By Ikechukwu Nnaemeka Esq.

The Presidential elections in Nigeria were conducted on 25th February 2023, and in the results announced by the Independent National Electoral Commission, INEC, Mr Bola Tinubu, of the All Progressives Congress, scored the highest number of votes cast, and also obtained at least 25 percent of the votes cast in 30 states. However, he only obtained 18 percent of the votes cast in the Federal Capital Territory, Abuja (FCT). The question therefore arose if Tinubu had indeed satisfied the spread requirement contained in Section 134(2)(b) of the Constitution to be returned as the president-elect of Nigeria. Section 134 (2) of the 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-

  1. he has the highest number of votes cast at the election; and
  1. 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.

A school of thought believes that Mr Tinubu had not satisfied the spread requirement under Section 134(2)(b) of the Constitution. They argue that the correct construction of the provision of Section 134(2)(b) of the Constitution, requires the president-elect to, not only to obtain at least 25 percent of the votes cast in the election in each of at least 24 states of the federation, but also obtain 25 percent of the votes cast in the election in the FCT. Given that Mr Tinubu did not get up to 25 percent of the votes cast in the FCT, they argued that he had not satisfied the spread requirement under section 134(2)(b) of the Constitution to be returned as the president-elect.

A second school of thought opined that Mr Tinubu had more than satisfied the requirement of Section 134(2)(b) of the Constitution, having obtained at least 25 percent of the votes cast in 30 states of the federation. They argue that the inclusion of the FCT in Section 134(2)(b) of the Constitution only meant that the winner was required to obtain at least 25 percent of the votes cast in at least 24.66 states of the federation, with the FCT regarded as a 37th state. The proponents of this stance also argue that Section 299 of the Constitution, which 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 – is in support of their line of argument.

One thing is clear. The wording of Section 134(2)(b) of the Constitution is not exact as it appears to admit of more than one interpretation. If the draftsmen of the Constitution intended that the requirement of obtaining 25 percent of the votes cast in the election in the FCT should be regarded as distinct from the requirement of 25 percent of the votes cast in the election in the 24 states of the federation, they could have worded the sentence more precisely, such as:-

“A candidate for an election to the office of President shall be deemed to have been duly elected 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 not less than one-quarter of the votes cast in the Federal Capital Territory, Abuja.”

On the other hand, if the draftsmen had intended that the FCT should be regarded as a 37th state for the purposes of determining what the spread requirement would be under Section 134(2)(b) of the Constitution, they could have worded that provision in a clearer manner such as:-

“A candidate for an election to the office of President shall be deemed to have been duly elected 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 including the Federal Capital Territory, Abuja, which would be regarded as a 37th state of the federation.”

In the absence of precision, it leaves room to several interest driven construction of section 134(2)(b) of the Constitution.

One-quarter of the Votes Cast at the Election in the FCT

It is settled that the most reliable rule of interpretation used in the construction of statutes is the literal rule of interpretation. In NWOBIKE v. FRN (2021) LPELR-56670(SC), per Helen Moronkeji Ogunwumiju, JSC (Pp 66 – 67 Paras D – A), the Supreme Court stated the reason behind this fact when it held that:

“The literal rule of interpretation is the oldest rule & is followed by Judges all over the world. The rationale behind the Literal Rule is that it prevents Courts from making biased decisions when the issue relates to sensitive and political matters by sticking to the dictionary meaning without discretion (without expansion or contraction) of the very words used in the statute. Thus, when the words of the statute are very clear, plain and unambiguous without equivocation, then the Courts are bound to give effect to that meaning irrespective of the consequences.” 

The persons who hold the position that 25% of the votes cast at the election in the FCT is mandatory, argue that they rely on a literal interpretation of the sentence in Section 134(2)(b) of the Constitution.

Section 134(2)(b) of the 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-

  1. …………………
  1. 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.

Apart from the underlined words above (each & and), the other words used in the paragraph are clear.

To understand the literal interpretation of “each”, the decision of the Supreme Court in EYISI & ORS v. STATE (2000) LPELR-1186 (SC), per Sylvester Umaru Onu, JSC (Pp 15 – 15 Paras E – G). is helpful. In this case, the Supreme Court defined the word “each” when used in a piece of legislation as follows:-

“ “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.” 

While “and” was defined in Dasuki v DSS (2019) LPELR-48113(CA) to mean:-

“In ordinary usage, the word “and” is a conjunctive. Black’s Law Dictionary 6th Edition, described the word “and” as “A conjunction connecting words or phrase expressing the idea that the latter is to be added to or taken along with the first. Added to; together with, joined with, as well as, including”.

