Election is a process that must be carried out within the bounds
of the laws of the land. In Nigeria, elections are held every four years.
Extant laws are made to ensure that it is only the candidate
that has the overwhelming support and acceptance of majority of Nigerians that
becomes the President. That is what democracy is all about.
Democracy as a concept, was popularised on 19th November, 1863,
by Abraham Lincoln, a former American President, during his Gettysburg
Declaration, as government of the people, by the people and for the people.
Sundry legal issues have arisen from the conduct of the 2023
general elections which held on Saturday, 25th February, 2023.
Did the election reflect the mantra of section 14(2) of the 1999
Constitution to the effect that “sovereignty belongs to the people of Nigeria?”
I think not.
My humble opinion is that the 2023 Presidential elections dwarfs
and diminishes the 2007 Presidential Elections (which the then President, Umaru
Musa Yar’Adua, had admitted) in all indices of a fundamentally flawed election.
THE
2023 PRESIDENTIAL ELECTIONS
The 2023 Presidential elections witnessed massive turnout as
Nigerians were interested in voluntarily electing leaders of their choice.
The polls were however bedeviled by large-scale irregularities,
bare-faced manipulations and brazen non-compliance with extant laws governing
the electoral process in Nigeria.
INEC even shut down its portal for over 24 hours due to what it
called technical hitches and glitches.
The main issue that is currently trending is whether or not,
Asiwaju Bola Ahmed Tinubu (“Tinubu”), the Presidential candidate of the All
Progressive Congress (APC) did not meet the constitutional requirement of
polling at least not less than one quarter (1/4) of votes cast in the elections
in at least two third (2/3) majority of all the States of the Federation and
the Federal Capital Territory (FCT); and whether he should have been declared the
winner of the Presidential elections as done by the Independent National
Electoral Commission (INEC).
This legal conundrum has suffered several commentaries from
Jurists, Scholars, political analysts; and even the not so informed.
This rather lengthy dissertation is my humble contribution as a
Nigerian to the current debate. It is interesting to note that amidst this
legal uncertainty, Asiwaju Bola Ahmed Tinubu, the APC candidate, was
nonetheless declared “winner” and even presented with the “Certificate of
Return” as “President-elect” of the Federal Republic of Nigeria.
This was done by INEC on Wednesday, 1st of March, 2023.
The collation, declaration and issuance of certificate of return, I humbly
submit, all run counter to the provisions of sections 25, 47(2), 60(1), (2),
(4) and (5); 62; 64(4)(a) & (b); 70; and 148 of the Electoral Act;
paragraph 38 of the INEC Guidelines and Regulations; paragraphs 2.8.4; 2.9.0;
and 2.9.1; of the INEC Manual For Election Officials, 2023; and judicial
authorities.
Results from the manually transmitted results as collated and
declared by INEC on the 1st day of March, 2023, showed that Tinubu, the
candidate of the APC, on the face of it, was said to have secured the highest
number of votes cast at the presidential election.
He is said to have garnered a total of 8,794,726, to allegedly
defeat his closest rivals, Waziri Atiku Abubakar of the Peoples Democratic
Party (PDP), who was said to have got a total of 6,984,520; with Mr. Peter Obi
of the Labour Party (LP), being ascribed with 6,101,533 votes.
However, in the Federal Capital Territory, Abuja, where we have
total valid votes of 478,923, Tinubu, the candidate of the APC, was said to
have secured only 90,902 (19.76%) of the votes cast at the FCT; with Atiku
alleged to have 74,194 (16.13%); and Peter Obi said to have 281,717 (61.23%).
Did Tinubu win? Let us discuss.
ELECTING
A PRESIDENT WHERE THERE ARE TWO OR MORE PRESIDENTIAL CANDIDATES
The Constitution is the birth certificate of any Nation. It is the organic law,
the fons et origo and the grundnorm. See ROSSEK V. ACB LTD (1993) 8NWLR (PT
312) 382; DAPIALONG V. DARIYE (2007) 8 NWLR (PT 1036) 332.
For purposes of clarity and better appreciation of issues,
section 134(2) of the 1999 Constitution 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 in each
of at least two-thirds of all the States in the Federation and the Federal
Capital Territory, Abuja.” (Emphasis added).
