… INEC’s Suspended Adamawa REC Faces Petition Filed by Concerned Citizen

… UNICAL Professor and Kano Tribunal Judge Under Investigation for Allegations of Sexual Misconduct and Bribery

The Nigerian Bar Association (NBA) has taken a strict stance against alleged professional misconduct by legal practitioners. In a recent development, the NBA has filed petitions with the Legal Practitioners Disciplinary Committee (LPDC) against Mr. Hudu Yunusa-Ari and Ifunanya Excel Grant, also known as “baddest lawyer,” urging disciplinary actions to be taken.

According to a statement released by the NBA and obtained by THE WHISTLER, one of the petitions is lodged against Miss Ifunanya, who is a member of the NBA Abia branch. The complaint against her revolves around her activities on social media, where she has gained notoriety for reportedly sharing explicit photos and videos of herself, as well as engaging in the consumption of marijuana.

The NBA’s move to file the petition reflects its commitment to upholding professional standards within the legal community. By bringing attention to Miss Ifunanya’s alleged unbecoming conduct, the association seeks to ensure accountability and maintain the integrity of the legal profession.

The LPDC will now undertake disciplinary proceedings to investigate the allegations put forth by the NBA. These proceedings will serve as an opportunity for Mr. Hudu Yunusa-Ari and Miss Ifunanya to present their respective cases and defend their actions. The outcome of the investigations and subsequent actions taken by the LPDC will determine the appropriate course of disciplinary measures, if deemed necessary.

Another petition filed by the NBA targets Mr. Yunusa-Ari, who currently serves as a National Electoral Commissioner (REC) but is suspended by the Independent National Electoral Commission (INEC). The petition accuses him of prematurely declaring the results of the supplementary 2023 gubernatorial election in Adamawa State, even while votes were still being counted.

The LPDC Rules 2020, which are officially gazetted and obtained by THE WHISTLER, outline the process for addressing allegations of misconduct against legal practitioners. As per these rules, the Committee within the Body of Benchers (BoB) holds the authority to determine such allegations once proceedings are concluded.

The petition lodged against Mr. Yunusa-Ari signifies the seriousness with which the NBA views the actions of legal practitioners and their adherence to ethical standards, especially in matters as significant as electoral processes. The LPDC, operating under the purview of the BoB, is tasked with assessing the allegations against him and making a well-informed decision regarding any necessary disciplinary action.

The forthcoming proceedings, guided by the LPDC Rules 2020, will enable both the petitioner and Mr. Yunusa-Ari to present their arguments and present any evidence. These proceedings are crucial in ensuring transparency, fairness, and justice in addressing the allegations made against him. Ultimately, it will be the LPDC’s responsibility to assess the evidence, consider the arguments, and come to a conclusive decision regarding potential disciplinary measures, if warranted.

According to Rules 21 to 23 of the LPDC, certain penalties can be imposed on individuals found guilty of misconduct, which can include suspension from practice or admonition.

One key provision in the LPDC Rules states, “If, after the hearing, the Disciplinary Committee finds that the allegation of infamous conduct in a professional respect has been proved, the Disciplinary Committee may, if it deems appropriate, provide direction.” These directions can consist of various outcomes such as:

(a) Ordering the Registrar to strike the legal practitioner’s name off the roll, thus prohibiting them from practicing law.
(b) Suspending the legal practitioner from engaging in legal practice for a specified period by instructing them not to practice during that time.
(c) Admonishing the legal practitioner, which serves as a formal reprimand.

Additionally, if deemed necessary, the Disciplinary Committee has the authority to require the refund of funds that may have been handled by the legal practitioner during the relevant transaction. They may also demand the surrender of documents or any other relevant items, depending on the circumstances of the case. It’s important to note that the Disciplinary Committee retains the discretion to impose multiple orders simultaneously if they deem it appropriate.

These provisions within the LPDC Rules are designed to maintain professional integrity, uphold legal ethics, and ensure accountability among legal practitioners. The specific penalty or combination of penalties imposed will be determined based on the severity of the misconduct and the circumstances surrounding the case.

In response to serious allegations of sexual assault, the Nigerian Bar Association (NBA) has initiated an investigation into the conduct of Professor Cyril Ndifon, the suspended Dean of the Faculty of Law at the University of Calabar.

Following accusations made by female students, Prof. Ndifon has been suspended from his position. The students allege that he engaged in sexual harassment by pressuring them for better grades and advancement opportunities.

The NBA’s decision to open an investigation underscores its commitment to ensuring transparency and accountability within the legal profession. The allegations of sexual assault are grave and warrant a thorough examination to determine the veracity of the claims.

The suspension of Prof. Ndifon by the university administration demonstrates the seriousness with which such allegations are taken in the academic community. The investigation by the NBA will provide a platform for all parties involved to present their testimonies and evidence, allowing for a fair and impartial assessment of the circumstances.

The NBA’s investigation will seek to ascertain the facts surrounding the allegations against Prof. Ndifon. Depending on the findings of the investigation, appropriate disciplinary measures may be taken to address the alleged misconduct and uphold the rights and well-being of the affected students.

Prompted by accusations of bribery, an investigation has been launched into the National Assembly and State House of Assembly Election Petition Tribunal in Kano. The Chairman of the Tribunal, Justice Flora Azinge, raised alarm regarding these allegations.

The seriousness of the bribery claims prompted the initiation of an investigation to ascertain their validity. The allegations suggest that improper financial inducements have been offered or accepted within the tribunal.

Justice Flora Azinge’s decision to alert the relevant authorities reflects her commitment to upholding the integrity of the legal process. By bringing attention to the allegations, she seeks to ensure that justice is served and that the tribunal maintains its impartiality and credibility.

The investigation into the bribery allegations aims to shed light on the matter and determine the truth behind the claims. It is crucial to uncover any potential improprieties that could compromise the fairness and transparency of the tribunal’s proceedings. Depending on the investigation’s findings, appropriate actions may be taken to address any misconduct and uphold the public’s trust in the tribunal’s proceedings.

