THE NATION
By Yomi Omoyele
In the past couple of weeks, following the declaration by INEC of Asiwaju Bola Ahmed Tinubu of the All Progressives Congress (APC) as the winner of the presidential election held on February 25, the Nigerian populace has been treated to a barrage of opinions by persons from all walks of life, including lawyers, on the preferred or most comforting interpretation to accord the constitutional provision set to be met by anyone seeking to be declared president-elect.
Of all the key legal requirements in this regard, the foundational constitutional provision prescribed in Section 134(2) of the 1999 Constitution of the Federal Republic of Nigeria, 1999, has been the most interrogated by virtually all the commentators, and it is on this piece shall be centered.
For easy reference, here is what that provision says:
“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 Nigeria, English is the language of law. A mastery of that language is, therefore, a fundamental requirement in understanding and interpreting all legal documents done in English, and these include the Nigerian constitution itself and all statutes regulating all affairs of government and its agencies. So, and most naturally too, the higher one’s degree or mastery of English, the better one’s understanding and easier one’s application of the law.
There are three main canons of interpretation in law- the Literal Rule, the Golden Rule and the Mischief Rule. Recourse is usually had of the first, the Literal Rule, as a most natural primary go-to means in resolving problems of meanings of terms in legal documents. It is usually when solutions are not found in the use of this method, other canons are examined.
By the Literal Rule, the ordinary grammatical meaning of a word should be applied in its interpretation when it occurs in a structure. It should be noted, also, that words usually generate meanings from the environment in which they appear. For example, the word “head” can be a noun and mean (1) the uppermost part of the human body; (2) the leader of a group or organisation; (3) the front or top of an object; or (4) the tip of an object like a needle, pin or nail. It could also be a verb and mean (5) to move in a particular direction as in ‘head homeward’, ‘head straight to school’, etc. It is with this basic information at the back of our minds it is intended that this matter be approached.
Here are some of the interpretations put forward by different persons regarding what Section 134(2) of the Nigerian Constitution, 1999, says about who may be declared president-elect.
By Section 134(2)(a), to qualify as president, a candidate in a presidential election must have scored the highest number of votes cast at that election. There does not appear to be any controversy over this leg of the provision as everyone seems to see it as simply normal, natural, expected and accepted that accords you the benefit of the first consideration of being deemed a winner, barring any other condition set by law. So, here, no further explanation is required as the provision is considered simply self-explanatory and generally well understood by all parties in the controversy.
If Section 134(2)(a) is so clear as to not require a debate of any shade, the same cannot be said of the other leg of the section. That other leg is Section 134(2)(b).
Section 134(2)(b) says, for any candidate to be considered as winner in the presidential election, apart from meeting the condition set out in Section 134(2)(a) above – scoring the highest number of votes in that election- he must, in addition, have scored “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.”
Let us try and break down some of the terms used in this provision. When we say one-quarter, what exactly do we mean? Two other names by which one-quarter is known are one-fourth and twenty-five percent. For the purpose of this discourse, we would adopt twenty-five percent as presenting the version more easily understood. So, 25 percent is elected for use in place of one-quarter.
Nigeria has 36 states and a Federal Capital Territory. I, therefore, identify Nigeria as having 37 geo-political components made up of “all the (36) states in the Federation AND the Federal Capital Territory, Abuja.”
Now, what are the arguments regarding this sub-section of the provision? A school of thought argues that, apart from scoring the highest number of votes in the election, the presumptive president must also have garnered a minimum of 25% of votes cast in, at least, 24 states AND in the Federal Capital Territory, Abuja. Better presented, it means the presumed winner must have:
a. the highest number of votes; and,
b. a minimum of 25 percent of votes in, at least, 24 of the 36 states of the Federation; and,
c. another minimum of 25 percent in the Federal Capital Territory, Abuja.
