A CANDIDATE WITH THE HIGHEST NUMBER OF VOTES CAST IN A PRESIDENTIAL ELECTION, DOES NOT NEED UP TO 25 PERCENT OF ABUJA VOTES AS A MANDATORY CONDITION PRECEDENT TO BEING DECLARED THE WINNER

Section 134 (2) of the CFRN 1999 provides that “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”  In my opinion, what the constitution means is that adding Abuja to the other 36 States (to make up 37 States), a candidate with the highest number of votes cast in a presidential election, must also get at least 25 percent of the votes cast in each of at least 2/3 of the number (that’s, 37 states). Accordingly, if the candidate secures at least 25 percent in each of up to 25 States, the constitutional requirement would be deemed satisfied irrespective of whether he gets up to 25 percent votes in Abuja or not… Thus, a candidate who secures the highest number of votes cast and also at least 25 percent in each of the 25 States of Nigeria, does not need to score up to 25 percent in the FCT Abuja as a condition precedent to being declared the winner.

My view is that the “and” in “all the States in the Federation AND the Federal Capital Territory, Abuja” is conjunctive, not disjunctive. The role it plays in section 134(2) is merely to add the FCT Abuja to the number of States in Nigeria, so that a candidate would know he must get up to 25 percent of the votes cast in each of 2/3, not just of 36 States, but of “the 36 States and Abuja” (which is 37 States).

My submission that the “and” has a conjunctive interpretation may be strengthened by the realization that the Constitution of the Federal Republic of Nigeria treats the FCT Abuja as a State in Nigeria. In other words, Abuja has the status of a State. If this is the case, why should Abuja be treated differently from the other States, for the purpose of interpretation and application of section 134(2) of the Constitution? It’s therefore submitted that for purposes of the application of section 134(2) CFRN, Nigeria is a country of 37 States. In my commentary titled “WHY NIGERIA MUST ALWAYS HAVE A MINIMUM OF THIRTY-SEVEN (37) MINISTERS FOR THE GOVERNMENT OF THE FEDERATION” [July 03, 2016; <http://adviceafrica.blogspot.com/2016/07/why-nigeria-must-always-have-minimum-of.html?m=1>], I discussed why Nigeria is a country of 37 States: “Thirty-seven (37), because, by virtue of the provisions of section 299 of the Constitution of the Federal Republic of Nigeria, as amended, the provisions of the Constitution shall apply to the FCT, Abuja as if it were one of the States of the Federation”.

 Continuing, I said:_

‘In a letter to Justice William Johnson of the United States, Sir Thomas Jefferson, a founding father and 3rd President of the United States of America, had this to say: “on every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.” The following words of Abraham Lincoln, delivered in a speech he made on August 27, 1856, at Kalamazoo, Michigan would serve as a piece of advice to us on the construction of our Constitution: “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties. And not to Democrats alone do I make this appeal, but to all who love these great and true principles.” Let us then not turn our government and governance away from the channel in which the framers of the Nigerian Constitution originally placed them. The business of governance is too serious and onerous to be left in [the] hands of only the leaders; they need the law and the Constitution as their guide’._  On its part, *Section 301 of the Constitution of the Federal Republic of Nigeria, 1999, provides:

“”Without prejudice to the generality of the provisions of Section 299 of this Constitution in its application to the Federal Capital Territory, Abuja, this Constitution shall be construed as if – (a) references to the Governor, Deputy Governor and the Executive Council of a State (howsoever called) were references to the President, Vice President and the Executive Council of the Federation (howsoever called) respectively; (b) references to the Chief Judge and Judges of the High Court of a State were references to the Chief Judge and Judges of the High Court, which is established for the Federal Capital Territory, Abuja by the provisions of this Constitution”.

Finally, While answering the question, of whether the Federal Capital Territory is a “State” by virtue of the provisions of Section 299 of the Constitution of the Federal Republic of Nigeria, 1999, the Court of Appeal (Per RAPHAEL OLUFEMI ROWLAND, JCA, pp 7 – 13 Paras A – A) said in KOYODE v. FCDA (2005) LPELR-41123(CA):

“…. Section 299 provides thus – “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- (a) 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 matter aforesaid shall be read with such modification and adoptions as may be reasonably necessary to bring them into conformity with the provisions of this Section.” 

