You come online and you have lawyers and non-lawyers giving interpretation to the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) – something that is clearly the responsibility of the Judiciary and no one else.
Before I continue, let me tell you a story. A true-life story that some Nigerians witnessed, others must have heard of it from their parents, the likes of the writer heard from our government teachers, and others simply never heard of it.
It is the story of the 1979 general elections, which had as its major contestants, Shehu Shagari, Obafemi Awolowo and Nnamdi Azikiwe. At that time, Nigeria had just 19 states, and the 1979 Nigerian constitution provided that in order to be president, a candidate had to have 25% of the votes cast of two-third of the States of the Federation. The question then was what was 2/3 of 19 states? Exactly. 19 is an odd number, so you would have 12.66 or better still 12 2/3. Shagari had 25% of the 12 states, and about 19% of Kano state. Obafemi Awolowo was of the opinion that Shagari had not satisfied the requirement of 25% of two-third of the 19 states. This was a big problem that the Supreme Court had to look into.
From that time onwards, more states have been created, and the last was in 1991 which led Nigeria to having 36 states. Two-third of 36 would be 24. Easy? We are not sure anymore.
The issue now is the interpretation of section 134 (2) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria. To me, this is not the bigger issue, it is just one that you have decided to dwell your mind on. Not that I intend to bore you, but allow me to write out the said provision.
- He has the highest number of votes cast at the elections; AND
- 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.
I strongly believe that it was the problem of the 1979 general elections that the draftsmen of the 1999 constitution tried to solve.
The exact wordings of section 126 (2) (a) (b) of the 1979 Constitution reads as follows
- He has the highest number of votes cast at the election
- He has not less than one-quarter of at least two-thirds of all the States in the Federation
NOTE: “There is no “AND the Federal Capital Territory”. The question is why?
Definitely there was there was a capital territory at that time. Why then did the drafters of the 1999 Constitution add “AND the Federal Capital Territory”? I argue that the addition was intentional and purposeful.
There is the other argument that by virtue of section 299 of the constitution, the FCT should be treated as a state. So, if a candidate gets 25% of 25 states (even if not in the FCT), he then meets the mark. The said section 299 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; …”
To many, this means that the FCT is included in the two-third of the states of the Federation as stated in section 134 of the Constitution. I beg to differ. The FCT is not a state, and the constitution recognizes that fact. In fact, a whole chapter (Chapter VIII) was dedicated to it. This chapter talks about how the Federal Capital Territory is to be administered. Its judiciary, its own Minister etc. That is even why section 299 clearly said it should be treated “as IF it were one of the States”, because it is not a state of the Federation. Mind you, if you believe that the FCT should be included in the two-third of the States of the Federation, that would imply two-third of 37 states. That would mean that we are back to the problem of 1979. This is because two-third of 37 would be difficult. Just so you know, the Justices of the Supreme Court at that time, had said that no one should refer to the case. The judgment they gave was simply a child of necessity.
So, when the draftsmen of the Constitution added the sentence “AND the Federal Capital Territory”, they knew what they were doing. I strongly believe that the draftsmen of this section had something in mind. What the something is, that I do not know. However, I do know that the word “AND” is a conjunctive and means that that item after the word “and” is standing on its own. If the drafters didn’t want FCT standing on its own, they would have used word, “INCLUDING”, definitely not “AND”.
I submit that the winner of the election must not only have the highest number of votes cast, and 25% of two-third of the 36 states of Nigeria, but also have 25% of the votes cast in the Federal Capital Territory, which is not a state of the Federation. Now, this is my opinion and it is of course subject to the interpretation my Lords, the Justices of the Supreme Court.
There is a bigger problem. I do not know why Nigerians are not looking at the bigger problem. This is it, section 134 (4) clearly states what should be done should none of the candidates be duly elected in accordance with section 134(2) (a) (b). In fact, the fact that there is a solution/an alternative goes further to prove my point that the drafters envisaged a problem with this percentage of a thing.
The solution as provided in section 134(4) is as follows.
- There shall be a second election within 21 day of the result of the first election, between TWO candidates. Only two. How does INEC determine who these “TWO” candidates should be?
