Does the FCT have Special Status with Regards to Presidential Elections in Nigeria – The 25% Win Argument And Qualification to become President?
Since the conclusion of the 2023 general elections particularly the presidential election culminating in the declaration of the candidate of the ruling APC as the president-elect (thus, the successful candidate at the polls), social and traditional media has been rife with opinions (most, pretentiously legal) offering interpretation to Section 134(2) CFRN 1999 as amended.
For the avoidance of doubt as well as ease of reference, it is necessary to reproduce verbatim the now controversial constitutional provision herein as follows: Section 134(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.
For the purpose of clarity and context, it is apposite to reference some salient provisions of the Constitution at this juncture. Section 2(2) states, “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.†Section 3 CFRN 1999 goes ahead to list the 36 states of the federation as well as the FCT and particular attention ought to be paid to subsection (6) thereof. In addition, Section 299 of the Constitution stipulates that the FCT shall be treated as a state of the federation.
In arguing that a candidate must win 25% votes specifically in the FCT to be declared president, the “legal analysts†rely heavily on the Supreme Court decision in Buhari & Anor. v. Obasanjo & Ors. (2005) 2 NWLR (Pt. 910) 241. It is noteworthy from an unemotional and impartial perusal of the decision that interpretation of Section 134 of the Constitution flowed as an obiter before the tribunal and remained an obiter before the Apex Court. Furthermore, the issue before the Court had nothing to do with the FCT but instead, was with respect to the first leg of the provision to wit: winning at least two-thirds of all the States in the Federation!
In the aforementioned case, election conducted in Ogun State was voided by the tribunal and the Petitioners argued that the 1st Respondent therefore did not meet the requirements of the Constitution to be elected president because, he failed to win at least two-thirds votes in ALL THE STATES OF THE FEDERATION. The Supreme Court rightly found that it would be ludicrous and unreasonable to cancel elections held across 36 States and the FCT because, elections in one state was voided. In other words, even though the constitutional provision states that a candidate must win in ALL States in the Federation and the FCT, the Apex Court reasoned and interpreted this to mean that elections not holding in one or two States shall be insufficient to invalidate the entire electoral process.
The reasoning of the Apex Court is valid and firmly rooted in logic. Take for example, INEC budgeted a whooping sum of over NGN 300 billion (Three Hundred Billion Naira) towards conducting the 2023 general elections and by the argument of some commentators, the entire nationwide elections ought to be cancelled unless the candidate that polled the majority votes also secured the most votes in the FCT. This absurd interpretation of the provision by some persons appear to vest special status on the FCT while ignoring the fact that Nigeria can only be described as a federation comprising 36 States and the FCT (see, Section 2(2) of the Constitution above)!
It is therefore safe to conclude that the argument that a candidate must poll the highest votes in the FCT to be declared winner may either be borne out of mischief or otherwise, ignorance as same offends logic as well as commonsense. A candidate need not poll the majority of votes cast specifically in the FCT to be declared president as by virtue to the provisions of Section 299 of the same Constitution, the FCT is like any other State in the Federation.
Wisdom flows from the words of the Court of Appeal in the case of Audu Abudu Ganiyu v. Kadiri Sunday Oshoakpemhe (2021) when the court said, "The law on disqualification of a citizen from contesting for elecive office as stipulated in the Constitution of Nigeria 1999 (as amended) and in the Electoral Act 2010 (as amended) is not about mere discrepancies but of substance in relation to the qualification, age and integrity of the person intending to vie for elective offices in Nigeria. It ought not, should not and need not be rubbished and reduced to mere shenanigans and sensationalism and drawn to its most elastic limits to apply to all manner of agitations against the candidacy of a citizen not related to any substance as required by law. The Courts must be cautious not to allow parties to open new vistas and uncharted territories not in the least contemplated by the succinct provisions of the Constitution of Nigeria 1999 (as amended) and/or the Electoral Act 2010 (as amended) which if allowed to fester could spell doom for our nascent democracy."
Follow the author, AA Ibironke, Esq. on Twitter @SirMcAwesome247
