By Deji Jayeoba
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Maybe there’re some persuasive arguments in support of the opinion that a Nigerian presidential election winner must not only win 25% of valid votes cast in at least 24 States of the Federation, but must also win similar percentage in the Federal Capital Territory, Abuja (FCT). I however think, Chief Mike Ozekhome, SAN’s piece on the matter may not make it to such an elite group.
With a history of glowing contributions to national debates, Chief Ozekhome sought to assist Nigerians in understanding the meaning of subsection 134(2)(b) of the 1999 Constitution of Nigeria in his piece. The subsection contains the following 61 words:
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. … … …
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.
Chief argued that Section 134(2)(b) of the Constitution means only one thing: a candidate must have “25% (of votes) in 24 States; and 25% in the FCT, Abuja.” I haven’t stopped to wonder why Chief Ozekhome thought the drafters of the Constitution were not literate enough to know that the introduction of the punctuation “;” after the word ‘Federation’ and the reassertion of “25%” before the FCT in 134(2)(b) is the tidy way to communicate to the world, that in addition to winning 25% of votes in 24 States, a presidential election winner must also win 25% in the FCT. I think we must be humble to acknowledge that the drafters of 134(2)(b) are knowledgeable enough to come up with a phrasing that includes that a winner must “receive 25% (of votes) in 24 States; and 25% in the FCT, Abuja” if they had intended something different from what is clearly left in 134(2)(b).
Since the drafters have not expressed that wish (of the FCT being a land of SUPER electorate) by using the phrasing being urged on us by Chief, we must make peace with the simple meaning of 134(2)(b). By redrafting 134(2)(b), it means 134(2)(b) and Chief’s draft are not the same thing. In the face of conflicts, it is the wish of the drafters of 134(2)(b) that must be preferred. This is the literal rule of interpretation. Our preference, no matter how fanciful, can no more supplant the clear provision of the law, than our wish for the day to become night.
Having been charmed by Chief’s legal arguments several times in the past, I looked forward to seeing Chief making references to other places in the Constitution or situations where the FCT assumes a super status over any other state of the Federation. My high expectations tumbled when I realized there is no such single mention in Chief’s piece.
While it may be true that the FCT being “the Capital of the Federation and seat of the Government of the Federation,”(1) has a ‘special status,’ however, the ramifications of such special status would need to be clearly traceable to the Constitution, but not subjected to readers’ transitory or stereotypical perspectives. I am sure that the scholarly senior advocate would have readily referenced any provision of the Constitution which expressly states that the FCT’s special status as the seat of the Government of the Federation confers on its citizen-residents the status of SUPER electorate. A lack of such reference will never mean a lack of legal research, for reliving the scholarly superhighway and the dizzying glitz of Chief’s professional achievements; no one would be left in doubt that the Learned Silk and the cream of exceedingly bright lawyers in his law firm would have spent thousands of combined hours poring over the entire 320 sections of the Constitution, including its Schedules. Thus, a lack of such reference means only one thing: a lack of any provision to be called in aid of Chief’s interpretation.
Likewise, I would not seriously think that exercise of legislative power over the FCT by the National Assembly as a bastion of the FCT’s superiority. It requires not much thinking to understand that such state of affairs is a product of political pragmatism. Not only that the charismatic senior lawyer did not reference a similar situation of FCT’s super status, he had to counter his own position by submitting that the FCT must be “treated as any other State in Nigeria” while expressly invoking BAKARE V. OGUNDIPE(2) which held that the FCT’s status is as “one of the States of the Federation.”
I was also expecting the learned Chief to enrich the 25% discourse by referencing the Constitution Drafting Committee’s debates and Constituent Assembly’s deliberations which offered any support for his view of 134(2)(b).
It appears that Chief’s arguments, though engaging as his write-ups always are, eventually perished in self-immolation. Or how does one understand the exemplarily brilliant senior lawyer when he agreed with BABA-PANYA V. PRESIDENT, FRN(3) that the FCT is not superior or inferior to any other State in the Federation, but still insisted that garnering 25% of total valid votes cast in the FCT is inevitable in declaring a presidential election winner while it doesn’t matter if no such percentage of votes is received by the winner in 12 states? I see this argument as saying the FCT is more important than each of the 12 states where the winner fails to receive 25% of total valid votes cast.
Chief Ozekhome also didn’t advance any reason the votes of a citizen-resident of the FCT should weigh twice as much or, at least, heavier than another citizen-resident of any other State of the Federation. There must be a strong reason. If not, don’t we think that such an electoral caste system in a republic will leave everyone befuddled?
Though Chief’s Ozekhome’s argument in favor of the FCT as land of SUPER electorate may succumb to the wounds of its internal crises, I however rejoice in Chief’s past shining contributions to Nigeria’s jurisprudence. And I weep not by this impermanent blunting of Chief’s legal sword, for I know tomorrow, Chief shall pick up his mantle and shall see and speak as the oracle of the law he has always been.
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1. See Section 298 of the Constitution
2. (2021) 5 NWLR (pt.1768) 1.
3. 15 NWLR (Pt 1643) 423.
Deji Jayeoba
March 8, 2023.
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