Earlier in the year 2023, a Senior Advocate of Nigeria and former President of the Nigerian Bar Association, Dr. Olisa Agbakoba, had written to the Independent National Electoral Commission (INEC) seeking clarification regarding the seemingly ambiguous provisions of section 134 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). 

Section 134 (2) is the relevant subsection as it applies in the instant situation where we have multiple presidential aspirants. It provides:

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.

I am not aware if the INEC made the needed clarification as requested by Dr. Agbakoba. Undoubtedly, INEC is not a court of law with powers of interpreting statutes and the Constitution. The request for clarification appears to have been made in order to at least know the position of INEC beforehand. Anyone who may be dissatisfied with INEC’s position may proceed to court for the court’s interpretation.

There is no doubt that section 134(2) seems to be ambiguous.  The controversy it is currently breeding is sufficient to conclude on its status of ambiguity. From the reports on the recent presidential election at the FCT, APC scored 19.8%, PDP, 16.1%, and Labour Party, 61%. 

Making meaning out of the provisions – the arguments

In Nigeria, we have 36 states. Two-thirds majority of 36 states is 24 States. The use of “and the Federal Capital Territory, Abuja” under section 134(2) may appear to mean that FCT is not included in the 24 states. Thus, it is attractive to argue that in addition to scoring 25% (i.e. one-quarter) of the votes cast in the election in at least 24 states, the candidate must also score 25% of the votes cast at the FCT. This is even more so since the use of the conjunction “and” means inclusion or addition.

Section 299 of the Constitution provides that the provisions of the Constitution shall apply to the FCT as if it were one of the states of the Federation. The court has upheld this provision. But does this position affect section 134? 

Section 299(a) tried to put things in context. Thus, the Constitution regards the FCT as a state to the extent that the National Assembly has the powers to make laws that will apply to the FCT as if the National Assembly is the House of Assembly of a state. Also, the President shall exercise executive powers over the FCT as if the President is the Governor of a state.

For the purpose of section 134(2), it seems to be a valid argument that if a candidate wins 25% votes in at least 25 states, without winning 25% votes at the FCT, the candidate becomes president. In other words, 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 should be interpreted to mean 25% votes in 24 states and 25% votes in the FCT or 25% votes in 25 states. But Section 134 did not expressly state so. Therefore, some might argue that this was not the contemplation of the Constitution.

There is yet another angle to look at it. In line with section 299(a) of the Constitution (as seen above) and the FCT Act, the President is regarded as the Governor of the FCT. So, in contesting the presidential election, should a presidential candidate be taken like a gubernatorial candidate as far as the FCT is concerned? If yes, so how can you not win at the FCT in order to be governor? How can you not win 25% of votes cast at the FCT and expect to be the “Governor of the FCT”? Could it be that the draftsmen of the Constitution knew precisely what they were doing in section 134(2)?

Critical poser

But while acknowledging the ambiguity in section 134 of the Constitution, a critical poser appears to solve the puzzle.

What happens when, for instance, presidential candidate A wins an overwhelming number of votes at the FCT only, leaving the other presidential candidate B with less than 25% votes at the FCT, but presidential candidate B scored highest number of votes cast at the election including 25% votes in at least 25 states? Will the election proceed to a runoff because candidate B missed 25% at the FCT and candidate A happens to win ONLY at the FCT? Should winning in all the states but losing in the FCT deny a presidential candidate victory? The answer is no.

Conclusion

In my opinion, failure to score 25% of the votes cast at the FCT alone should not stop a candidate from winning the presidential election.