The import of the literal meaning of the words “each” & “and”, when extrapolated to the provision of Section 134(2)(b) of the Constitution, suggests that the requirement of 25 percent of the votes cast at the election refers to “States of the Federation” as well as the “Federal Capital Territory, Abuja”, both of which were mentioned, being “separately considered”. The FCT is not a state, given that “States of the Federation”, as defined in part 1 of the first schedule of the Constitution, does not include the Federal Capital Territory, Abuja. This seems to support the assertion that the FCT is distinct from the states of the federation and as such should be separately considered in determining the spread requirement of 25% of the votes cast in the election.

The History and Peculiarity of the FCT

The history of the FCT makes it abundantly clear that FCT is already a special territory. It is not like any state of the federation. The creation of the FCT was borne out of a deliberate search for a suitable location that would serve as a Federal Capital Territory of the Country and the seat of power considering that the erstwhile Federal Capital Territory in Lagos had become overpopulated and the Yoruba ethnic group rightly lays claim to its ownership.

A committee was set up and they settled for a location which is geographically at the Centre of Nigeria, and at the same time did not belong to any major ethnic group of Nigeria. The FCT was created with a vision of being a place which would become a melting pot for all tribes in Nigeria, and which all Nigerians can equally lay claim to by virtue only of their nationality. Simply put, a centre of unity. General Murtala Mohammed in 1976, while announcing the creation of the FCT, Abuja, made the following statement:-

“The area is not within the control of any of the major ethnic groups in the country. We believe that the new capital created on such virgin lands, as suggested, will be for all Nigerians a symbol of their oneness and unity. The Federal Territory will belong to all Nigerians.”

Abuja is the only territory in Nigeria which does not have indigenous land ownership. Rather, by virtue of Section 297(2) of the Constitution of Nigeria, and Section 1(3) of the Federal Capital Territory Act, ownership of all lands comprised in the FCT, is vested in the Government of the Federal Republic of Nigeria. Considering that the FCT is ethnically neutral and a melting pot of all Nigerians, any person who has already legitimately obtained 25% of the votes cast in each of at least 24 states of the federation should really have no problem whatsoever in getting the support of at least 25 percent of the votes cast in the FCT being the melting pot of all residents of all other states who are thought to be evenly represented in the FCT. In fact it might even be argued that the requirement of the 25% votes in the FCT is a fail safe clause to test the true acceptability of a candidate who may have used dishonest or even criminal means of obtaining majority of the votes in other states of the federation. This is because the FCT, as the seat of power in Nigeria, is better policed and secured, and as such better suited to repel incidents of electoral malpractices that may be rife in other places in the states of the federation.

It is also a fact that the FCT does not have an elected executive governor. Rather, the entire executive powers over the FCT is constitutionally vested in the president and his cabinet. The executive powers are then exercised indirectly by the elected President appointing a minister of FCT who serves at his pleasure and is considered as part of the federal government’s cabinet. See Sections 301(a) and 302 of the Constitution. Some residents of the FCT have instituted an action at the high court of the FCT demanding, amongst other things, for the FCT to have a governor elected by its residents. The suit (FCT/HC/CV/85/2023) was filed on the basis that it is a breach of the FCT residents’ constitutional right to human dignity that they do not have a say on who administers executive powers over the FCT. One would think that going as far as holding that even 25% of the electorates of the FCT who cast their votes, do not need to have a say as to who becomes the president of Nigeria, and by extension have no input whatsoever, even indirectly, on the person who administers executive powers over them, is not in keeping with the spirit of the Constitution and contrary to the basic tenets of democracy.

Since 1999, all the presidential candidates who have gone on to become president of Nigeria, have always got more than 25% of the votes cast in Abuja. In fact, other than President Buhari, who got 47.7% and 35.9% of the votes cast in the election in the FCT in 2015 and 2019, respectively, the other presidential candidates scored the highest number of votes cast in the FCT. Chief Olusegun Obasanjo obtained majority of the votes cast in the election in the FCT by scoring 59.8% and 49.9% of the votes cast in the election in the FCT in 1999 and 2003 respectively, while Dr. Goodluck Jonathan also obtained the highest number of votes cast in the election in the FCT by scoring 63.66% in 2011.

Awolowo v Shagari, and the aftermath of the decision of the Supreme Court.

