A Senior Advocate of Nigeria, Aikhunegbe Anthony Malik, has said that no Presidential candidate is required to record at least 25% of votes cast in the FCT in order to be declared President.
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Recall that lately, there has been a spate of opinions on the correct interpretation of the provisions of section 134(2) of the 1999 Constitution which encapsulate the legal requirements or conditions precedent that a candidate must satisfy before he can be declared by the Independent National Electoral Commission [INEC] and returned as the winner of the election to the office of President in Nigeria.
The hotly debated provision reads,
“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-
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.”
According to the Learned Silk, in other to provide proper interpretation to the section, one needs to understand the interpretational approach usually adopted by Nigerian courts in interpreting provisions of the constitution.
He said, “is prudent to preface this intervention by stating that the approach of the courts to the construction of the provisions of the constitution has always been one of liberalism. Thus, the courts usually avoid a construction which will defeat the obvious ends that the constitution itself was designed to serve. More often than not, the courts embrace the construction which accords and is consistent with words and sense. See United Agro Ventures Ltd. vs. FCMB Ltd. (1998) 4 NWLR (PT. 547) 542 at 559. See also Fawehinmi vs. IGP (2000) & NWLR (Pt.665) 481 at 528”
He also argued that the drafters of the Constitution considered the FCT and part of the federation’s constituent units when contemplating the provision in question, and stated that the issue was laid to rest by the Supreme Court as far back as 2005.
“The reference to the FCT in the provision is clearly indicative of the unimpeachable fact that the territory is treated as part of the constituent units from where a candidate who is desirous of being declared the winner of the presidential election in Nigeria can amass, at the very least, one-quarter, that is, 25%, of the total valid votes cast at the election.
It, therefore, imports a serious remiss for anyone to contend that the mention of FCT in the section implies the erection of an additional constitutional hurdle that must be dismantled by a candidate. I do not see any court of law that will be persuaded by such argument.
In point of fact, the provisions of section 134(2) of the Constitution fell for consideration and determination by a full panel of the apex court in Buhari vs. Obasanjo (2005) All FWLR (Pt. 273) 1, aeon ago! In a unanimous judgment of the court, it was held that the purport of the provisions is simply to ensure that a winning candidate should have the required majority. The court stated further that once a candidate attains such majority, the requirement of the section is/are fulfilled. ”
He further said, “Those who have suggested the strained interpretation of section 134(2) to the effect that a successful Presidential candidate must secure 25% of the votes in at least two-third of the 36 States and, as well, secure an additional 25% of the votes cast in the FCT, seem to overlook the essence or significance of the conjunctive word ‘and’ employed therein. In law, whenever the word is employed, it denotes a conjunctive and never a disjunctive meaning. See Yusuf vs. Obasanjo (2006) All FWLR (Pt. 294) 387 at 453. It appears to me, rather clearly, that the quagmire which some writers and commentators have harped on in relation to the provisions of section 134(2) of the Constitution is self-inflicted. If the drafters of our constitution had intended a separate or additional “25% vote requirement” for a candidate, they would have so stated.
May I invite our attention to section 48 of the 1999 Constitution whereat the composition of the Senate of the Federal Republic of Nigeria is stated unequivocally as follows:
“The Senate shall consist of three Senators from each State and one from the Federal Capital Territory”
From the afore-quoted constitutional provision, it is beyond any argument that whereas each State in the country is entitled to produce a maximum of three Senators, a different requirement of one is deliberately set or prescribed for the FCT, the use of the word “and” notwithstanding.”
He also argued that It is beyond any doubt that the FCT is regarded and treated as a State and referred to the case of Baba-Panya vs. President, FRN (2018) 15 NWLR (Pt. 1643) 395 at 30, where the Court of Appeal held that the Federal Capital Territory is, in law, a State.
“In other words, the Federal Capital Territory is to be treated like a State, and it is not superior or inferior to any State in the Federation. See section 299 of the Constitution” he said.
He summed up saying that he holds the respectful view that the proper interpretation that accords with the purposive prescription handed out by the apex court is one which treats the “FCT” as a State and regards it as a critical part of the constituent units (two-thirds of all the States) from where a candidate is at liberty to draw his “one-quarter” [25%] votes. Any other interpretation is clearly a product of mechanical jurisprudence!
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