The above provisions have been interpreted differently by several
lawyers and non-legal minds. Some opine that it is not mandatory that a
candidate must secure 25% votes in the Federal Capital Territory. Others
disagree. I am of the latter school of thought.
A skeletal digest of the section reveals that the law provides
for two limbs of requirements that are conjunctive and not disjunctive; that
is, (a) the candidate must have the majority of votes cast at the election; and
(b) he must have not less than one-quarter of the votes cast at the election in
each of at least two-thirds of all States of the Federation AND the Federal
Capital Territory, Abuja.
Furthermore, there are two instances contemplated in the provision dealing with
where there are only 2 candidates; and where there are more than 2 candidates.
In both situations, any of the candidates must satisfy both conditions of 25%
in 24 States; and 25% in the FCT, Abuja. One without the other cannot work.
Please, note that sub section (3) provides that where the candidates still fail
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 fulfilment of
the above usual conditions.
Accordingly, by sub section (5), where a candidate is not still
elected, then within another 7 days, the National Electoral Commission (INEC)
shall conduct another election; and this time, if a candidate simply has a
majority of the votes cast, he shall be declared winner. In other words, this
time around, the second limb of satisfying the 2/3 of States of the Federation
and FCT, no longer arises.
THE
25% CONSTITUTIONAL REQUIREMENT AND LEGAL AND GOVERNANCE ISSUES ARISING
THEREFROM
The gravamen of this discourse is the mathematical exactitude of
the requirement of 25%. The wordings of the Constitution are quite clear and
unambiguous.
They demand for not less than one-quarter of the votes cast at
the elections in each of at least 2/3 of all the States; AND the Federal
Capital Territory.
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 jurisprudence behind this provision is to ensure
that the President as the Numero Uno citizen of the Nation, enjoys a reasonable
range of widespread acceptance by majority of the people he seeks to govern,
including those inhabiting the seat of power where he would govern from.
To know whether a candidate must win 25% of 24 States aside the FCT, Abuja, to
be declared as winner, we must consider the provisions of section 134 against
the background of a community reading of sections 2(2), 3(1) & (4), 48,
297, 298, 299, 301, and 302 of the 1999 Constitution.
We shall now replicate
this sections verbatim ad literatim before dabbling into the legal gymnastics
of interpretation in the light of decided judicial authorities and scholarly
ingenuity.
Section 2(2) CFRN:
“Nigeria shall be a
Federation consisting of States and a Federal Capital Territory.”
The section did not just say “states”. It added “And the Federal Capital
Territory”.
Section 3(1) & (4) CFRN:
“(1)There shall be 36
states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi,
Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe,
Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger,
Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.”
The FCT, Abuja was not
mentioned here. However, in section 3 (4) The Federal Capital Territory, Abuja,
is as defined in Part II of the First Scheduled to this Constitution.” It was
thus treated separately.
Section 48 CFRN:
“The Senate shall
consist of three Senators from each State and one from the Federal Capital
Territory, Abuja.”
Here, the FCT, Abuja was
recognised as different from other states.
Section 297 CFRN:
“(1)There shall be a
Federal Capital Territory, Abuja the boundaries of which are as defined in Part
II of the First Schedule to this Constitution.
(2)The ownership of all lands comprised in the Federal Capital Territory, Abuja
shall vest in the Government of the Federal Republic of Nigeria”.
The above provisions clearly identified the FCT, Abuja, and its lands as distinct
and different from states.
Section 298 CFRN:
“The Federal Capital
Territory, Abuja shall be the Capital of the Federation and seat of the Government
of the Federation.”
This section gives the
FCT, Abuja, a special status as “the Capital of the Federation and the seat of
the Government of the Federation”. No other state was accorded this special
status.
Section 299 CFRN
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; 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 301 CFRN:
“Without prejudice to
the generality of the provisions of section 299 of this Constitution, in its
application to the Federal Capital Territory, Abuja, this Constitution shall be
construed as if-
references to the
Governor, Deputy Governor and the executive council of a State (howsoever
called) were references to the President, Vice- President and the executive
council of the Federation (howsoever called) respectively;
(b) references to the Chief Judge and Judges of the High Court of a State were
references to the Chief Judge and Judges of the High Court, which is
established for the Federal Capital Territory, Abuja by the provisions of this Constitution;
and
(c) references to persons, offices and authorities of a State were references
to the persons, offices and authorities of the Federation with like status,
designations and powers, respectively; and in particular, as if references to
the Attorney-General, Commissioners and the Auditor-General for a State were
references to the Attorney-General, Ministers and the Auditor-General of the
Federation with like status, designations and powers.”
