The 1999 Constitution of the Federal Republic of Nigeria spells out the threshold of votes to be scored by a candidate who participated in a presidential election to be deemed duly elected to the office of the President of the Federal Republic of Nigeria. This constitutional requirement is not alien to our constitutional jurisprudence as it had existed in the previous constitution of 1979 prior to the birthing of the 1999 Constitution. Thus, by Section 126(2) of the 1979 Constitution of the Federal Republic of Nigeria, it is provided that:

“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.”

However, what may be described as a ‘controversial feature’ which never existed in the 1979 Constitutions but which now exists in the 1999 Constitution is the question of whether it is a mandatory requirement that a presidential candidate must in addition to other requirements, obtain one-quarter or 25% of votes cast in the Federal Capital Territory (FCT) before he can be deemed to be duly elected. This seeming controversy was created by the provision of Section 134 (2) of the 1999 Constitution which provides:

“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.” (Underlining for emphasis.)

From the two provisions above, it would be observed that the difference between Section 126(2) of the 1979 Constitution and section 134(2) of the 1999 Constitution is the addition of the phrase “and the Federal Capital Territory, Abuja” to the existing “all the States in the Federation.” For the avoidance of doubts, there was the existence of the Federal Capital Territory in the 1979 Constitution just as there is in the 1999 Constitution with considerable exactitude in all spheres. (See Sections 261, 262 and 263 of the 1979 Constitution and Sections 297,298 and 299 of the 1999 Constitution.) Thus, it is of no moment to argue that the reason for the addition of the phrase in the 1999 constitution was because there was no existence of the FCT in the 1979 Constitution.

The above added phrase in Section 134(2) has of recent become a very debatable issue following the 2023 General Election in Nigeria where the candidate of the All Progressive Candidate; Ahmed Bola Tinubu was declared the winner of the election without securing 25% of the votes cast in the FCT. This writer shall only restrict this discourse to the construction of the above added phrase only.

Unlike the previous General Elections held in Nigeria, the 2023 General Election happened to be the first since the year 1999 that a presidential candidate who was declared the winner of the election failed to garner 25% of votes cast in the FCT thereby inviting the dissipation of juristic inks and intellectual hobnobbing among lawyers, journalists, politicians, and enlightened citizens, most especially as same has never been a direct issue for determination before any court of law or tribunal in Nigeria. Although in BUHARI V. OBASANJO (2005) ALL FWLR (PT. 273) 1, Section 134(2) fell for interpretation, the Court of Appeal only held that the purport of the provision is simply to ensure that a winning candidate should have a required majority. The Court of Appeal did not go further than that, as the question of 25% requirement of the votes cast in the FCT was not an issue before the court since the respondent in that case had 49.9% of the votes cast in the FCT during the 2003 General Election.

The right question to be asked at this juncture is whether the draftsman of the 1999 Constitution intended to give the FCT a special status by the addition of the phrase in Section 134(2) or whether the phrase was merely superfluous. In order to resolve this question, it will be apposite to refer to some other provisions of the Constitution related to the issue as the law is trite that constitutional provisions dealing with the same subject matter are to be construed together. See ISHOLA V. AJIBOYE (1994) 7-8 SCNJ (PT. 1) 1 AT 35.

By virtue of Section 179(2) of the 1999 Constitution, it is provided:

“A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates –

(a) he has the highest number of votes cast at the election; and

(b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.”

A critical look at the provision of this section would reveal that it has semblance with the provision of section 126(2) of the 1979 Constitution with respect to the threshold of votes to be obtained by a candidate before he will be deemed winner. Although Section 179(2) deals with threshold for governorship elections, it is relevant in resolving the question at hand. This is because the states in Nigeria to which the said section applies, all have state capitals apart from the local governments that make up the states.