The crux of their argument is that the minimum of 25 percent score in the Federal Capital Territory, Abuja, with a minimum of 25 percent of votes in, at least, any 24 states is a mandatory requirement for being declared winner by virtue of the conjunction AND used in “…all states in the Federation AND the Federal Capital Territory, Abuja.” So, here, the winner here is said to be that person who has the highest number of votes, and has 25% of the total number of votes in, at least, 25 different geopolitical components which must include the Federal Capital Territory, Abuja. By this token, a failure to secure that 25 percent minimum of the total number of votes cast in the Federal Capital Territory, Abuja, automatically presents a candidate as disqualified from being considered as president-elect. The thrust of their argument is that the conjunction AND indicates that what applies to the states also applies to the Federal Capital Territory, Abuja.
The other school of thought posits that the presumptive president must have scored:
a. the highest number of votes in the election; and,
b. a minimum of 25 percent of votes cast in, at least, two-thirds of all the 36 states of the Federation AND the Federal Capital Territory, Abuja, all amounting to a minimum of 25 percent of votes recorded in any 25 different geo-political components of the country jointly made up of the 36 states and the Federal Capital Territory, Abuja, but the Federal Capital Territory, Abuja not being necessarily part of the components where the mandatory 25 percent minimum votes must be recorded.
This would mean that the winning scores could be derived from any 25 of the 37 geo-political components, with or without the Federal Capital Territory, Abuja. In other words, not scoring up to 25 per cent of votes cast or any vote at all in the Federal Capital Territory is not injurious to the aspiration of anyone seeking to be declared president-elect. Well, this seems where healthier reasoning leans. My heart finds comfort here, and the reasons shall be provided as clearly as possible.
First, what could the intention of the drafters of the constitution be in that provision? Could they be insisting that whoever must be president of Nigeria, apart from garnering the highest number of votes in the election, must also score:
a. a minimum of 25 percent of the votes spread across, at least, 24 states; and,
b. at least, another 25 percent of the votes in the FCT?
Assuming without conceding that that is the true position, it would only have been indirectly said that, even if a candidate secures the highest number of votes and also scores the minimum of 25 percent requirement in all 36 states of the Federation but fails to have any vote in the FCT, then, he would not have qualified to be declared winner. This, certainly, is not and cannot be what the drafters would have had in mind. The simple intention of the drafters is for anyone elected president to be such a person who would command acceptance across a considerably wide segment of the country. So, the two-thirds spread, in whatever form it presents itself, with or without the FCT, is what the drafters envisaged as indicative of that spread of acceptance for the president, and that accords with the thinking that spread can come from any 25 of the 37 geopolitical components of the country, the Federal Capital Territory, Abuja, being in the status of a state for this purpose and, like any state, not specifically named as being compulsory to the winning requirement. It is, therefore, little wonder that the election of a governor attracts no such controversy. This is what the constitution says in Section 179(2)(a) and (b):
“A candidate for the Office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates-
a. he has the highest number of votes cast at the election; and,
b. he has not less than one-quarter of all the votes cast in each of, at least, two-thirds of all Local Government Areas in the state.”
But, besides this, let us examine Section 134(2)(b) from the perspective of an English grammarian and see what it leaves us with, particularly in view of the Literal Rule.
How would a grammarian interpret this?
“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 – 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.”
Somehow, some have argued their preference, making the word AND the basis of their position in interpreting this provision of the constitution. According to them, AND is a conjunction and that, I must say, is one observation so beautifully made. The conclusion they have reached in spite of their ability to identify what AND is is, however, very faultily rooted on account of their firm understanding of how AND behaves, particularly taking cognisance of other elements that that conjunction may appear within a structure.
Yes, AND is a conjunction, as someone put it, ‘performing the function of joining two expressions or sentences which would be inseparable, integrated, joint or matched.’
By this definition alone, the proponents of the school insisting on a minimum of 25 percent votes score in the FCT ought to have arrived at a conclusion different from that which they promote, particularly since, according to them, whatever is applicable to the states of the Federation is applicable to the Federal Capital Territory. This position, again, is correct! So, the first question is: What exactly is applicable to the states that should be applicable to the FCT? That is very simple…the FCT should assume the status equivalent to that of a state for the purpose of this calculation! How and why is this so?
“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…he has not less than 25% 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.”