Both sections 297 and
301 clearly donates all the attributes and powers of a state (Legislative,
Judicial, Executive Offices, designations and powers) to the FCT as a separate
legal entity.
Section 302 CFRN
provides that:
“The President may, in
exercise of the powers conferred upon him by section 147 of this Constitution,
appoint for the Federal Capital Territory, Abuja a Minister who shall exercise
such powers and perform such functions as may be delegated to him by the President,
from time to time.”
The above provisions
were pronounced upon and upheld in BAKARI V. OGUNDIPE (2020) LPELR – 4957 (SC),
(PER BODE RHODES-VIVOR, JSC, rtd).
Thus, the FCT, Abuja,
like any state in the Federation, has its own courts, distinct Chief Judge, a
Senator; executive powers exercised by the President for it, similar to
Governors of states, legislative powers vested on the NASS, instead of states
with Houses of Assembly; with a Minister as its administrative Head rather than
a Governor. It is distinct from states.
This Constitution
imbroglio becomes easy to untie when we recall some precedents.
In AWOLOWO V. SHAGARI & 2 ORS (1979) FNLR Vol. 2, the apex Court considered
Section 34A(1)(c)(ii) of the Electoral Decree which is impari material, except
that it did not add “And the FCT, Abuja.” It held:
“A candidate for an
election to the office of President shall be deemed to have been duly
elected to such office where
(c) There being more
than two candidates
i.He has the highest number of votes cast at the election; and
ii.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.”
The difference between
this Decree and Section 134 of the Constitution being considered is the
addition of “and the Federal Capital Territory, Abuja’’ under our extant 1999
Constitution.
In AWOLOWO’S CASE,
Fatayi-Williams, CJN, held that Section 34(1)(c)(ii) of the Decree was a
clumsily worded section which was nevertheless devoid of any semantic
ambiguity. In that same case, Obaseki, J.S.C., construed the meanings of
the word “each” and the words “States in the Federation”.
He held that the word
“each” in subsection (1)(C)(ii) of section 34A qualified “a whole State”; and
that the words “States in the Federation referred to the land area and not
votes. For the avoidance of doubt, we shall reproduce the exact words of the
learned Justice; thus:
“The word ‘each’ in the
subsection (1) (c)(ii) of Section 34A qualifies a whole State and not a fraction
of a State and to interpret otherwise is to overlook the disharmony between the
word ‘each’ and the fraction ‘two-thirds’. …Looking at the subsection still
further, the words ‘States in the Federation’ can only refer to the land area
and not the votes.
Arising from the
interpretation that 2/3 of all the States in the Federation refers to the land
area and not the votes, the result of the voting in Kano State can only mean
what is stated in Exhibit ‘T’ and ‘T2’ and nothing else. …”
By way of extrapolation, the “land area” of the FCT must be distinguished from
the land area of each of the 24 States of the Federation.
THE DEFINITION OF THE FEDERAL CAPITAL TERRITORY, ABUJA
The Federal Capital
Territory is defined in Part II of the First Schedule to the Constitution.
The definition is in
relation to Sections 3 (Chapter I) and 297 (Chapter VIII) of the Constitution.
Section 299 of the 1999 Constitution which is in Chapter VIII, flows directly
from the provisions of Section 297 of the Constitution. Section 299 of the
Constitution states 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.” Part 11 of the Constitution also defines the FCT as a land area of
its own, separate and distract from the land mass of any other State.
Consequently, the 1999
Constitution has introduced a new dimension different from the 1979
Constitution, by adding a further requirement of 25% in “and the Federal
Capital Territory, Abuja.”
In BABA-PANYA V.
PRESIDENT, FRN (2018) 15 NWLR (Pt 1643), 423), it was held that the FCT is to
be treated like a State and that it is not superior or inferior to any State in
the Federation.