Thus, it would not be out of place to ask, why did the draftsman not add such phrase as “and the State Capital” to the preceding words “all the local government areas in the State” if he did not intend to set a higher bar of threshold for the FCT under Section 134(2) of the Constitution? If the phrases added in section 134(2) were merely superfluous, why was such superfluousness not extended to section 179(2)? To my mind, it would be safe to submit that the added phrase in Section 134(2) was intentionally inserted by the draftsman. It was never superfluous as the draftsman would have simply imported Section 126(2) of the 1979 Constitution word for word into the 1999 Constitution as is noticeably observed in many other provisions without more. As was stated by the Supreme Court in the case of ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (1981) 10 SC. 1:

“Effect should be given to every word used in the Constitution; a construction nullifying a specific clause in the Constitution shall not be tolerated, unless where absolutely necessary.”

Another relevant provision of the 1999 Constitution to consider is Section 299 which provides:

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

By this provision, the Constitution recognizes the FCT in the same status as a state. Many scholars have argued that for the fact that the Constitution recognizes FCT in the status of a state under this section, it therefore means that the FCT is to be treated as a state regardless of the added phrase in section134(2) of the Constitution. This view is to my mind, very narrow. This is because it is totally wrong to pick one section of the constitution that favours one’s argument and abandon the other, as the Supreme Court had admonished in ATTORNEY GENERAL OF BENDEL STATE V. ATTORNEY GENERAL OF THE FEDERATION (supra) that:

“Words of the Constitution are therefore not to be read with stultifying narrowness.”

For instance, why is there no governor or are there no three senators for the FCT as required in other states if the FCT is to be construed stricto sensu as a state? A wider reading of section 299, 301 and the entire related sections of the Constitution would reveal that the FCT has different features from the state though the constitution was to apply in the FCT as though it was a state of its own.

In fact, the argument that section 299 of the Constitution supports the requirement that a candidate must have 25% votes cast in the FCT to be deemed the winner of the general election outweighs that which says that it merely treats the FCT as one of the states and therefore no extra requirement is needed for the FCT. This is because by virtue of section 179(2) of the Constitution, a governorship candidate must among other things secure 25% of votes cast in at least two-thirds of all the local government in the state. Since the President occupies the position of the governor in the Federal Capital Territory pursuant to section 301(a) of the 1999 Constitution, it is only reasonable that he must also secure 25% of votes cast in the FCT to be deemed winner. This in its true sense stands to represent the intention of the draftsman when he intentionally added the phrase, which was hitherto missing in the previous constitution, to the 1999 Constitution.

The law is settled that the object of interpreting statute or the Constitution is to discover the intention of the legislature, which intention is usually deduced from the language used, MTN V. ABIA STATE GOVT & ORS (2019) LPELR-46652(CA). The intention of the draftsman is manifestly clear from the added phrase that for one to be deemed the winner of the presidential election, he needs not only get 25% of the votes cast in at least two-thirds of all the states in the Federation, but also get 25% of the votes cast in the FCT so as to have widespread votes across the states of the federation and also in the FCT where he is to preside over.

It would be tautological to think that the draftsman repeated himself by adding the phrase “and the Federal Capital Territory, Abuja” to the provision already embodying “all the states in the Federation” when Section 299 provides that the FCT shall be treated as if it were a state. In other words, there was no need to have added the phrase if the draftsman didn’t intend to set a different threshold for the FCT; he would have simply stopped at the point where the 1979 Constitution stopped without more.

Indeed to my mind, there is really no controversy, ambiguity or otherwise regarding the additional phrase in Section 134(2) of the 1999 Constitution. However, as the Presidential Candidate of the Labour Party; Mr. Peter Obi and that of the People’s Democratic Party; Alhaji Atiku Abubakr have gone to court to challenge the outcome of the 2023 General Elections, we look forward to seeing the phrase receive a judicial interpretation. As it was posited long ago by Oliver Wendell Holmes Jr; a United States Legal philosopher, the law is what the judges do in court but nothing more pretentious.

Eric C. Ezugwu Esq. LL.B, BL.

Managing Partner

Kingshill LegalConsult, Abuja & Minna.