‘The oppositions have made it acrimonious that the Independent National Electoral Commission (INEC) declared the All Progressives Congress’s candidate, Sen. Ahmed Bola Tinubu, elected president, where he failed to score at least 25% votes in the FCT citing the constitutional provision that a candidate shall be duly elected as president where 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’
By Gavers C. Ihematulam
The importance of Sections 134 (2)b, 299, and 179(1)b & (2)b of the 1999 Constitution of the Federal Republic of Nigeria in resolving the question of need for a candidate to score a minimum of 25% votes of the FCT Abuja in the First Ballot of the Presidential Election to be declared duly elected.
The Federal Capital Territory, Abuja (FCT) is presently the capital of the federation and seat of the Government of the Federation Nigeria. See Section 298 of the 1999 Constitution.
The Federation is presently made up of the 36 states and a Federal Capital Territory. The states make up the 2nd tier of the Federation together with their Local Government Areas (LGAs) are listed under Part 1 of the First Schedule to the 1999 Constitution, while the FCT – the Seat and territory of the 1st tier of the Federation – with its Area Councils distinctly listed under Part 2 of the First Schedule to the Constitution.
There is no mention of the FCT under Section 3(1) of the Constitution listing the 36 states and second tier of the Federation.
The oppositions have made it acrimonious that the Independent National Electoral Commission (INEC) declared the All Progressives Congress’s candidate, Sen. Ahmed Bola Tinubu, elected president, where he failed to score at least 25% votes in the FCT citing the constitutional provision that a candidate shall be duly elected as president where 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. See Section 134(2)b of the Constitution.
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The prominent questions around the discuss include;
whether in view of the use of the conjunctive word, “and” the FCT…, the legislature intends that 25% vote of the FCT is not mandatory for one to be declared as duly elected the President of the Federal Republic of Nigerian in first ballot of any Presidential Election in Nigeria; and
whether in view of the provision of Section 299 of the 1999 Constitution, a not Presidential Candidate in Nigeria needs mandatorily score 25% minimum votes of the FCT in the First Ballot of the Presidential Election to be Declared Duly Elected.
The first question bothers on whether or not the minimum of 25% votes of the FCT is sacrosanct considering the use of the mandatory word ” Shall” and the conjunctive word “AND” See the meaning of ‘AND’ in the BUHARI v. INEC(2008) 19 NWLR (PT.1120) 246 where, the Supreme Court per Tobi JSC, held thus in respect of the word “AND”.
“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)”.
The Second school of contenders thought that the Constitution has not made the FCT to be superior to other states, citing judicial authorities in support of the contention including the cases of…Ibori v. Ogboru (2005)6 NWLR (Pt.920) 102 at 137-138 (CA), Bakari v Ogundipe & 3 Ors. (2021) 5 NWLR (Pt. 1768) 1 at 37 (SC) and case of Panya v President, FRN & Ors 2018 LPELR-44573 CA.
All the cases are all authorities to what they decide as the questions about the status of the FCT were decided in different circumstances where the effect of Sections 299 on 134 (2) were not presented to the Courts in any of the cases, hence we seek to express a different view about the subject matter.
Section 134.-(1) of the Constitution provides thus:
(1) A candidate for an election to the office of President shall be deemed to have 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 States in the Federation and the Federal Capital Territory, Abuja.
By Section 299 of the Constitution, the provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the State 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 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.
179.-(1) A candidate or an election to the office of Governor of where, being the only candidate nominated for the election-
(a) he has a majority of YES votes over NO 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 local government areas in the State, but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations,
(2) 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.(underlining added)
However, the constitutional provision of section 299 treating the President as a Governor of the FCT does not derogate from the discretion of the president to establish offices of Ministers (including Minister of FCT) in the Federation and appointing Ministers under Section 147(1) &(2) of the constitution.
Now, treating the FCT as a state with the President as the Governor (the person on whom the executive powers is vest in FCT) as provided for in Section 299 of the Constitution, what would be the constitutional requirement for election of the FCT Governor in the First Ballot if Section 299 of the Constitution were to apply in the construction of Section 134(2)b of the same Constitution in determining whether or not a Presidential Candidate credited with the overall highest number of votes must mandatorily score 25% of the FCT votes to be duly elected President in the 1st Ballot.
To solve the puzzle we simply ask the question:
What fraction or percentage of votes must a Governorship candidate, credited to with the highest number of valid votes, scores from the Local Governments in a State to be duly elected?
We simply go to Section. 179 (1) b & (2)b of the constitution for the answer in order to apply the provisions of the Constitution to FCT as if it where a State of the Federation.. It is most reasonable to submit that the Section clearly applies to a person to occupy the position of the Head of Executive Arm of Government of a state to score at least 25% of the votes in the first ballot to qualify to be declared duly elected.
Under the constitution, Section 134 (2) 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.(underlining added) .
It is thus clear that the constitution provides the grund electoral norm treating the FCT as a State in the aspect of the minimum percentage or fraction the result requires a candidate becoming the Governor of FCT (the person on whom the executive powers is vest in FCT) in the first ballot to score 25% of the FCT votes as if is one of the States of the Federation.
Since the constitution cannot be seen or interpreted to be in conflict with itself. This is a legal revelation supporting and re-enforcing the position that only clear intendment of Sections 134 is that it would be unconstitutional to elect a candidate president and Governor of FCT where the person declared elected has fallen short of scoring 25% of the FCT votes in a first ballot, this position is clear from a community reading of SS 134, 299 and 179 of Constitution.
Finally, the opinion expressed herein is supported by the fact that Nigeria as Federation presupposes there are Federating units, the Federal Government with the FCT, Abuja of a definite territory and its electorates under the Governorship of the President, and the States with LGAs and their electorates under the executive powers of the various states Governors.
It is thus reasonable of the legislature to intend that a, candidate scores at least 25% of the votes of the only Territory owned by the First tier of the Federation in addition to securing 25% at least from the Second tier of the Federation.
This view point of the constitutional provision re-enforces the description of Nigeria as a Federation under Section 2 (2) of the Constitution of the Federal Republic of Nigeria 1999.
. Ihematulam, a barrister, writes from Lord of Justice Chambers, Abuja.