The facts of this case
are that the Appellant had filed a suit at the Federal High Court, Abuja,
asking the court to determine whether by the combined provisions of Section
147(1), (3),(14) and 299 of the 1999 Constitution, the indigenes of the FCT,
Abuja, are entitled to Ministerial appointment and whether the continued
refusal or failure by previous and current Presidents to so appoint an indigene
of FCT, Abuja, as Minister of the Federation was tantamount to a flagrant
violation of the Constitution. The court held that:
“By the combined effect
of the provisions of Sections 299, 147(1) and (3) and 14(3) of the Constitution
of the Federal Republic of Nigeria, 1999, it is obligatory or mandatory for the
president of Nigeria to appoint at least one Minister from the indigenes of
FCT, Abuja as a Minister to represent them in the Federal Executive Cabinet of
the Federation.
Failure to appoint any
Minister from amongst the indigenes of FCT, Abuja, is a fragrant violation of
the Constitution. The provisions are aimed at ensuring equal and fair
participation of all States in the recognition of the diversity of the people
of this country and the need to forge national unity, promote a sense of
belonging among all the peoples in the Federation. …”
The gravamen of this
judgment is simply that whatever is applicable to States in the Federation
shall equally be applied to the FCT.
If the Constitution
therefore requires votes cast in at least two-thirds States in the Federation
“and the FCT, Abuja,” it is compulsory that every candidate must meet that
requirement of “and the FCT, Abuja,” before he is declared the winner. Tinubu
did not. It was therefore unconstitutional and illegal for him to have been
declared President-elect and presented with a Certificate of Return by INEC.
THE STATUS OF THE FCT IN THE
CONSTITUTION
Flowing from the above,
let us now examine section 299 of the 1999 Constitution.
In BAKARI V. OGUNDIPE (2021) 5 NWLR (Pt. 1768) 1, the apex court of the land
held:
“By virtue of section 299(a), (b), of the Constitution of the Federal Republic
of Nigeria, 1999 (as amended), the provisions of the Constitution shall apply
to the Federal Capital Territory, Abuja, as if it were one of the States of the
Federation; and accordingly 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 provisions are courts established for the Federal Capital Territory, Abuja;
all the powers referred to in paragraph of the section shall be exercised in
accordance with the provisions of the Constitution; and the provisions of the
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 the section.
By virtue of the
provisions of section 299 of the Constitution, it is so clear that Abuja, the
Federal Capital of Nigeria, has the status of a State. It is as if it is one of
the States of the Federation.” (Pp. 36-37, paras. E-A). See also, with
approval, the following authorities; NEPA vs. ENDEGERO (2002) LPELR-1957(SC).
BABA-PANYA vs. PRESIDENT, FRN (2018) 15 NWLR (pt. 1643)395; (2018) LPELR-44573(CA),IBOR
V. OGBORU (2005) 6 NWLR (Pt. 920) 102.
There is no ruckus or
brouhaha with the clear position of the courts as stated above. This is because
the Constitution is clear on the separate and distinct status of the FCT. It is
treated as any other State in Nigeria.
Consequently, a
community reading of sections 2(2), 3(1)(4), 297, 299, 301 and 302, shows that
the contemplation of the draftsman was indeed to consider FCT as separate and
distinct from any other State in the Federation. It must be borne in mind
that, “Judex est lex loquens”, (i.e, the Judge is the speaking law”).
In other words, the law
is what the courts say it is, and “nothing more pretentious” – Oliver Wendell
Holmes Jr. We must note that, the primary responsibility of the Judiciary is
“jus decere”; and not “jus devere” (to interpret laws and not to make laws). We
are constrained, at this juncture, not to dabble into some jurisprudential
schools of thoughts.
CANONS OF INTERPRETATION VIS-A-VIS THE 25% CONUNDRUM
Let us now examine some
canons of interpretation as they pertain to this analysis.
The primary canon of interpretation of the Constitution is the “literal rule”
as held by the apex court in A.G, ABIA STATE V. A.G FEDERATION (2022) 16 NWLR
(PT. 1856) 205. SEE ALSO N.P.A PLC V. LOTUS PLASTIC LTD. (2005) 19 NWLR (PT.
959)158; GANA V. S.D.P (2019) 11 NWLR (PT. 1684) 510; A.G, LAGOS STATE V. A.G,
ABIA STATE V. A-G FED. (2018) 17 NWLR (PT. 1648) 299 AT 412; MARWA & ORS V.