During her testimony, Judge Flora Azinge disclosed that one of her fellow tribunal members had faced intense pressure to accept large sums of money from one of the parties involved in a case before her tribunal. This revelation further emphasizes the need for a comprehensive investigation into the bribery allegations.

Mr. Yakubu Chonoko Maikyau, the President of the Nigerian Bar Association (NBA), has explicitly called upon all individuals who are under investigation to fully cooperate with the fact-finding committee. This cooperative stance is essential for gaining a thorough understanding of the circumstances surrounding the allegations.

In addition to urging cooperation, Mr. Maikyau has issued a warning to fellow legal practitioners, cautioning them against becoming “bad eggs” in the profession. This serves as a reminder of the importance of ethical behavior and adherence to the highest standards of integrity within the legal community.

The NBA’s fact-finding committee is committed to conducting a fair and unbiased investigation. By encouraging cooperation and accountability, the NBA and its president seek to uphold the reputation of the legal profession and restore public trust in the integrity of the judiciary. It is their collective responsibility to ensure that justice is served and that the legal system remains free from corruption and external influence.

Akorede Habeeb Lawal, the National Publicity Secretary of the NBA, has issued a statement regarding the decision made by the National Executive Committee (NEC) of the NBA. This decision was reached during the NEC’s recent monthly meeting, which was chaired by the NBA President, Mr. Yakubu Chonoko Maikyau, OON SAN, and attended by all national officers of the association.

In response to the allegations against the suspended Dean of the Faculty of Law at the University of Calabar, Prof. Cyril Ndifon, the NBA NEC has formed an ad-hoc committee. The committee consists of Mrs. Linda Rose Bala, the 1st Vice President of the NBA, Mr. Daniel Kip, the Assistant General Secretary of the NBA, the Chairperson of the NBA Women’s Forum, and the Chairman of the NBA Calabar Branch.

The primary objective of this ad-hoc committee is to thoroughly investigate the allegations brought against Prof. Ndifon. Their efforts will be guided by the principles of fairness, impartiality, and due process, with the ultimate goal of uncovering the truth regarding the alleged misconduct.

The NBA’s engagement in this investigation highlights its commitment to upholding professional conduct and maintaining the highest standards of ethics within the legal community. Through the diligent work of the ad-hoc committee, the NBA aims to ensure justice for all parties involved and preserve the reputation of the legal profession.

The NBA is drawing attention to a recent media report concerning the attempted bribe of Justice Flora Azinge, who presides over the National Assembly and State House of Assembly Election Petition Tribunal in Kano. This development has been brought to the forefront due to its significant implications.

In response, the NBA has taken proactive measures to address the situation. On August 16th, 2023, the association sent an official letter to Justice Azinge. This correspondence formally requests her cooperation in sharing additional details related to the attempted bribe. The NBA intends to utilize this information to conduct a thorough investigation into the validity of the allegation.

By seeking Justice Azinge’s willingness to provide further insight, the NBA demonstrates its commitment to upholding justice and integrity within the legal profession. Such actions are essential for maintaining transparency and accountability, which are crucial to preserving public trust in the legal system.

The investigation into the attempted bribe reflects the NBA’s dedication to resolving any allegations of misconduct promptly. By actively pursuing the truth, the association aims to shed light on the matter and address any potential wrongdoing. The NBA’s efforts in this case reaffirm its commitment to maintaining the highest ethical standards among legal practitioners.

During a recent monthly meeting, the National Officers of the NBA addressed concerns regarding the inappropriate behavior displayed by certain members of the legal profession.

Subsequent to the meeting, the NBA has taken action by filing petitions with the Legal Practitioners Disciplinary Committee (LPDC). The petitions have been filed against Mr. Hudu Yunusa-Ari, who holds the position of suspended Resident Electoral Commissioner (REC) for Adamawa State in the Independent National Electoral Commission (INEC). Additionally, a petition has been filed against Ifunanya Excel Grant, a young lawyer from the Aba Branch, known on social media as “the baddest lawyer.”

These petitions emphasize the NBA’s commitment to upholding the standards of professional conduct within the legal community. The allegations against Mr. Yunusa-Ari and Ms. Grant, if proven true, demonstrate behavior that is inconsistent with the ethical expectations of legal practitioners.

By submitting these petitions to the LPDC, the NBA seeks due process and fair investigation into the allegations against the individuals in question. These actions aim to maintain the integrity of the legal profession and serve as a reminder that accountability is paramount when it comes to upholding the standards and reputation of the legal community.

It is crucial to emphasize that none of the lawyers who have been petitioned or are currently under investigation are considered guilty of professional misconduct until the Legal Practitioners Disciplinary Committee (LPDC) concludes its proceedings and renders its decisions following a fair trial. This reminder reflects the principle of presumed innocence and the importance of due process in handling such cases.

The NBA President has highlighted the significance of lawyers maintaining the highest standards of conduct in all circumstances. He has reiterated the commitment of the current NBA leadership to continually work towards eliminating the presence of any unethical practitioners within the profession. This commitment stems from the recognition that the actions of a few individuals should not tarnish the overall reputation of the legal community.

The NBA President’s emphasis on maintaining professionalism underscores the association’s dedication to upholding integrity and accountability within the legal profession. It serves as a reminder to all practitioners to uphold the ethical standards expected of them and to adhere to the principles that guide their practice.

By Chibueze C. Okorie Esq.