- Section 134 (3) (a) says, that INEC would first pick the candidate with the highest number of votes. Now the problem is the picking of the second candidate. Section 134 (b) says that INEC is to pick one among the remaining candidates who has a majority votes in the highest number of States. I hope I can interpret this without boring you. It means that after the person with the highest vote cast has been picked as one of the candidates for the second election, INEC would have to choose the candidates among the rest that has majority of votes in the highest number of States. You want to know the truth, I am as confused as you. LOL.
This is where the real problem is. The interpretation of that sub-section is something else. My best is, the second candidate might not be the person with majority of votes, but with majority votes in the highest number of States. This means, if you have 500,000 votes from 9 states, and another has 450,000 from 12 states, the latter would be picked. To me, this is the problem, not the argument of the 25% of the FCT.
It is best to watch and see how this turns out.
Well put together argument as usual 👏.
Brilliant piece! 👋👋👋👋👋
THIS IS WORTHY OF COMMENDATION..
BUT I SHOULD KEY IN TO THE MOST RECENT STATEMENT OF THE “L.P” PRESIDENTIAL CANDIDATE OF WHICH HE REFERED TO THE COUNTRY AS A “DEVELOPING NATION”
This is such an interesting read, we await the decision of INEC and theat of the Judiciary, if and when the matter gets to them
Wow thank you for making this so clear!
Priscilla, this is so convincing and well put together. I must applaud you for this compelling read. However I beg to differ. Like I told you earlier, I am still of the opinion that FCT should be regarded as a state for this purpose. To do otherwise will mean that; even if a candidate wins 30 states and gets less than 2/3 votes in FCT itself, such candidate could not be said to have won the election. My interpretation of Section 134 (2) is that.. for a candidate to win, he/she must get at least 1/4 of the total votes cast in at least 2/3 of the states (which could roughly be 25 states) with or without the FCT. As for section 134(4), I am as stumped as you are.
Let’s see how it turns out and learn together though.
Cheers 🤝👍
Hello Andrew,
Thank you so much.
I clearly understand your point.
The draftsmen gave us a big issue, especially section 134(4). LOL
Much more clearer now.
Wonderful analysis as usual my learned friend. However, I cannot agree completely because you are using the “Literal rule of interpretation” were words are be given their ordinary, plain, and natural meaning. Stricto sensu, If we read section 134 (2)(b) as is, then it may lead to absurdities. I will mention just a few that come off the cuff of my mind.
Firstly, the FCT may have a specific political leaning that favors a peculiar party. This can contribute to a candidate of a party winning the entire 36 states in Nigeria but because they did not get FCT, such candidate cannot be declared President. A variety of factors may deny a candidate winning in FCT such as the political climate, the incumbent’s popularity, and the strength of the opposition. So it will be absurd to force the FCT down
Second, It will give the FCT undue priority over other States. If it is not necessary to win 25% in Borno or Enugu then why FCT? If that was the case, the drafters of the constitution would have given an “electoral indication” why the FCT has such status. But they did not.
Finally, voting patterns in Nigeria show certain sentiments for voting such as tribal or religious (maybe even age these days). Would it be fair on a certain candidate who falls within a certain demography?
The “Golden rule of interpretation” allows the courts to depart from the literal meaning of a statute in cases where the literal interpretation would lead to absurd or unjust outcomes. Instead, the courts can interpret the statute in a way that gives effect to the intention of the legislature, while still remaining within the bounds of the language used in the statute.
So if we go by that literal rule, all we’d have is migration of election riggers to FCT. By the way 25% in FCT is a small feat for them. Priscilla please we want peace of mind here in FCT oooo.
We must be careful about the words the “mind of the draftsmen”. Rather we should use “legislative intent behind the statute”, which explains itself in other parts of such statute. It is like trying to explain the Bible outside of the Bible which is why we have so many false prophets and error in bible teaching today.
In the present circumstances I personally wish for your interpretation but unfortunately I have to speak like a Lawyer *tears**
My boss.
Thank you so much for this. Definitely another angle to the argument.
I am of the believe that when it comes to interpretation of a statue(law), the literal rule comes first. It is when the literal rule is ambiguous that the Courts use the golden rule. Maybe. this is one of the circumstances the Court might fall back to the “Golden Rule”