During the 1979 presidential elections, there were 19 states of the federation. The spread requirement for the winner of the election at the first round of voting was 25 percent of the votes cast in the election in each of at least two-thirds of all the states of the federation. Alhaji Shehu Shagari, who was declared the winner by the electoral umpire, obtained the highest number of votes cast. However, he only obtained 25 percent of the votes cast in 12 of the 19 states of the federation. In the 13th state (Kano), he obtained less than 25 percent of the votes cast. The runner-up in the election, Chief Obafemi Awolowo, petitioned the election tribunal to set aside the declaration. Chief Awolowo argued that Alhaji Shagari had not met the spread requirement of the 1979 Constitution as two-thirds of 19 states should be considered as 13, and not 12 2/3 as argued by Alhaji Shagari. The basis of his petition was that, from the wording of the provision of the Constitution regarding the spread required of the winner of the presidential election, a state could not be fractionalised.

The lead judgment of the Supreme Court in Awolowo v Shagari (1979) All N.L.R. 105, delivered by Justice Fatai-Williams agreed with Alhaji Shagari and held that two-thirds of 19 states of the federation is 12 2/3, and as such, all Alhaji Shagari was required to obtain in the 13th state was one quarter of two-thirds of the votes cast there, i.e. one-sixth of the total votes cast in Kano state. It was not a popular decision. More importantly, It was not a unanimous decision. In fact Justices Obaseki and Kayode Eso disagreed with the lead judgment and insisted that in the context of the relevant provision of the Constitution, the correct interpretation of two-thirds of the 19 states of the federation is 13 states and, as such, Alhaji Shagari had not met the spread requirement of the 1979 Constitution.

The decision of the Supreme Court and the related facts as set out above are useful here because the Courts, in interpreting the law, are expected to take into cognisance the previous state of the law. The Courts, in effect, is required to take judicial notice of the result of lack of precision in the Constitution regarding the spread requirement and the fact that it resulted in ambiguity, which is an incentive for future draftsmen of the Constitution to avoid repeating the same mistake. Lord Denning, in Escoigne Properties Ltd. Inland Revenue Commissioners (1958) AC 549 at 565 explains this point better when he said:-

“All that the courts can do is to take judicial notice of the previous state of the law and of other matters generally known to well informed people.”

History is the best teacher, and it would seem that subsequent military Heads of state in Nigeria had applied the lessons of the legal tussle in the aftermath of the 1979 presidential elections in its future actions. Hence when Katsina and Akwa Ibom states were created subsequently in 1987, it brought the number of states to 21 states which is a multiple of 3. Hence the question of what amounts to two-thirds of 21 states would not be a problem given that 21 is a multiple of 3 and as such, two-thirds of 21 would result in 7 – a whole number. Likewise in 1991, and 1996 when 9 and 6 additional states were created respectively, bringing the total to 36 states, again the number of the states of the federation at each time were always a multiple of 3.

Excerpts from the Constituent Assembly debates, which were a prelude to the Constitution of the Federal Republic of Nigeria (Promulgation) Decree 1989 Constitution (which was not implemented), showed that legislative draftsmen of the Constitution took notice of the case of Awolowo v Shagari, and intended to avoid the uncertainty resultant from the confusion which ensued after the 1979 presidential election with regards to determining the minimum spread requirement. At page 5, paragraph 16 of No. 17 of the Official Report of Proceedings of the Constituent Assembly dated 7th July 1988, the debate on the proposed amendment of the clause on the spread requirement of the 1979 Constitution was presented as follows:-

“Then we go to Clause 135. This section deals with the computation of fractions in certain cases. For the benefit of those who do not have their Draft with them, I would like to read some of those important sections. It reads : For the purposes of Sections 133 (b), 134 (1) (b), where the computation of two-thirds of all the States of the Federation or one quarter of the votes cast in a state, as the case may be, results in a fraction, the figure obtained shall be rounded up to the next higher whole number. Of course, you all know the reason for this. It is for the famous case of Awolowo versus Shagari.”

This provision was eventually included in Section 133 of the 1989 Constitution. It therefore appears inconceivable that the draftsmen of the Constitution in 1999, would not have learnt from the case of Awolowo v Shagari and as such clearly defined what amounted to two thirds of 37 states if it intended that the FCT is to be considered merely as a 37th state for the purpose of computation of the spread requirement, given that 37 is not a multiple of 3. It may be argued that the draftsmen of Section 134(2)(b) of the 1999 Constitution did not do so because they assumed it was clear enough that the intention was to distinguish between the states of the federation and the FCT and that the spread requirement of 25 percent of the votes cast in the election in at least two thirds of the federation must be met as well as 25 percent of the votes cast in the election in the FCT.