Sometime in the month of June 2023, and within days of his Presidency, Bola Ahmaed Tinubu was reported to have said that Nigeria\s financial system is rotten. That was part of an attempt to justify the suspension of Godwin Emefiele from office as the Governor of the Central Bank of Nigeria. Many Nigerians honestly believe that our country has a surfeit of rotten systems. That is most probably why the country is not working, especially for the ordinary people. Nigeria’s justice system is one of such. That Nigeria’s justice system is rotten is an open secret. The public confidence in the primary symbol of that justice system, the judiciary, has been abysmally low in recent times. Of course, Nigeria’s justice system encompasses more than just the judiciary but for good cause the judiciary defines the nature and the ethos of that system. Significantly, the most notable person of popular consequence in Nigeria today to openly avow and show any confidence in our Judiciary in circumstances in which doing the opposite would have been the ordinary and easier thing to do is Mr. Peter Obi, the Presidential candidate of the Labour Party in the 2023 General elections. Most people believe that the relative stability and calm that Nigeria has enjoyed since after the declaration of those election results has been largely due to that oft repeated soft-spoken but firm avowal of confidence in the judiciary by Mr. Peter Obi. For the ordinary Nigerian, that is a most remarkable and incredible credo in favour of a broken system. Unfortunately, for the mass of our people the statement that “the judiciary is the last hope of the common man” is in real terms as good as a wooden lie; one of those promissory notes of the Nigerian Constitution that bounces most of the times when it is presented for payment by the common man. Like I said above, confidence in our judiciary and justice system has been so abysmally low that it was difficult to imagine that something so abysmally low could get any lower. But, shockingly, it did.

Last month, precisely on Saturday the 10^th day of June 2023, at the valedictory session of the 9^th Senate, before his “distinguished” colleagues, and in full view of the  media,  Senator Adamu Bulkachuwa, the Senator representing the Bauchi North Senatorial District made categorical statements to the effect that his wife Zainab Bulkachuwa a former judicial officer and immediate Past President of Nigeria’s Court of Appeal had upon his behest favoured his colleagues in the Senate using her position as a judge. He had expressly said that he had infringed on his wife’s freedom and independence while she served as a judicial officer. Beyond semantics, the message was very clear. No amount of painting can retract from that confession, explain it away or wish it away. It is now part of the public records of our country’s history. It was a national shame and a colossal – no, abysmal – disgrace. I emphasize “abysmal”, because the appropriate metaphor to describe that event must not have or suggest height so that it can be properly descriptive of vileness. Indeed, there are no words low enough to describe the depths of disgrace that incident represents.

Do I believe him? Yes, I do. Why would I disbelieve a man who unequivocally declares in public within the company of his colleagues and friends that he got his wife to dispense favours to them using the pedestal of her office to help them, clearly suggesting that the attitude of his beneficiaries should be one of gratitude? To argue against that public declaration is absolutely counter-intuitive and indeed perverse. The Senator clearly knew where he was and what he was doing. We do not need a court to tell us that a wife in Nigeria is in multifarious ways, and unfortunately so, subject to her husband’s bidding such that evidence that “her husband said so or told her to do so” is enough to reduce her culpability for wrong doing. In our very traditional and patriarchal society, a wife is a person under authority.  That existential fact has been given judicial notice – if we ever needed one – only recently in far away London in the recent celebrated case of R. V. OBINNA OBETA, IKE EKWEREMADU & BEATRICE EKWEREMADU. In his sentencing remarks on the 5^th day of May 2023, the judge Mr. Justice Johnson  of the Central Criminal Courtstated inter alia that“I am satisfied that you, Beatrice Ekweremadu, performed limited functions under the directions of your husband. I accept the submissions of Mr. Mohindru KC that your family was patriarchal and you were deferential to your husband. Your role was primarily to adopt the cousin lie. There was, as far as you are concerned, some limited planning and pre-meditation. You committed the offence in the expectation of a material advantage, namely securing a human kidney for your daughter. Your case falls at the cusp of lower and medium culpability.” You would search very hard to find anyone in patriarchal Nigeria who would argue the opposite and still be regarded as practical or as a person of common sense.

The Senator’s wife, Zainab Bulkachuwa former President of the Court of appeal now in retirement, subsequently put up a short statement denying that she used her office as a judge for any purpose outside the intendment of the law and that she decided her cases on the basis of what was before her without regard to any other improper considerations. She stated that “my decisions were always based on the facts, the law and in accordance with my conscience and oath of office”. Do I believe her? No, I don’t. We live in a “low trust society”, borrowing Chimamanda Ngozi Adichie’s phraseology, and given our experience in this society it would be seriously counter-intuitive to believe the retired Justice without more.  I cannot reasonably believe her husband and believe her too at the same time in the same respect. Both of them assert two diametrically opposed positions. She is the one who is in a more difficult position, considering the high judicial office she held in this society. In the circumstance, it would take more than a bare denial of wrong doing to wash this one off.

There has been a great hue and cry following this incident. Calls for investigation, prosecution and all manner of suggestions that a searchlight be beamed on the whole incident have ensued including the – I think ridiculous – suggestion that the National Judicial Council should investigate the matter. Do I think anything will come out of it? No, I don’t. Nothing will come out of it. This is so, not merely because this is Nigeria where accountability and responsibility is counter-culture, but more so because the position of the law itself expressly makes such an inquiry or investigation impossible and currently fruitless. Section 3 of The Legislative Houses (Powers and Privileges) Act provides for the immunity of members of a legislative house to ensure their absolute freedom of speech in these terms;

No civil or criminal proceedings may be instituted against any member of a Legislative House –

(a)     in respect of words spoken before that House or a committee thereof; or

(b)     in respect of words written in a report to that House or to any committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him therein.

In my opinion, that is an absolute immunity; unqualified in any respect. As expressed, the words of that provision mean that no court can properly entertain any civil or criminal proceedings that has what a member of the legislature said or wrote before the House as its cause of action not to talk of going ahead to find them criminally or civilly liable for any words they say or write in the stated circumstances within the Legislative House and in exercise of their duties. It may be argued that this immunity does not include immunity from investigation or questioning and that the security agencies may invite the Senator for interrogation. But then, to what end and purpose? What can it be used for? Whatever they get is effectively useless. And that is, if they get anything at all. Let us imagine that the Police or DSS get the Senator in for questioning, he has an option to refuse to speak and he cannot be compelled to say anything. The Section 35(2) of the constitution effectively protects the right against self-incrimination. Then assuming he talks, what end would that serve? None. That is because you cannot take him to court to get him held civilly liable or criminally responsible for what he has said or in connection therewith.