NYAKO & ORS (2012) LPELR-7837(SC).
Accordingly, where words
are clear and unambiguous, the court must so interpret them without any further
ado; or going outside them. In KASSIM V. SADIKU (2021) 18 NWLR (pt. 1807) 123,
the Supreme Court held that:
“where a statute of the
Constitution or a subsidiary legislation,…prescribes a procedure for seeking
remedy or the doing if anything or act, and the language used is clear and
unambiguous, that is the only procedure open to the parties concerned, and any
departure therefrom will be an exercise in futility. See also INAKOJU V.
ADELEKE (2007) 4 NWLR (PT. 1025) 427; S.B.N LTD V. AJILO (1989) 1 NWLR (pt. 97)
305.
A court is not to go on
a voyage of discovery when words are clear in Statute. See ARAKA V. EGBUE
(2003) 17 NWLR (PT. 848)1; ABACHA V. FRN (2014) 6 NWLR (PT. 1402) 43; KRAUS
THOMPSON ORGANIZATION V. N.I.P.S.S (2004) 17 NWLR (pt. 901) 44.
It is thus trite law that where a provision of a statute is clear and
unambiguous, only its natural meaning, and not any other, is to be given to its
interpretation. See A-G., ABIA STATE V. A-G., FEDERATION (2002) 17 WRN 1;
(2002) 6 NWLR (PT. 763) 264 AT 485 – 486, TEXACO PANAMA INC. V. SHELL P.D.C.N.
LTD. (2002) 14 WRN 121; (2002) 5 NWLR (PT. 759) 209 AT 227 – 228, TASHA V.
U.B.N. PLC. (2003) 36 WRN 64; (2002) 3 NWLR (PT. 753) PAGE 99 AT 106, O.A.U.
ILE-IFE V. R. A. OLIYIDE AND SONS LTD. (2001) 7 NWLR (PT. 712) PAGE 456 AT 473,
AKPAN V. UMALI (2002) 23 WRN 52; (2002) 7 NWLR (Pt.767).
It is only where the
literal interpretation of a section is impossible without doing violence to the
law that the court should start engaging other rules of interpretation. There
is none here.
Happily, the word “AND”
and “EACH” have enjoyed judicial pronouncements with great erudition. In BUHARI
V. INEC (2008) 19 NWLR (PT.1120) 246, the Supreme Court held, per Tobi JSC,:
“The final word I
should examine briefly is the conjunction “and” joining the larger part of the
Subsection with the smaller part of “that the non-compliance did not affect substantially
the result of the election.” The word “and”, being a conjunction, performing
the function of joining two expressions or sentences which could be
inseparable, integrated, joint or matched…” See Ndoma-Egba v. Chukwuogor (2004)
2 S.C. (Pt. I) 107; (2004) 6 NWLR (Pt. 869) 382.”
On the word, “EACH”, on the other hand, the Supreme Court in EYISI & ORS v.
STATE (2000) LPELR-1186(SC), held: “each” means being one of two or more
distinct individuals; each one. See Black’s Law Dictionary (sixth Edition)
where “each” is defined as “a distributive adjective pronoun, which denotes or
refers to every one of the persons or things mentioned; every one or two or
more persons or things, composing the whole, separately considered”. Per
SYLVESTER UMARU ONU, JSC (Pp 15 – 15).
The “Mischief Rule” is
only employed where the old law did not provide for a matter and an
interpretation is to cure or remedy that mischief. See UGWU V. ARARUME (2007)
12 NWLR (PT. 1048) 365; WILSON V. A.G. BENDEL STATE (1985) 1 NWLR (PT. 4) 572;
GLOBAL EXCELLENCE COMMUNICATIONS LTD. V. DUKE (2007) 16 NWLR (PT. 1059) 22,
47-48; AGBAJE V. FASHOLA (SUPRA) @ 1338 C-E; A.G. LAGOS STATE V. A.G. FEDERATION
(2003) 12 NWLR (Pt. 833) 1.
The argument of those
who have misconstrued section 134(2)(b) of the Constitution is to the effect
that the use of the word “ALL” in the first limb of the said provision treats
the Federal Capital Territory, Abuja, as one of the component states of the
Federation.
