least 2/3(two-thirds) of the states in Nigeria and the FCT. Accordingly, sections 134 (2), of 1999 Constitution of the Federal Republic of Nigeria provides, and I quote;

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

Issues

Where a candidate has satisfied sections 134(2a) by securing the majority of votes cast in a presidential election, and in accordance with Sections 134(2b), has secured not less than ¼ (one-quarter) of votes cast in at least 2/3(two-third) of the states of the federation, can he/she be declared as the winner of that election even if he/she fails to get at least ¼ (one-quarter) of votes cast in the FCT Abuja.

The requirement to secure an additional ¼ (one-quarter) of votes in the FCT is the express position of Section 134(2b) on the candidate;

“having 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.”

A literal interpretation of the above law suggests that the country is presently constituted by 36 (thirty six) states, to which a winner shall have not less than ¼(one- quarter) of votes in 24(twenty four) states. In this regard, 24 as 2/3 (two-third) of 36 (thirty six) is a predictable and accurate fraction. The other condition on the face of the law is to win not less than ¼(one-quarter) of votes cast in the FCT Abuja.

Interestingly, other views have found a golden approach away from this clear intent the law. These perspectives make persistent reference to a seemingly clarifying Sections 299 of the 1999 Constitutions which provides 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;…”

Such opinions, which I consider political, emphasize a volatile presumption that, although section 299 of the Constitution has not expressly declared the FCT Abuja as a state, the implication of the law if applied, makes the FCT the 37th State in the country. This misconception is also justified with references to the case of Ibori v Ogboru (2005) 6NWLR (pt920) 100 C.A at pg 138, where His Lordship Augie JCA explained as follows;

The Federal Capital Territory, Abuja is treated like a State by virtue of section 299 of the 1999 Constitution, which reads-

“The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.”

If the Federal Capital Territory, Abuja is to be treated like any other State, then it is not superior to or inferior to any other State in Nigeria.

I believe that the above judicial position is being interpreted out of context, because of the legislative use of the conjunction “And” in section 134(2b) of the 1999 Constitution.

The Law provides that requisite votes must be amassed in the states in the federation “and” the FCT. This does not mean that the FCT can be simply be rounded off and assimilated into the general classification of “the states in the federation”. At this stage, may I quickly point out that none of the authorities being relied on to further this complicated position, describes the FCT Abuja as a state. Rather, sections 299 of the 1999 Constitution appears to use the literary essence of Similes. The obvious provision of the law is that:

The constitution shall apply to Federal Capital Territory, Abuja “as if it were” one of the States of the Federation.

The phrase “As if it were”, reflects the administrative need to coordinate two inherently different terms for ease of governance and administration. In my opinion, such a literary reference, cannot convert these different elements to the same thing. Without derailing from the issue at hand, it is pertinent to point out the constitutional fact that the FCT does not possess the legislative, executive or judicial structure that can by any stretch of interpretation make it one of the states in Nigeria.

Furthermore, the Oxford Dictionary defines a conjunction as a word used to connect clauses or sentences or to coordinate words in the same clause. Using the conjunction “And” to combine states of the federation and the FCT in a sentence, cannot make both entities the same. In the same vein, electoral requirements from the 36 states of the Federation and the FCT” cannot by any grammatical rule turn FCT to the 37th state in Nigeria. On the contrary, it is the inability to categorize the FCT as a state, that warrants its separate placement after the conjunction “And”. If the legislative intention is to merge these bodies, the law would have clarified. Also, the preposition “With” would have been preferred to the conjunction “And”.

On the use of conjunction in Judicial Reasoning, the Supreme Courts has rightly held in Ogunyade v Osunkeye & Anor (2007) 15 NWLR (Pt. 1057) 218, 230-231, and I quote;

In grammar or syntax, a sentence does not end with the word “and”. It is a conjunction playing the role, in grammatical construct ion, of connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first. In its conjunctive sense, the word is used to conjoin words, clauses or sentences, expressing the relation of addition or connection and signifying that something is to follow in addition to that which proceeds; and its use implies that the connected elements must be grammatically co-ordinate as where the elements preceding and succeeding the use of the words refer to the same subject matter. While the co-ordinating conjunction can begin a sentence in certain instances, its function or role in the grammar of the amended statement of claim in the instant case was to add more thing or things to the reliefs sought. As a sentence cannot end with “and”, it created a sudden blank or void in the relief sought in the amended statement of claim which needed addition for purposes of completion. (P. 245, paras. E-H

I believe that section 134(2b) of the 1999 Constitution of the federal republic of Nigeria is clear and contextually fortified against misinterpretation. It is hence of excessive and mindless legal rascality to approximate 2/3 (two-third) of 37(thirty seven) states which is 24.7, to 25(twenty five). By sections 299 of the 1999 Constitution and the case of Ibori v Ogboru (2005) 6NWLR (pt920) 100 C.A, if the FCT is treated as if “it were a state”, the numbers of states requested cannot become 25, rather it remains 24 states and the FCT.

I doubt if a mandate to get 2/3(two-third) of 37 states, is a possible arithmetic to be found in a standard Constitution. By mathematical concerns two-third of 37(thirty seven) is 24.6666666667 with the nearest approximation of 24.7.Which level of liberty allows us to round up this decimal to 25 in the course of legal interpretation?

Flowing from the positions of laws as examined, I believe that a candidate should not be declared as a winner of a presidential election unless he has not less than ¼ of votes in the FCT Abuja. Issues on the special status of the FCT for electoral purposes are best reserved off the present differentia in opinion.