The above provision of the Constitution to my mind is very clear and unambiguous. It is trite that where a provision of a statute is clear and unambiguous, only its natural meaning is to be given to its interpretation. See A-G., Abia State v. A-G., Federation (2002) 17 WRN 1; (2002) 6 NWLR (Pt. 763) 264 at 485 – 486, Texaco Panama Inc. v. Shell P.D.C.N. Ltd. (2002) 14 WRN 121; (2002) 5 NWLR (Pt. 759) 209 at 227 – 228, Tasha v. U.B.N. Plc. (2003) 36 WRN 64; (2002) 3 NWLR (Pt. 753) page 99 at 106, O.A.U. Ile-Ife v. R. A. Oliyide and Sons Ltd. (2001) 7 NWLR (Pt. 712) page 456 at 473, Akpan v. Umali (2002) 23 WRN 52; (2002) 7 NWLR (Pt. 767) page 701 at 729. It is therefore doubtless clear that by virtue of Section 299 of the Constitution of the Federation, the Federal Capital Territory is in law a State. In others words, the Federal Capital Territory should be treated as one of the States in the Federal Republic of Nigeria. It follows therefore that bodies like the Federal Capital Development Authority are to be regarded as an agency of “a State” independent of the Federal Government. It would appear that the only relationship existing between the Federal Government and the Federal Capital Territory is that its executive and legislative powers and duties are exercised for it by the President through the Minister of the Federal Capital Territory and the National Assembly respectively. From the provision of Section 299(a), where the President through the Minister of the Federal Capital Territory Acts, he does so as a Governor of a State, so also where the National Assembly legislates for Abuja it does so as a State House of Assembly. See Fawehinmi v. Babangida (2003) 12 WRN 1; (2003) 3 NWLR (Pt. 808) page 604 where the Supreme Court endorsed the status of Federal Capital Territory as a “State” of the Federation. On page 677 the Supreme Court per Onu, JSC held as follows- “Returning to the case in hand, the power to make a law under the 1999 Constitution for the establishment of a Tribunal of Inquiry is now a residual power, which only the States can exercise. The National Assembly can only pass such a law in regard to the Federal Capital Territory, Abuja. Thus, while the Commission of Inquiry Act Cap, 447 is an existing law, it has no general application to Nigeria. It is only applicable to the Federal Capital Territory a law deemed enacted by each House of Assembly for the respective States.” I hold the strong view that the intendment and general purpose of the Constitution of the Federal Republic of Nigeria particularly its Section 299 is that the Federal Capital Territory should be a separate administrative unit distinct from the Government of the Federal Republic of Nigeria. This is the position in reality. For example, the Abuja Environmental Protection Board is an agency created for the development, enhancement and beautification of the Abuja environment while the Federal Government has a similar agency called the Federal Environmental Protection Board. Section 5(e) of the Abuja Environmental Protection Agency Decree No. 10 of 1997 provides as one of the objectives of the board to “co-operate with the Federal Environmental Protection Agency and such other States, Environmental Protection Agencies to achieve effective prevention or abatement of transboundary movement of wastes.” It seems to me that the above provision further confirms the status of Abuja as a separate administrative unit distinct from the Government of the Federation. 

I consider Section 301 of the 1999 Constitution to be very germane to the subject matter. Section 301 reads- “Without prejudice to the generality of the provisions of Section 299 of this Constitution in its application to the Federal Capital Territory, Abuja, this Constitution shall be construed as if – (a) references to the Governor, Deputy Governor and the Executive Council of a State (howsoever called) were references to the President, Vice President and the Executive Council of the Federation (howsoever called) respectively; (b) references to the Chief Judge and Judges of the High Court of a State were references to the Chief Judge and Judges of the High Court, which is established for the Federal Capital Territory, Abuja by the provisions of this Constitution???” From the above provisions of Section 301 of the 1999 Constitution, it is my view that all institutions created for the Federal Capital Territory only carry the appellation “federal” while in the real sense, they are State agencies because they are institutions meant for the Federal Capital Territory as a State. I must say it loud and clear again that from the provisions of Section 299 of the Constitution, one should not be left in doubt: (i) That the provision of the Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation. (ii) All legislative powers, executive powers and 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 the Courts established under the Federal Capital Territory”._

