WHAT IS THE INTENTION OF THE CONSTITUTION’S TWO-THIRDS MAJORITY VOTE IN 36 STATES AND THE FEDERAL REPUBLIC OF NIGERIA?

By Marvellous Ini-Obong Monday, Esq.

It is no longer news that Nigeria conducted its general elections for the presidential seat on 25th February 2023. The collation of results commenced on Sunday, the 26th day of February 2023. It lasted up to the wee hours of Wednesday, 1st March 2023, when Asiwaju Bola Ahmed Tinubu, the candidate of the All Progressive Congress (APC), was declared the winner and returned elected by the Chairman of the Independent National Electoral Commission (INEC), who served as the national collation officer in the presidential election.

However, during the state-by-state announcement of results by the State Collation Officers for the Presidential Election (SCOPE), The SCOPE for Abuja announced the results of the presidential election in Abuja as follows for the four major political parties:

The Labour Party (LP) presidential candidate Peter Obi won the Federal Capital Territory (FCT) election. Peter Obi beat Bola Tinubu of the All Progressives Congress (APC) in the Federal Capital Territory (FCT) following the tally of the results from the six area councils in the FCT. Atiku Abubakar, the People’s Democratic Party (PDP) presidential candidate, placed a distant third. Obi won four area councils, while Tinubu won two. This result resulted in no other political party besides the Labour Party garnering up to 25% of the valid votes cast in the Federal Capital Territory, Abuja.

The declaration of the results generated controversies as to whether the APC candidate, who was leading at that time, could be validly declared the election winner because he had yet to earn the required 25% of the valid votes in the FCT. In the same vein, other persons contended that the Constitution did not require that a candidate win one-quarter of the valid votes in the FCT before being declared winner in a presidential election. INEC agreed with the later arguments when it declared and returned the APC candidate as the election winner. Bola Ahmed Tinubu won the most votes in the election while gathering 25% of votes in over 25 states of the Federation but failed to do so in the FCT. 

What, then, is the intendment of section 134 of the Constitution of the Federal Republic of Nigeria 1999 (as amended)?

For purposes of clarity, S.134(2)(a)(b) provides as follows:

“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.”

S.134(2)(a)(b)

By the above provision, a candidate for an election to the office of President shall be deemed duly elected where he has the highest number of votes cast at the election. He has at least one-quarter of the votes cast at the election of each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja. 

Section 299 of the CFRN states 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. 

A first glance at section 134 will give one the impression that having 25% in FCT and 25% in 2/3 of the 36 states is compulsory, especially considering the court’s position on how it would construe “and” while interpreting provisions of the law. Although the court has stated that “and” is to be construed conjunctively, it has also made it clear that where interpreting the word “and” conjunctively will not serve the purpose of the legislation, the court may construe the word disjunctively. However, reading the first paragraph of Section 299 will make one think otherwise. 

A careful consideration of Section 299 of the CFRN throws light on the status of the Federal Capital Territory Abuja as one of the states of the Federation rather than as a separate and superior entity different from the other 36 states of the Federation. 

Section 299 clearly states that the provisions of the Constitution shall apply to the Federal Capital Territory as if it were one of the States of the Federation. The intention of the Constitution is clearly for the FCT to be treated as one of the states of the Federation in law, an additional state of the country. This is sufficient to put to rest the controversy surrounding the status of the FCT as a distinct and separate entity. 

The Judiciary is saddled with the responsibility of the interpretation of the Constitution. The courts are often inclined to interpret the Constitution using the various rules of interpretation. The courts have often interpreted the Constitution using the natural and ordinary meaning of the words used in the provisions of the Constitution. The courts give the final judgement to clarify the intention and purpose of the constitutional provisions. One of the canons of judicial interpretation is the literal rule of interpretation, which states that words must be given their plain, ordinary, and natural meaning, especially where the words are precise and unambiguous. The requirement for 25% spread in not less than two-thirds of the States, including FCT, is clear, specific and unambiguous.