I believe Senator Adanu Bulkachuwa as a Nigerian legislator knows that position of the law. I am not so naïve to assume (and I would describe anyone who does so assume as naïve) that a class so conscious of its privileges and even claims a significant portion of our commonwealth as its entitlement would be ignorant of ordinary privileges given to it by law. Of course, the original intent of that immunity is to enable the frank and open discussion of matters by legislators without any fear of liability, and this for the ultimate good of the commonwealth. But like all things official in Nigeria, the common good is appropriated for the preservation of the oligarchy.

The call by some commentators for the National Judicial Council to take any actions in respect of this particular incident is misplaced and far-fetched. The National Judicial Council established under Section 153(1)(i) of the Constitution with its composition and powers set out in Part 1 of the third Schedule to the Constitution has no powers whatsoever over retired judicial officers. They certainly have no jurisdiction over Senators whether sitting or former and would not have the powers to compel the attendance of that class of persons with respect of this matter.

So seeing that this particular incident is one for which the principal characters can neither be questioned, investigated nor can any remedies be recovered against them, what reflections about our justice system does it inspire? What lessons can we learn as a society so that going forward this negative incident can provide an impetus for positive change? I shall deal with those issues in the following part of this piece.

Chibueze C. Okorie is a Legal Practitioner based in Port Harcourt. He is an author and also teaches Philosophy of Law at the Seat of Wisdom Seminary, Umuahia, an affiliate of the Pontifical Urbanian University, Rome. He can be reached via his email address [email protected]

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By Chibueze C. Okorie M.A, LLB., BL.

Legal Periscope made its debut on Monday, June 19, 2023, with a focus on part one of “Assessing the 25% of FCT Abuja Votes Argument – Much Ado about Nothing”. For three weeks running, we have brought you the same topic in three parts: Introduction and The Anatomy of Section 134(2)(B), The Federal Capital Territory, Abuja Under The 1999 Constitution and The Anatomy of a Fallacy, and finally, the “Mandatory 25% of FCT Abuja Argument” Is Bad Law and Conclusion. This week, we bring you a comprehensive package of the entire piece. Happy reading.

1.0     INTRODUCTION

1.1     Following the declaration of the results of the February 25^th 2023 Presidential elections and the return of Bola Ahmed Tinubu of the All Progressive Congress (APC) as the winner of the poll there have been varied reactions out in the public domain from several commentators. Of great interest, besides comments and observations on the several grave and substantial shortcomings in the conduct of the poll itself, has been the view canvassed that the results declared to return Bola Ahmed Tinubu as the winner fell short of the constitutional requirements required for a candidate to be declared winner, especially as it concerns votes from the Federal Capital Territory, Abuja. Bola Ahmed Tinubu of the APC is credited by the electoral commission INEC with having scored less than 25%) of the votes cast in the Federal Capital Territory Abuja. Some senior legal Practitioners such as Mr. Olisa Agbakoba SAN and Prof. Mike Ozekhome SAN have aired the view that the constitutional requirement has not been met and that Section 134(2)(b) of the Constitution demands that in addition to the spread of scoring not less than 25% of the votes cast in at least 24 States of the 36 States of the Federation, to be validly declared winner the candidate must have scored at least 25% of the votes cast in the Federal Capital Territory, Abuja. The eminence of these named lawyers among others has given wide coverage to this view among large segments of the populace especially on social media. Prof. Mike Ozekhome SAN has expended considerable ink and intellectual energy in articulating, or attempting to rigorously articulate, that position in an article titled “THE 25% OF FCT, ABUJA AS A LEGAL CONUNDRUM” SEE https:thelawyerdaily.com/the-25-of-fct-abuja-as-a-legal-conundrum/. And also his article FINDING THE BODMAS X IN THE MATHEMATICS OF 25% OF THE FCT, ABUJA which appears to be his rejoinder to the views expressed by Dr. Kayode Ajulo in which Ajulo expressed the opinion that the Supreme Court has already resolved the issue SEE AJULO’s article titled “PRESIDENCY: SUPREME COURT HAS RESOLVED FCT 25% QUNDARY https://theeagleonline.com.ng Prof Ozekhome has articulated that position in such a way that it is safe to treat him as its spokesman or chief intellectual protagonist and I will treat him as such in this piece. I agree that these eminent lawyers are no ordinary minds in the legal profession. They are great men. But I’m firmly convinced that the position they hold is wrong. I am reminded of one of my teachers during my philosophy undergraduate days who would say that “great men make great mistakes”. And that, I think, is the case here.

1.2     I agree with Ozekhome that the axiomatic presumption of democracy is the rule of the people. I agree with his opinion that the conduct and the declared results of the Presidential elections of 25^th February 2023 do not reflect the will of the people as postulated in Section 14(2) of the 1999 Constitution that sovereignty belongs to the people of Nigeria. I agree completely with his opinion that the 2023 Presidential elections significantly dwarf the general elections of 2007 in being fundamentally flawed and dishonest. I make bold to declare that in my opinion the February 25 2023 Presidential election was a “fraud in excelsis” practised on the Nigerian people by INEC and its complicit politicians. But I disagree with his thesis that winning at least 25% of the votes cast in the Federal Capital Territory, Abuja is a specific mandatory constitutional requirement under Section 134 of the Constitution for a due and valid return of a candidate as elected in a presidential election. He calls it a conundrum. I say it is not. The argument really is much ado about nothing. There really is no conundrum. The position they have taken is the result of a fallacious reasoning. It is a basic axiom of logic that you cannot derive a true conclusion from false premises.  If the premises are false, or one of the premises is false, then the conclusion cannot be true. That is exactly what has occurred in Ozekhome and Co’s argument. Their basic premise is false so their conclusion cannot be true.