Section 299 of the Constitution is not applicable to Section 134(2)(b) of the Constitution

The proponents of the position that Section 134(2)(b) of the Constitution does not mean that the president-elect would require 25 percent of the total votes cast in the election in the FCT refer to the introduction to Section 299 of the Constitution for support for their argument that the FCT is to be regarded as a 37th state of the federation and no more. For ease of reference, the first part only of Section 299 of the Constitution provides 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;”

Looking at this provision in isolation, it may appear to support the argument that the FCT should be regarded as a 37th state under Section 134(2)(b) of the Constitution and no more. However another angle to this stance is that if truly section 299 of the Constitution is relevant to section 134(2)(b) of the Constitution, then it would have been superfluous to mention the FCT in section 134(2)(b) of the Constitution, as it would have been understood that “states of the federation” would include the FCT. Hence, the fact that the FCT was specifically mentioned outside the states of the federation in section 134(2)(b) of the Constitution means that it was given a special status as the territory where 25 percent of the votes cast in the election must be obtained.

On a holistic appraisal of the Constitution, it appears that Section 299 is not relevant to the construction of section 134(2)(b) of the Constitution. This is because it is a basic principle of interpretation that in order find the correct meaning of a provision of Constitution, the specific provision must be read and considered holistically with other relevant provisions of the Constitution and not just in isolation. In other to aid a proper and holistic understanding of Section 299 of the Constitution, Section 3(5) of the Constitution is relevant and it provides as follows:-

“The provisions of this Constitution in Part I of Chapter VIII hereof shall, in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.”

What Section 3(5) of the Constitution clearly explains is that the provisions of Part 1 of Chapter VIII of the Constitution (which includes section 299 of the Constitution), does not have a general application throughout the Constitution. Rather, the provisions therein, such as Section 299, only have a limited application to the FCT in the specific items set out under that Part (Part 1 of Chapter VIII) of the Constitution.

This is even clearer when the full provisions of Section 299 of the Constitution is considered. Again for ease of reference, the provisions of Section 299 (a) & (b) are set out below :-

“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

  1. 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;
  1. all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution;”

The specific items which section 299 of the Constitution refer to are the legislative, executive and judicial powers of the FCT in the manner specifically set out under section 299 (a) of the Constitution. Section 299 (c) of the Constitution, in going a step further to show that the provisions of Section 299 is not of general application through out the Constitution but are limited to the matters contained in Section 299 (c) of the Constitution, states as follows:-

  1. 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.

An ancillary argument made to support the stance that the FCT is to be regarded as a 37th state of the federation and no more, is that of the supposed absurdity in giving the FCT a veto status over the states of the federation. The argument here is that if Section 134(2)(b) is interpreted to mean that 25% of the votes cast in the election in the FCT is a mandatory requirement for the winner of the presidential election, it would amount to the absurd situation of giving the FCT a special veto status over the decision of residents of all other states who are obviously in the majority and may have decided to support a candidate who may not be popular in the FCT.

The above line of argument is weak. First of all, the FCT already has a special status as the federal capital territory, as well as the history and purpose behind its creation. Secondly, the above line of argument appears to indirectly challenge the reasonableness of the entire provision of Section 134(2)(b) of the Constitution which demands that for a person to become president of Nigeria at the first round of the presidential election, he should not only have majority of the total votes cast at the election, but should also get a fairly equal spread of acceptability in the entire federation. This is because the a person who scored the majority of the votes cast in the election must have also got a fairly equal amount of spread in a large number of states. The question of whether such a presidential candidate met the spread requirement is usually down to a few states. In Awolowo v Shagari it was down to one state – Kano State, which could have ostensibly vetoed the decision of the other 12 states of the federation.

The argument advanced by Alhaji Shagari and his party was not that the requirement of the spread should be jettisoned because it is just one state, and that upholding the spread requirement of the Constitution would amount to giving that one state a veto power over the wishes of majority of the entire federation expressed by the residents of the other 12 states. Rather they strove to show that they had complied with the entire requirement of the Constitution for the return of Alhaji Shagari as the president-elect. The Supreme Court equally did not base its decision on the supposed absurdity of one state vetoing the decisions of the other 12 states, rather it based its decision on what it thought was the correct interpretation of the letter of the Constitution, absurd or not.

The simple answer is that the Constitution is supreme and its provisions are sacrosanct, and if it gives the FCT a veto power over the states of the federation for the purposes of determining compliance with the spread requirement under section 134(2)(b) of the Constitution, so be it.

Ikechukwu Nnaemeka is a Legal Practitioner based in Lagos, and can be reached on hnikechukwu@gmail.com.

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