Also, considering the court’s position on the Status of the FCT in the case of OKOYODE v FCDA (2005) LPELR-41123(CA) and other similar cases on the issue, one might have that eureka feeling at that moment. In OKOYODE v FCDA (supra), the court held thus:

“I am of the considered view that the natural meaning to be given to Section 299 of the Constitution of the Federal Republic of Nigeria, 1999 is that the Federal Capital Territory should be a separate administrative unit distinct from the Government of the Federal Republic of Nigeria. I further add that every institution created for the Federal Capital Territory only carries the appellation Federal. In the real sense, they are state agencies because they are institutions meant for the Federal Capital Territory.”

OKOYODE v FCDA (2005) LPELR-41123(CA)

See also the cases of BAKARI v OGUNDIPE (2021) 5 NWLR (Pt. 1768) 1 and IBORI v. OGBORU (2005) 6 NWLR (Pt. 920) 102, where the court was of the same opinion on the status of the FCT. From this angle, the FCT should be seen as one of the federation states. Therefore, a presidential candidate will need one-quarter of the votes from at least two-thirds of 37 states. 

Nevertheless, upon reading all the subsections and paragraphs of Section 299 and remembering the ejusdem generis rule, one will return to the fact that 25% is mandatory in FCT, and the submission above may not be final. Section 299(a)(b)(c) of the CFRN states as follows:

“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 –

(a) 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;

(b) all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and

(c) 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.”

Section 299(a)(b)(c) of the CFRN

The Constitution, after the introductory paragraph of Section 299, has gone ahead to state the situations and when the FCT should be regarded as a state in the succeeding paragraphs (a), (b) and (c) of section 299. The law is clear that the express mention of a thing is to the exclusion of others not mentioned. Section 299 was not to be applied to section 134 as the situations expressly mentioned under Section 299 do not include the situation during a presidential election.  

Moreso, taking a closer look at the facts of the case of OKOYODE v FCDA (supra), one will notice that the pronouncement of the court was about the provisions in the subsections of section 299 as expressly mentioned in the sections. The issue we might have before the court from this election is unique. The closest the court has come to interpreting section 134(2) of the CFRN was in the case of OBASANJO v BUHARI (2005) 2 NWLR (pt. 910) 241.

However, in that case, this was not the issue in question. Hence, the court merely reproduced section 134(2) of the CFRN when it said:

“This provision appears clear to me. Where a candidate wins the highest number of votes cast in at least two-thirds of the 36 States in the Federation and the Federal Capital Territory, Abuja, he is deemed to be elected …”

OBASANJO v BUHARI (supra)

It is gratifying that the non-separate and non-superior status of FCT was confirmed in the case of Ibori v Ogboru (2005) 6 NWLR part 920 page 102, where it was held that:

“..the Federal Capital Territory is to be treated like a State, it is not superior or inferior to any State of the Federation”.

Ibori v Ogboru (2005) 6 NWLR part 920 page 102

Therefore, in interpreting section 134 of the Constitution, the court may go with the proposed argument that posits Abuja as a state. This will be easier for the country, and Nigeria won’t have to spend another huge amount on a rerun election. Or it means the candidate should win 25% in FCT alongside 25% in two-thirds of the 36 states of the Federation. 

A candidate who has the highest number of votes and satisfies the 25% spread in not less than two-thirds of the States, including FCT, is entitled to be declared the winner of the election, even if he is unable to score at least 25% of the votes cast in FCT. the purport of the provisions is to ensure that a winning candidate should have the required majority scaled the popularity threshold by scoring the highest number of votes at the election. 

There is nothing in the clear, lucid and unambiguous provisions of Section 134(2) of the Constitution, which imposes a mandatory requirement of obtaining at least 25% of the total valid votes cast in the FCT on a candidate before he can be declared the winner of a Presidential election in which he already secured the highest votes.

Both appear correct and have the backing of the law. However, it is the position of the court that will be overriding since it is the body saddled with the responsibility of interpreting the Constitution of the Federal Republic of Nigeria. Hence, this Paper recommends that the court clears the ambiguity once and for all.

Where the two thresholds stipulated under Section 134 of the Constitution for the declaration of a winner of the election are not met by any of the candidates, INEC must conduct a second election, known as a runoff. A runoff must be conducted within 21 days from the date of the declaration of the results of the first round of the first election; A runoff is a voting system used to elect a single winner where no candidate meets the conditions for securing a win in the first round of the elections.