1.3     Without attempting to be irreverent, I think that a lot of arguments in respect of this issue tend to be as laborious as they are unwieldy. I am reminded of the Sophists of ancient Greece who would wear their opponents out with words for the purposes of the argument. The Socratic antidote for that style was to be simple and precise and ensure that clarity is maintained. It is easy to get lost in the smoke of words and often the obfuscation of the issue can be the unintended, or sometimes intended, result. Having to make necessary reference to the provisions of the Constitution itself in an argument such as this issue necessitates already adds so much volume to the discourse. As best as I possibly can, I propose to maintain the Socratic simplicity herein. I believe that lawyers will as well appreciate the points, even if not clothed in the usual smoke of legalese. I deliberately chose this style too because I want my preferred argument to be accessible and intelligible to the layman, given the interest the question has generated following the elections as well as the several dangerous dimensions which I believe pushing the “mandatory 25% of FCT Abuja” position may assume if accepted as the correct position of the law; and also given the fact that many citizens because they are primarily concerned with the challenge of the impugned results of the presidential elections, have not given serious thought to the existential import and the dangerously unsavoury dimensions that attend their preferred and perceived low-hanging-fruit position which that “25% of Abuja argument” presents.  So, for starters I will phrase the question thus; Does the Constitution require a candidate to win at least 25% of the Votes cast in the Federal Capital territory, Abuja separate and distinct from the 25% required in two thirds of the States in order to be validly returned as the winner of the Presidential election? I think not, and my answer is No. The corollary question is “What is the meaning/ interpretation of the provisions of Section 134(2)(b) of the Constitution?

2.0   THE ANATOMY OF SECTION 134(2)(B)

2.1     For context, Section 134(2)(b) falls within CHAPTER VI of the 1999 Constitution dealing with “The Executive” and within Part I which deals with the “Federal Executive” of which the “A” segment is “The President of the Federation”. Section 130 establishes the office of President. Section 131 provides for the qualification for election as President. I wish to note right away that Section 131(4) provides that “for the purposes of an election to the office of President, the whole of the Federation shall be regarded as one constituency”.That provision is significant for the purposes of this argument as we shall point out later. Section 132 makes general provisions relating to the election of the president. Section 133 provides for a circumstance where there is only one candidate nominated and standing for the election to the office of President. Interestingly, the same provisions in respect of the territorial spread of votes cast and the same phrase of contention “and the Federal Capital Territory, Abuja” apply in this circumstance of a sole candidacy for the office. For ease of reference, I shall reproduce Section 133 hereunder.

Section 133.          A candidate for an election to the office of President shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election –

                   (a) he has a majority of YES votes over NO 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, but where the only candidate fails to be elected in accordance with this section, then there shall be fresh nominations.

While Section 133 deals with election where there is a single Presidential Candidate, Section 134 in turn deals with several circumstances where there are two or more candidates. The marginal note clearly states “Election: two or more Presidential Candidates”. Within that Section 134 are five sub-sections which deal with the several scenarios that could arise.  Section 134(1) deals with a circumstance where there are only two candidates; Section 134(2) deals with a situation where there are more than two candidates, Section 134(3) provides for a second election in the event that no candidate of the more than two candidates is duly elected because of a non-fulfillment of the conjunctive double conditions in the two paragraphs under Section 134(2). Section 134(4) provides for the time frame for this second election and contains the same bi-conditional for due return as elected to the office of President as between the two candidates standing for this second election.  Section 134(5) is the final resort providing for a third ballot in the event that there is no due return from the second election because of the non-fulfillment of Section 134(4). Worthy of note is the point that by sub- section 134(5) the threshold is lowered and the second condition, which I shall call the ‘2/3rds territorial votes spread clause”, is removed and no longer in the equation. The February 25, 2023 Presidential elections had more than two Presidential Candidates therefore, the section that is ad rem to our analysis is Section 134(2) which provides as follows.

Section 134(2 – A candidate for an election to the office of President shall be deemed to have been duly elected when 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.

2.2     Except for the presence of the phrase “and the Federal Capital Territory, Abuja”, sections 133 and 134 of the 1999 Constitution relating to the election of the President are essentially in pari material with Sections 125 and 126of the 1979 Constitution in respect of the same subject and the raison d’etre of the sections are as given by Professor Ben Nwabueze.  Professor Ben Nwabueze, a foremost Constitutional scholar, was among the 50 (fifty) person Constitution Drafting Committee that drafted the 1979 Constitution. He was also a member of the 1977 Constituent Assembly that debated and deliberated on the contents of that draft Constitution from which the 1979 Constitution emerged. So, in every sense Professor Ben Nwabueze can safely be considered one of the framers and fathers of the 1979 Constitution. The 1999 Constitution is fundamentally based on the 1979 Constitution both in philosophy, content and outcome such that the 1999 Constitution can be considered as essentially a minor progression or consequential amendment of the 1979 Constitution.  Professor Ben Nwabueze shed light on the rationale behind these sections relating to the election of the President in his book THE PRESIDENTIAL CONSTITUTION OF NIGERIA whereat p. 191 he states;

“The actual election of the president, contested or uncontested, combines two great principles – the principle of popular approval and that of territorial spread (ss.125 & 126). What this means is that the popular votes needed for the election of the president must be spread in a prescribed proportion across the frontiers of as many states as possible. The intention is that popular votes alone, even when they amount to a majority of votes cast at the election, should not enable a person to rule Nigeria as president if those votes are drawn almost entirely from a section of the country and not spread territorially across the frontiers of most of the states in the federation. Undoubtedly, by the combination of the two principles, victory at the election is made more difficult, but it is made deliberately so, in the hope of fostering truly national parties and encouraging coalition, alliance or accord among them.”

Under the 1979 Constitution section 125(b) and section 126 in all the scenarios with the second limb of the bi-conditional defined in the (b) paragraphs of its respective sub-sections were expressed thus:

(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.

Likewise, under the 1999 Constitution the sections 133 and 134 all the scenarios with the second limb of the bi-conditional defined in the (b) paragraphs of its respective sub-sections were expressed thus

(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.

Granted that the words of the subsection (b) limbs of the sections 125 and 126 of the 1979 constitution do not contain the words “and the Federal Capital Territory, Abuja” it is not difficult to see that the principle behind the (b) limbs of the bi-conditional in those sections of the 1999 Constitution is much the same and has the same raison d’etre which is territorial spread designed for the purpose of fostering national unity as explained by Professor Ben Nwabueze.

