Law and Politics 2023
ONE QUARTER OF TWO THIRD (2/3) MAJORITY VOTES IN THE STATES OF THE FEDERATION AND THE FCT: WHAT IS THE LAW?
BY: Mbang Confidence, Esq.
01/01/2023
THE ISSUE
Amid the collation of the 2023 Presidential Election held on Saturday, 25th February, 2023, the issue of whether a declaration should be made on the winner of the polls looms. Obviously at the time of writing this paper, the Rivers State results was just collated and announced. The issue is as a result of Asiwaju Bola Ahmed Tinubu, the Presidential Candidate of the All Progressive Candidate (APC), failing to win the majority in Abuja, the Federal Capital Territory of Nigeria (FCT) and some few states. Asiwaju lost the polls to Mr Peter Obi of the Labour Party (LP) in the FCT. While Asiwaju won 12, Obi won 12 states, Alhaji Atiku Abubakar 12 states, and Engr. Rabiu Kwankwaso 1 state, one of the heavily contested elections in the electoral history of Nigeria. This has resulted to a Constitutional conundrum begging for legal answers to save the state of affairs of the Nation.
For purposes of appreciation, it is proposed to replicate section 134 of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended). Sub section (1) provides that; 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 in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
(3) In default of a candidate duly elected in accordance with subsection (2) of this section there 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.
A critical appreciation of the section reveals that the law provides for two limbs of requirements that are conjunctive and not disjunctive. There are two instances viz; where there are only 2 candidates, and instances where there are more than 2 candidates, in both situations; the candidates must satisfy same conditions. Note that sub section (3) provides that, where the candidates still fails to satisfy the requirements, there shall be a second election in accordance with sub section (4), and the candidates shall be the highest vote scorer, followed by the next highest vote scorer, and this elections shall be held within 7 days of the results of the forgoing elections subject to fulfillment of the usual conditions. Accordingly, by sub section (5), where a candidate is not still elected, then within another 7 days, the National Electoral Commission shall conduct another elections and this time, if a candidate has a majority of the votes cast, he shall be declared. In otherwise, the second limb of satisfying the 2/3 of States of the Federation and FCT, does not arises anymore.
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MATHEMATICAL EXACTITUDE OF THE CONSTITUTIONAL CONDITIONS/REQUIREMENTS
The law says one quarter (1/4) of two third (2/3) majority of the states of the Federation and the FCT. What this means is that a candidate must win 25% of votes in 25 states including the FCT. The issue that begs for answer is, what if a candidate satisfies the conditions but fails to win FCT?
Now, the Constitution says, “and” FCT. But it should be remembered that, “judex est lex loquens”, (meaning, “the judge is the speaking law”), and of course, the mere bones of a statue or law are given flesh by judicial interpretation; however do not quote me to mean the judiciary makes law, no. In a plethora of authorities, the Courts have held relying on section 299 of the same Constitution that, “the provisions of the Constitution should apply to FCT as if it were one of the states of the Federation. See with approval, Bakari v. Ogundipe (2021) 5 NWLR (pt. 1768) 1, (SC), BABA-PANYA vs. PRESIDENT, FRN (2018) 15 NWLR (pt. 1643)395 (CA), Ibori v. Ogboru (2005) 6 NWLR (pt. 920) 102(CA), therefore, the FCT cannot be placed above the status of other states. This argument is on the one hand. On the other hand, a community reading of sections 2(1)(2), 3(1)(4), 134, 299 and Part 2 First Schedule to the Constitution would definitely lead to the submission that the FCT should be treated as a state in all ramification, it would be wrong to give section 134 a special interpretation because of the word “and” FCT. For purposes of precision and scholarship, the modus of interpreting the Constitution has long been established by the Courts.
In ENOGHAMA & ORS v. OSAGIE & ORS(2022) LPELR-58504(CA), the Court noted that “When it comes to the interpretation of the provisions of the Constitution, the Court must be open to construe all the provisions of the Constitution together. In the case of Elelu-Habeeb & Anor. v. A.G. Fed & Ors., (2012) LPELR-15515 (SC), the Supreme Court per Adekeye, JSC, held: “The duty of the Court when interpreting a provision of the Constitution is to read and construe together all provisions of the Constitution unless there is a very clear reason that a particular provision of the Constitution should not be read together. It is germane to bear it in mind the objective of the Constitution in enacting the provisions contained therein. A section must be read against the background of other sections of the Constitution to achieve a harmonious whole. This principle of whole statute construction is important and indispensable in the construction of the Constitution so as to give effect to it. A.G. Bendel State v. A.G. Federation (1982) 3 NCLR 337; Anyah v. A.G. Bornu State (1984) 5 NCLR”. The Court has a duty in the construction of Constitutional provisions to factor in and focus on the objective or purpose of the Constitution in enacting the provisions contain therein.