The proponents of the
view erroneously believe that since the FCT is treated as a State of the
Federation, it means there is no additional requirement to meet the 25%
constitutional requirement therein. They surprisingly find solace in several
decisions of the apex court where the FCT was treated and referred to as a
State of the Federation, including OKOYODE V. FCDA (2005) LPELR-41123(CA) (PP.
7-13 PARAS. A-A). With due respect, these cases actually firm up the FCT,
Abuja, as a separate state that must be accorded every respect and status accorded
the other 36 states.
Thus, section 134(2)(b)
of the Constitution after generally stating all the States of the Federation
where the 25% requirement is a sine qua non for a presidential candidate to be
deemed duly elected, rather than exclude the FCT, Abuja, as one of the States
of the Federation where the 25% is a requirement for a presidential candidate,
went further to specifically use the word “and”, to include the FCT as one of
the States of the Federation where the 25% constitutional requirement is a sine
qua non.
It is settled law that
the use of the word “and” is conjunctive in interpretation of Statutes.
The implication is that after meeting the 25% requirements in 2/3 of the States
of the Federation, the candidate must go further to meet the said 25% requirement
in the FCT, Abuja, before he can be deemed duly elected.
GENERAL AND SPECIFIC PROVISIONS OF A
STATUTE
Assuming, but not
conceding, that the use of the word “ALL” encompasses the FCT, Abuja, as one of
the component States of the Federation, it becomes an issue of whether a
general provision of a statute can override a specific provision in the
statute. The specific mention of the FCT, Abuja, overrides the general mention
of all the other States of the Federation in the said provision. SEKANDE &
ORS V. ARUBIELU & ORS (2013) LPELR-22801(CA) (PP. 22 PARAS. E), it was held
thus:
“The law is that where specific provisions of a statute are subsequent to
general provisions, the specific provisions will prevail. See AKPAN VS. STATE
(1986) 3 NWLR part 27 p.225.” Per DANIEL-KALIO, J.C.A.
In BUHARI V. OBASANJO
(2003) All N.L.R. 168, the apex Court, without, directly deciding on the issue
of “And” used in section 134, held thus:
“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).”
Thus, their Lordships
merely made general statement on the section which has been an enigma. They
recognised that a candidate must score 25% votes in 24 states in Nigeria; “and
the FCT, Abuja”.
It is to be noted that
the 36 states can be collectively called “states” without mentioning their
individual names, just like section 134 did. This is because in all respects,
they share the same characteristics of being states. However, the FCT, Abuja,
differs in character, form and content, from the 36 states. That is why it is
specifically mentioned by name.
CONCLUSION
Section 299 of the CFRN states that the provisions of this Constitution shall
apply to the FCT, Abuja, “AS IF IT WERE ONE OF THE STATES OF THE FEDERATION”.
The careful and indeed, unambiguous, wording of this section suggests that the
FCT is NOT a State, but should rather be treated as if it were one. Thus, in
seeking 25% in 2/3 of ALL THE STATES of the Federation AND the FCT, the
Constitution clearly distinguished the FCT as a separate entity or a special
territory, wherein the Presidential candidate need obtain at least 25% of the
total votes cast in the election.
The reason for this is not far-fetched, as Abuja is the melting pot which
unites all ethnic groups, tribes, religions, backgrounds, and other distinct
qualities and characteristics in our plural society. It is indeed a
conglomerate of the different and distinct peoples in Nigeria, which according
to Prof Onigu Otite, has about 474 ethnic groups; that speak over 350
languages.
Abuja is regarded as the
“Centre of Unity”, which is testament to its inclusiveness of all tribes,
religions, backgrounds and ethnicity. Simply put, Abuja is a territory or land
mass made up of individuals from every State and virtually from all Local
Government Areas in the country.
It is itself made up of
6 Area Councils distinct from the 768 LGCs in Nigeria, thus bringing the total
to 774 LGCs in Nigeria. Therefore, scoring 25% of votes cast in the FCT is a
Presidential candidate’s testament to being widely accepted by majority of the
Nigerian people.
The framers of the
Constitution certainly desired for Nigeria, a President that is widely accepted
with a national spread and not one that has only the support of his tribe or
region. Hence they provided in the Constitution the sections relating to the
election of the President because of our peculiarities as a multi-diverse,
multi-facetted nation.