Which then brings us to the bone of contention; what is the import of the phrase “and the federal Capital Territory, Abuja” as included in the couching of the 1999 Constitution which said words were not present in those above-cited similar sections of the 1979 Constitution? Did the status of Abuja change under the 1999 Constitution from what was its position under the 1979 Constitution? And if it did change, what changed in it that would warrant the interpretation which the “mandatory 25% of Abuja” argument protagonists posit? Did the framers of the 1999 Constitution seek a radically different status for Abuja in respect of presidential elections; a status so radically different from what was envisioned under the 1979 Constitution? Or are the additional words “and the federal Capital Territory, Abuja” merely an attempt to be more precise in the description of the territory making up Nigeria following the subsequent enlargement of federating States up from the nineteen states of 1979 and the factual physical movement of the seat of the federal government from Lagos to the federal capital territory Abuja in 1991?

3.0     THE FEDERAL CAPITAL TERRITORY, ABUJA UNDER THE 1999 CONSTITUTION

3.1     It is safe to insist that those who urge or argue a different valency for the votes cast in the Federal Capital Territory, Abuja in the computation of winner and the valid return of a candidate as duly elected in a Presidential election must find the justification for that argument in the express words of the constitution itself. The conclusion that Abuja votes have that status must be clear and deducible too from the intrinsic character of the whole Nigerian State as a body politic created by the constitutional document and not urged from some long-winding extrapolation or reliance on the import of one conjunctive word, “and”. Considering the importance of the subject of the Presidency and Presidential elections in the whole scheme of the document itself, and the fact that the Constitution presents itself to be a democratic written constitution, that conclusion should not be drawn lightly because the implications and consequences of doing so are heavy. I submit that the express words of the 1999 Constitution do not support that contention; and the whole scheme of the 1999 Constitution itself including its basic assumptions and philosophy, especially as expressed in the CHAPTER II – Fundamental principles of State policy – weigh heavily against that interpretation. So, what exactly is the place and status of the Federal Capital Territory, Abuja under the 1999 Constitution? My thesis is that the status of Abuja under the 1999 Constitution did not radically change from what it was under the framework of the 1979 Constitution. The framers of the 1999 Constitution did not seek to create for the Federal Capital Territory, Abuja a status so radically different from what was envisioned under the 1979 Constitution. The inclusion of the additional words “and the federal Capital Territory, Abuja” in the sections relating to the Presidential elections including the contested Section 134(2)(b) was simply and essentially an attempt to be more precise in the description of the territory making up Nigeria following the subsequent enlargement of federating States up from the nineteen states since 1979 and the physical movement of the federal capital and seat of government to Abuja in 1991. The whole framework of the constitution itself, a comparative analysis between the preceding 1979 Constitution that laid the basic schemata which the 1999 Constitution followed, the loud absence of express words indicating such a drastic change in the electoral valency of the FCT Abuja, and the verifiable historical facts of our constitutional development give the lie to that argument and condemn it as incorrect.

3.2     The examination of the provisions of the 1999 Constitution and the preceding 1979 Constitution with some attendant comparative analysis sheds significant light. Immediately following the Preamble in the 1999 Constitution is Chapter I GENERAL PROVISIONS which very first Part – PART I – is captioned FEDERAL REPUBLIC OF NIGERIA. If one were to discern a prioritization in the manner the Constitution is arranged, one would find that the Constitution is structured such that the document begins with the most basic, fundamental and axiomatic provisions which set the ball rolling. Those provisions found, define and describe the Nigerian State. They also set its basic axiomatic tenets and principles.  Chapter I Part I has only three sections: section 1 which defines the supremacy of the Constitution; section 2 which defines, sets and spells out the composition of the Federal Republic of Nigeria, and Section 3 which defines and enumerates the geographical dimensions of the 36 Federating States and the Federal Capital Territory, Abuja. I repeat for emphasis that Section 2 of the CFRN, 1999 falls within that very first portion of the Constitution that is basically definitive of the Federal Republic of Nigeria. That is significant. Let me take the liberty to reproduce section 2 for ease of reference.

Section 2(1)          Nigeria shall be one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria.

(2)    Nigeria shall be a Federation consisting of States and a Federal Capital Territory.

Section 2 of the 1999 Constitution is essentially identical with the same section 2 provisions under the 1979 Constitution which provided as follows

Section 2(1)          Nigeria is one indivisible and indissoluble Sovereign State to be known by the name of the Federal Republic of Nigeria.

(2)   Nigeria shall be a Federation consisting of States and a Federal Capital Territory.

Section 2(2) of the 1999 constitution is key. Just like under the 1979 Constitution, it describes, delimits and defines the territory of Nigeria, what Nigeria encompasses; the geographical territory making up Nigeria. The States and the FCT are the territorial entities that make up and compose the territory and people of Nigeria. Section 3 of the 1999 Constitution defines the area marking the territorial limits of the 36 states; and also, the area marking the territorial limits of the Federal Capital Territory Abuja, in the same and identical manner as Section 3 did under the of 1979 Constitution for the 19 states and the federal Capital Territory, Abuja.

Note further that Section 3(5) provides, in exactly the same identical terms as under the 1979 Constitution thus:

“The provisions of this Constitution in part I of Chapter VIII hereof shall, in relation to the Federal Capital Territory, Abuja have effect in the manner set out thereunder” (EMPHASIS SUPPLIED)

Thus section3(5) in a real sense inaugurates and points to CHAPTER VIII, PART I as the portion of the Constitution dedicated entirely to the FEDERAL CAPITAL TERRITORY, ABUJA. That portion contains fairly elaborate provisions spanning Sections 297 to 304 which essentially provide for the governance structure of the Federal Capital Territory, Abuja in its special status as the federal capital territory and seat of the federal government. But very significantly, it does not contain anything at all about the nature of the Federal Capital Territory, Abuja’s voting or voter weight or status in a Presidential election.  Under the 1979 Constitution the same CHAPTER VIII, PART 1 contained the provisions Sections 261 to 264.  Section 261 is identical in wording – ipsissima verba as lawyers would say – with Section 297 under the 1999 Constitution. Section 262 is identical in wording with the current Section 298. Section 263 is identical in wording with the current Section 299. The current Section 300 is a rephrasing and amendment of the old Section 264 paragraphs (a) and (b) in respect of delimitation of Senatorial District and Federal Constituencies for the Federal Capital Territory. Then paragraphs (c), (d) and (e) of the old section 264 under the 1979 Constitution are now paragraphs (a), (b), and (c) of the current Section 301 under the 1999 Constitution.  The only fresh provisions which were added to that CHAPTER VIII PART I under the 1999 Constitution are; section 302, relating to the President’s power to appoint a minister for the FCT Abuja; Section 303, creating four (4) Area Councils for the administration and political structure of the FCT Abuja, and Section 304 creating the Judicial Service Commission for the FCT Abuja.