This is apt because the provisions of the Constitution are interpreted and applied to meet the circumstances, issues or situations for which they were made. Kekere-Ekun, JSC, in the case of Skye Bank v. Iwu (2017) LPELR-42595 (SC), while considering the rules governing the interpretation of the Constitution held that “In the interpretation of constitutional provisions, the Court must bear certain principles in mind, as stated in Agbaje v. Fashola (2008) All FWLR (Pt. 443) 1302 @ 1337 B.C. They are as follows: (a) a liberal approach to the interpretation of the Constitution or statute should be adopted; (b) the Court must employ care and take the circumstances of the people into consideration; (c) the historical facts, which are necessary for comprehension of the subject matter may be called in aid; and (d) the mischief which the legislation was made to deter is arrested. The following authorities were cited: Rabiu v. Kano State (1980) 8-11 SC 130; Uwaifo v. A.G. Bendel State (1982) 4 NWLR 1; Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; A.G. Federation v. Abubakar (2007) 10 NWLR (Pt. 1041) 1 @ 80-81. It was held by this Court in Obi v. I.N.E.C. (2007) 11 NWLR (Pt. 1046) 560 @ 664 B-D that it is an accepted principle of the interpretation of the Constitution (or indeed any statute) that the provisions should be taken as a whole. It was further held that it cannot be presumed that any clause in the Constitution is intended to be without effect. His Lordship, Nweze, JSC in Saraki v. F.R.N. (2016) 3 NWLR (Pt. 1500) 531 @ 631-632 reiterated the aforementioned principles and held thus: “Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided.
Thus where alternative constructions are equally open, it is the construction that is consistent with the smooth working of the system, which the Constitution read as a whole has set out to regulate is to be preferred. Dapianlong v. Dariye (2007) 8 NWLR (Pt. 1036) 239. The principle that underlies this construction technique is that the Legislature would legislate only for the purpose of bringing about an effective result… This approach is consistent with the “living tree” doctrine of constitutional interpretation enunciated in Edward v. Canada (1932) AC 124 which postulates that the Constitution “must be capable of growth to meet the future”. The general rule of interpretation of constitutional provisions is that where the words used are clear and unambiguous, they must be given a literal interpretation i.e they must be given their ordinary and grammatical meaning. See: Egbe v. Alhaji & Ors. (1990) 1 NWLR (Pt. 128) 546;…
In Rabiu v. Kano State supra at 149, SIR UDO UDOMA, JSC stated, inter alia thus: “My Lords, it is my view that the approach of this Court to the construction of the Constitution should be, and so it has been, one of liberalism probably a variation on the theme of the general maxim ut re magis valeat quam pereat. I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words sense of such provisions will serve to enforce and protect such ends.”
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Having established that FCT is equivalent as a State under the Constitution, would 25% of votes in 25 States(other than FCT) satisfy the conditions in section 134 of the 1999 Constitution?, The answer is obvious, but hey, let’s not be too fast.
To understand the answer properly, it is pertinent to consider the following cases;
- The Supreme Court decision in Buhari v. Obasanjo (2003) All N.L.R. 168. The Court after predicating the future in case of necessity, had this to say,”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 …, I do not appreciate any ambiguity in the provision and even if there was one, this Court is bound to adopt a construction which is just, reasonable and sensible. (See Maxwell on the Interpretation of Statutes, 12th Edition, Chapter 10).”
- The second Republic case of Awolowo v. Shagari (SC) 62/1979, where the apex Court of the land declared Shagari winner after he won 12 states out of 19 States, when 2/3 majority of 19 States was indeed 13 and not 12. The court refused to approximate, it fractionalized the figure.
From a judicial mathematics, 25% of 2/3 of 36 plus FCT, is equal to 25 states, having agree that FCT is a state, 2/3 of 37 states is equal to 24.6.
Note: the candidate need not win the 25 states, the law only says not less than one quarter of votes in those states only, but he must have the overall highest votes.
“Therefore, the question is answered in the positive, if a candidate scores not less than one quarter of votes in 25 states excluding the FCT and commands the highest votes, he should be declared as winner of the elections. The FCT is not sacrosanct, it is not a golden bride that must be pursued”.
THE HIDDEN REALITIES
While the debate and politics continues, it should be remembered that Nigeria is in a cross-road, we are in a fragile state and anything can happen. Nigeria must learn from the endsars saga, the present issue have so many stakes and if it is not managed carefully, we may have a divided Nigeria at the end. Any careless step may lead us to the ‘hobbesian state’, where life may become brutish, nasty, solitary and short according to Thomas Hobbes.
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On the whole, I want to submit clearly that the Independent National Electoral Commission (INEC) has failed Nigerians on its Constitutional duty that is further expounded in the Electoral Act, Electoral Regulations and Guidelines, as well as the manual for the 2023 General Elections (a discuss for another fora), which ought to have been the main contention of the aggrieved political parties. Interestingly, as at the time of concluding this paper, I woke up to behold the declaration of Asiwaju Bola Ahmed Tinubu as President of Nigeria with the total vote of 8,794,726, Atiku 6,984,520, Obi 6,101,533 and Kwankwaso 1,496,687. What do you think?
Thanks for going through this post; One Quarter of Two Third Majority votes in The States of The Federation and The FCT.