The provisions contained
in Section 134 of the Constitution are meant to reflect this. In the same
light, the framers of the Constitution viewed the FCT as a melting pot, a sort
of mini-Nigeria. Thus, like a commentator posited, the position or status of
the FCT assumes that of a COMPULSORY question that a presidential candidate
must answer in the electoral examination.
Whilst it is true that a
literal reading of section 299 of the Constitution of the Federal Republic
shows that the Federal Capital Territory is not a State, but from the words,
“as if it were one”, contained in the provision, section 229 actually indeed
grants the FCT benefits accruing to states in Nigeria and ensures its treatment
as such with respect to legislative, judicial and executive powers.
Section 299 does not for
the purpose of section 134 confers on the FCT the status of a subordinate of a
State. The provision – like most in the Constitution – displays the Federal
Capital Territory as distinct from any other state; and as such requires a
Presidential candidate to not only attain 25% (a quarter) of the votes in
two-third of the 36 states in Nigeria but also attain 25% (a quarter) of the
votes in the FCT in order to be duly elected as such.
To me, the only logical
conclusion is that sections 134 and 299 are not mutually exclusive or
contradictory. Rather, section 299 actually supports and complements
section 134.
To show this
distinctiveness, FCT has never conducted any elections, either for
Gubernatorial candidates, or for State Houses of Assembly Members as done by
States. Rather, in accordance with section 301 of the Constitution, the FCT is
governed by the President with an appointed Minister as his proxy in the form
of Minister of the FCT. Likewise, the FCT does not have its own State House of
Assembly, but rather legislates through the National Assembly. This therefore
speaks to its distinct status, which is not affected by section 299.
Whether Abuja is regarded as a full State, pseudo-State, quasi-State, or
semi-State, is immaterial. Even if it is none of these, what matters is the
intention of the Constitution-makers. If, in their wisdom, they decided to
reckon with the votes cast in even a single LGA in Nigeria, along with votes
cast in the 36 States recognized under the 1999 Constitution, for the purpose
of deciding the winner of a Presidential election, then the 6 Area Councils in
the FCT cannot be treated lesser or ignored.
Once that intention can
be deduced from the plain, simple and ordinary grammatical meaning of the WORDS
USED then, as in the present scenario, then they have to be followed. See EZE
v. UNIJOS (2021) 2 NWLR Pt. 1760 pg. 208 SC; KASSIM v. ADESEMOWO (2021) 18 NWLR
Pt. 1807 pg. 67 SC; N.U.P v. INEC (2021) 17 NWLR Pt. 1805 pg. 305 SC; A.P.C v.
E. S. I. E (2021) 16 NWLR Pt 180 pg. 1 SC and AGUMA v. A. P. C (2021) 14 NWLR
Pt. 1796 pg. 351, S.C.
There can be no room to
resort to other aids of interpretation which only become necessary and resorted
to in the event of ambiguity in the words used in the Statutes. I respectfully
submit that none exists in the provisions of section 134(2)(b).
Asiwaju Bola Ahmed
Tinubu having not met the 25% votes threshold in the FCT, Abuja, was definitely
not qualified to have been declared President-elect by INEC.
Thus, INEC ought not to have declared Tinubu as the winner of the 2023
Presidential election. Doing so Nicodemously, especially as it did in the wee
hours of the morning of 1st March, 2023, when innocent Nigerians were fast
asleep, puts a bigger question mark on the integrity and credibility of the
said declaration.
Presenting Tinubu with a
Certificate of Return, was, I humbly submit, odious and putrid. Tinubu
therefore carries with him and on his neck, a very heavy moral burden in the
form of an albatross.
Governing a country of
219.7 million people (as at 3rd March, 2023), goes well beyond mere legal
calisthenics. It borders more on the process’ credibility, acceptability,
legitimacy and the high moral grounds of the candidate.
The current eerie, and mournful mood in Nigeria, without any form of celebration or jubilation, represents nothing but peace of the graveyard. It is ominous and foreboding. It requires no violent street protests, demonstrations, barricades, rallies, pamphleteering or leafleteering. It is a loud silence. I so humbly submit.
Note: This article is entirely the opinion of the writer and does not represent the views of Tdpnewsng.com
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