It’s therefore my position that a Presidential Candidate who scores the highest number of votes cast is not required to score up to 25 percent of the votes cast in the FCT Abuja as a mandatory condition precedent to being declared the winner, provided that the candidate has secured at least 25 percent of the total votes cast in each of at least 25 States of Nigeria. 

By way of conclusion, let’s take a look at the following two English expressions/constructions, to help make the intendment of section 134(2) clearer:

A. “in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja”.

B. “… in each of at least two-thirds of all the States in the Federation and in the Federal Capital Territory, Abuja”.

The former [number (A)] is the exact expression used in section 134(2) CFRN 1999. If you look at the grammar construction, you’d see that the “and” in the number (A) is used and meant to be interpreted conjunctively, meaning that the affected candidate is only required to score up to 25 percent of the votes cast in each of 2/3 percent of the totality of the component units of Nigerian (that is, 37 States: comprising 36 States and Abuja). On the other hand, the “and” in the number (B) above is used and meant to be interpreted disjunctively, meaning that aside from scoring at least 25 percent of the votes cast in each of 2/3 of 36 States, the affected candidate must additionally, unfailingly score at least 25 percent specifically in the FCT Abuja.

I think there is no confusion in the wording of section 134(2) of the Constitution; it leaves no one in doubt that the FCT Abuja is not to be treated separately from the other 36 States, but must be considered as one of the constituent units or Federating States meaning that there are 37 States for the purpose of calculating the 2/3 requirement in section 134(2)(b) of the Constitution. 

The following observations were made in a paper titled, “Place of Internal and External Aids in Statutory Interpretation In the Light of Legitimateness of Jurisdictive Discretion”:

_“The meaning of an enactment must be ascertained from its text, in light of its purpose and in its context.” The legislature must be taken in a statute to have said exactly what it means, and also to mean exactly what it has said therein. Although jurists may take the help of both the Rules or Canons of Interpretation as well as of some Internal Aids and External Aids to the Rules in the interpretation of Statutes, it goes without saying that interpretation of a word or expression must depend on the text and the context. In People v. Jefferson, 10 the California Court of Appeals, 4th District, USA, observed that the role of the courts “in construing a statute is to ascertain the intent of the Legislature so as to effectuate the purpose of the law. According to the Court of Appeals of the US state of Indiana, “the first and often last step in interpreting a statute is to examine the language of the statute”11 As one writer puts it, “statutory test should be both the ending point as well as the starting point for interpretation.”12 This is because, words are the skin of the language, while language is the medium of expressing the object that a particular provision or the Act seeks to achieve. In other words, to find the real intentions of the drafters of a statute, regard must be had to the context, subject matter and object of the statutory provision in question 13 Courts and jurists achieve this by carefully analyzing the whole scope and provisions of the statute or section relating to the word or phrase under consideration.14 Though schools of statutory interpretation vary on what factors should be considered, all approaches to statutory interpretation start (if not necessarily end) with the language and structure of the statute itself.

15 This is because the language and provisions of a statute are the most reliable indicator of the intent of the makers of the statute.16′

[See: Sylvester Udemezue, “Place of Internal and External Aids to Statutory Interpretation in the Light of Legitimateness of Jurisdictive Discretion” (2021) 5 IMSU Journal of International Law and Jurisprudence (IJILJ) 48 (Imo State University). https://www.semanticscholar.org/paper/Role-of-Internal-and-External-Aids-in-Statutory-A-Udemezue/2a1cb4f1f872da82140420cc0a308d65f5900d57]

Respectfully,

Sylvester Udemezue (Udems), Tel (+234) 08109024556, E-mail: mrudems@yahoo.com, (28/02/2023)

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