3.3     I have deliberately taken time with the comparative analysis in the portion above for the purpose of showing that in respect of the FCT Abuja, there is essentially nothing different under the 1999 Constitution from the provisions under the 1979 Constitution to suggest the status being argued in its favour by the “mandatory 25% of Abuja votes” protagonists.Clearly, as I have pointed out specifically in the foregoing paragraph above, the framers of the constitution made some discernible express changes to the text in respect of Abuja. It is legitimate Constitutional interpretationgiven this circumstance to conclude that the framers of the Constitution had no intention of giving the votes cast in Abuja a different value or configuration from that of the states of the federation. If the intention of the framers of the 1999 Constitution had been that the Federal Capital territory, Abuja would have the “joker card” status that Ozekhome argues for it, inserting a provision to that effect would have been easy – or should not have been difficult – to include expressly in the constitution and especially in that portion. If the framers of the Constitution intended Section 134(2)(b) among other such subsections dealing with the election of the President to have the meaning and the interpretation proffered by Ozekhome, the language would have been explicit thus:

“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 not less than one-quarter of the votes cast in the Federal Capital Territory, Abuja..

But there is no such expression. Therefore, it is not merely safe but imperative to conclude that this postulation is extraneous to the intention of the framers of the Constitution and absolutely outside their contemplation. It cannot be read in without doing harm to the Constitution itself.  Indeed, even more significant is that against this “mandatory 25% of Abuja votes” position, Section 299 which falls within this same Chapter VIII Part I buttresses the categorization of the Federal Capital Territory, Abuja as “one of a set”. It expressly provides categorically 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). . .

(b). . .

(c) The provisions of this Constitution pertaining to the matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this section.

If you study the whole section 299 you will note well, that all the matters in paragraphs (a), (b) (c), follow the imperative wholesale, all embracing, clause that the provisions of the Constitution shall apply to the FCT Abuja “as if it were one of the states of the federation”, and the particularized paragraphs are specifics that follow in accord with that all embracing provision.  Nothing can be more expressly mandatorily definitive. The fact that Abuja is to be treated as if it were one of the states of the federation is further underlined in the introductory clause of Section 301 providing thus “without prejudice to the generality of the provisions of section 299 of this Constitution in its application to the Federal Capital Territory, Abuja, .. .  followed by provisions in the said section 301 which go on to make adaptation of certain references in order to adapt the referenced offices and authorities for a State in a way they can apply to Abuja. The inescapable conclusion is that the Constitution deems the FCT Abuja as a member of the class of States. So, with 36 States and Abuja, the deemed member of the class, in terms of number of like entities we have a total of 36+ 1 equals to 37. 

One more thing that the protagonists of this position in issue have not factored in is the placement of the Sections 299 and 301 in the whole scheme of the constitution and its effect on interpretation of all things relating to the FCT Abuja vis-à-vis the States of the Federation.  Section 299 is later than 134. In the interpretation of Statutes, subsequent sections ordinarily modify earlier sections if there is an inconsistency (to the extent of the inconsistency) or doubt as to meaning; in the same way that later legislation are deemed to modify earlier legislation to the extent of the inconsistency. Applying the same principle, Section 134(2)(b) is inherently subject to the effect of Section 299, which said subordination is emphasized by Section 301.

3.4     Within the context of the foregoing constitutional framework, I take issue with Ozekhome’s contention that;

“Both sections 297 and 301 clearly donate all the attributes and powers of a state (Legislative, Judicial, Executive offices designation and powers to the FCT as a separate legal entity”.

as well as when he contends too as follows

“There is no ruckus or brouhaha with the clear provision of the courts as stated above. This is because the Constitution is clear on the separate and distinct status of the FCT. It is treated as any other state in Nigeria. Consequently, a community reading of sections 2(2), 3(1)(4), 297, 299, 301 and 302, shows that the contemplation of the draftsman was indeed to consider FCT as separate and distinct from any other State in the Federation”

I must comment that I find it interesting, amusing too I must confess, that Ozekhome keeps using the phrase “separate and distinct” when referring to Abuja as if by a repetition of that phrase one would arrive at a different position to justify the status he is claiming for Abuja with respect to votes in a Presidential election. But it really does not add much more than the obvious to the argument. What the sections 297 and 301 do is simply to give Legislative, Executive and judicial jurisdictions over Abuja to the Federal Legislature and Executive, and to create a judiciary for Abuja. That is one. Secondly, I find that his tendentious use of that phrase “separate and distinct” is actually at variance with the authorities he cited. The authorities expressly say that “it is as if Abuja is one of the States of the Federation”, and that is absolutely and clearly expressed in the Constitution. So, Abuja is sitting in the same class as the States of the Federation. So, the phrase “separate and distinct” has no magical quality to add to that classification even by manifold repetition. If anything, it is actually common to each of them sitting in the class of States. Abia is as “separate and distinct” from Imo, as Katsina is as “separate and distinct” from Kaduna, or as Lagos is as separate and distinct from Ogun. They are each as “separate and distinct” from the other as they all are separate and distinct inter se. But separateness does not put any of them outside the class or over and above the class designated in Sections 2(2) or 297, 299 or 301 and yet they are all sitting in one class as belonging to that class. How can that be so difficult to see?