To be declared winner, you must secure, at least:
I. 25 percent of votes cast at the election…;
II. The 25 percent must be from, at least, two-thirds of all the states in the Federation AND the Federal Capital Territory, Abuja.
From this, it is clear that the states of the Federation are not to be separated from the Federal Capital Territory, Abuja, in calculating what constitutes “two-thirds of all the states of the Federation and the Federal Capital Territory, Abuja”. The reason is that whatever is applicable to the states in the Federation IS applicable too to the Federal Capital Territory, Abuja. The cases of Baba Panya v President, Federal Republic of Nigeria (2018) and Bakari V Ogundipe are instructive in this regard.
By that token, what the provision seeks is the naming of a winner as that person who, apart from possessing the highest number of votes, is also able to garner a minimum of 25 percent of votes from two-thirds of the combination of the 36 states of the Federation and the Federal Capital Territory, Abuja. And, what does this give us?
We are presented with 37 geo-political components, made up of the 36 states and the Federal Capital Territory, Abuja. It is from these 37 components we seek what constitutes two-thirds. By the decision in Chief Obafemi Awolowo V Alh. Shehu Shagari & 2 Ors (SC.62/1979), we already know that ‘a state, being a corporate body or legal person, cannot be fractionalized’. It follows that, in determining what two-thirds of 37 components is, we must also note that these components are composed of corporate bodies or legal persons incapable of being fractionalized. Therefore, while, ordinarily two-thirds of 37 would be 24.67, the rule as it applies to corporate bodies or legal persons, as they are incapable of being fractionalized, is that a shift is made to round the number up in the fraction left. So, rather than have 24.67, 25 corporate bodies or legal persons is the answer we would be left with. What is then being sought in determining the winner would, apart from the highest number of votes, be a minimum of 25% of votes cast in any 25 out of the 37 component parts, noting that, by Section 299 of the Constitution of the Federal Republic of Nigeria, “the provisions of this constitution shall apply to the Federal Capital Territory, Abuja, as if it were one of the states of the Federation…”
Before this is concluded, there is this piece of information I consider vital and capable of providing a good degree of conviction in this regard.
If it was the intention of the drafters of the constitution to ensure the Nigerian president must win or, at least, secure 25 percent of votes in the FCT, Abuja, then, that provision would have looked different from what that section of the 1999 constitution currently provides. Consider these:
1. ”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 he has not less than 25% 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.
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 he has not less than 25% of the votes cast at the election in each of, at least, two-thirds of all the states in the Federation and IN the Federal Capital Territory, Abuja.”
These are two different provisions. In each of them, there are two components: (i) the 36 states and (ii) the Federal Capital Territory, Abuja.
In Provision 1, the 36 states are taken together with the Federal Capital Territory, Abuja, as being on an equal legal footing and, so, the FCT here is treated as if were a state. Two-thirds of the all the 36 states AND the FCT would, therefore, mean any 25 of the 37 components made up of the 36 states and the FCT.
On the other hand, Provision 2 prescribes the treatment for the states and the treatment for the FCT separately. The insertion of the preposition IN after AND and before “the Federal Capital Territory, Abuja” is very instructive as it gives the provision a completely different, yet very clear meaning. By this seemingly innocuous insertion of another IN after AND and before “the Federal Capital Territory, Abuja”, a candidate in the presidential election is required to have a minimum of 25 percent of votes cast in the FCT, Abuja, to qualify as winner. It follows, therefore, that the omission or non-inclusion of the preposition IN after AND and before “the Federal Capital Territory, Abuja,”in that sub-section of the constitutionis a clear indication that, by the Literal Rule, what the provision prescribes is 25% of the votes cast in any of the 37 geopolitical components of the country jointly made up of the 36 states of the Federation and the Federal Capital Territory, Abuja. The belief that a minimum of 25 percent of votes cast IN any 24 states and IN the Federal Capital Territory, Abuja is, therefore, grounded upon a very wrong premise resulting from a very weak understanding of some basic rules of English grammar.
Omoyele is a legal practitioner based in Lagos and can be reached via yomiomoyele@gmail.com
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