I find it interesting that the commentators on this issue appeal to the interpretation principle that prizes fidelity to the words of expression in the statute or instrument that is the subject of interpretation. How they can subscribe to that golden rule and yet posit the kind of interpretation in respect of the FCT, Abuja which they are peddling is truly a wonder to me. The treatment of Section 134(2)(b) as referring to a class within which the FCT Abuja falls is most in consonance with the golden rule which is the prime canon of interpretation. I will quote in extenso the Supreme Court case of ATTORNEY-GENERAL, ANAMBRA STATE V. ATTORNEY-GENERAL FEDERATION (2007) ALL FWLR) PT. 379) 1218 at 1252, B-H where the Court (referencing with approval the entry on the consideration of words in Statutes in HALSBURY’S LAWS OF ENGLAND, 3^RD EDITION Vol. 32 pages 364 and 365) stated admirably the kernel of that Golden rule thus:

“The Golden Rule is that the words of an Act are prima facie to be given their ordinary and natural meaning, or. as is sometimes said, their proper meanings See St. John, Hanstood Vestry V. Cotton (1996) 12 App. Cas 1 at page 6 Per Lord Halsbury L.C; Wokes v. Dan Castar Amalgamated Collieries Ltd (1940) A.C. 1014, *1940) 3 All ER 549, at page 1022 and page 553 respectively per Viscount Simon L.C.,:

‘The rule has been in existence for many years and the classical statement of it is contained in the judgment of Wesley Dale in Grey v Pearson (1857) where he said;

“In construing Wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified so as to avoid that absurdity or inconsistency but no further”.

If the words of an Act are clear and explicit, they themselves are the best evidence of the intention of the legislature and no reference may be made to other sources of information”

The inescapable conclusion therefore is that the proper interpretation of the effect of Section 134(2)(b) is that the candidate to be returned as elected in a Presidential election must fulfill the territorial spread condition by having not less than one-quarter of the votes cast at the election in each of two-thirds of the number of 37 entities making up the federation. In this connection, the Supreme Court decision of 1979 in AWOLOWO V. SHAGARI which was decided when the entities in question were nineteen (19) in number would be instructive and helpful in determining what constitutes two-thirds of thirty-seven) 37 entities. Both 19 and 37 have a remainder of 1 when divided by 3.  But that is a matter for another day. It is not the issue we are addressing presently here. The issue we address here is whether there is a constitutional requirement that 25% of the FCT Abuja must be won to make a return in a Presidential election.  And we submit that the FCT Abuja must not mandatorily be part of that spread won for a valid return. If the required spread is met by a candidate in States qua states in exclusion of the FCT Abuja, the vote score in terms of territorial spread would still be sufficient under section134(2)(b) for a valid return.

4.0     THE ANATOMY OF A FALLACY

4.1     I already stated from the beginning of this piece that the “mandatory 25% of FCT Abuja” argument is the result of muddled thinking. False premises cannot give rise to a true conclusion. If the premises are false or one of the premises is false, the conclusion cannot be true. If the premises are incorrect or one of the premises is incorrect, the conclusion cannot be correct. That is basic logic. Anyone can fall victim to fallacy. Humankind’s tendency to fallacy is well documented by logicians and manifest in the history of thought and philosophy.  There are a number of false and mistaken ideas which form the premises of the argument this piece is aimed to counter. I begin with the one that appears to have caught the popular fancy and is most handy for protagonists of the 25% of Abuja argument. That fallacy is evident in Ozekhome’s piece cited above when he tries to present his argument in the following way and states for the purpose of example:

“If I request to see 24 lawyers in my law firm AND OKON, it means I must see 25 persons in all; but Okon must be one of the 25 persons. So if 25 persons in my law firm show up, without Okon, have I had all the persons I want to see? The answer is No. To satisfy my request Okon must show up in addition to the 24, thus making the 25 persons I desire to see.”

This is a fallacious argument. Logicians call is the fallacy of false analogy. It pretends to be the same kind of proposition as the requirements of section 134(2)(b) of the Constitution but in fact is not. This Ozekhome’s example is definitely not analogous to the Constitutional provision which it pretends to mimic. For an analogy to have effective logical force the operative items – subjects of the comparison – must have an essential similitude with reference to the quality necessitating the analogy. That similitude is the essence of that analogy. To be analogous means to have a sameness in the respect or quality which is the essence of evoking the similitude. If you check the meaning of the word “analogous” you will find terms like “similar”, “like”, “corresponding”, “equivalent”, “comparable”, “related”, “akin”, “parallel”. There is no such similitude here between the Constitutional provision and Ozekhome’s example. The capitalization on the word “and” is definitely not such a similarity for the essence of the argument. Juxtaposed on a propositional calculus or analysis, both statements, – that is, the constitutional provision and the Okon example above – do not match.  The Constitution speaks of fractions of a class of items. His example speaks of whole items plus an item. Furthermore, the excluded premise in Ozekhome’s “Okon example” is that his example does not include the definition that the Constitution has already given to what constitutes Nigeria and the status of the FCT Abuja as “one of a set”, an item in a collective, as already analyzed in the foregoing parts of this piece. Ozekhome’s “Okon example” also commits a second fallacy which logicians refer to as the fallacy of the straw man.  It is a smart ploy in an argument that distorts the issue, takes up a shadow (straw) of the real issues in the argument, smartly makes the fresh shadow (straw) “the opposing argument” as to pretend that the straw man is the real thing, then knocks down the shadow and states proudly, “I have knocked down your argument”, when in fact the essence has not been addressed.  Setting up a straw man and knocking him down is far easier than knocking downs the real man.

4.2     A careful reading of Ozekhome’s argument shows it is replete with several instances of the logical error of begging the question, described as petitio principi by logicians. Almost at every turn of the argument one finds him slipping the conclusion he is trying to arrive at into the premises that should ground the conclusion. That, in simple language is going around in circles. A few ready examples follow. Under part of his piece with sub-title ‘THE DEFINITION OF THE FEDERAL CAPITAL TERRITORY, ABUJA’ Ozekhome states thus:

“The Federal Capital Territory is defined in Part II of the First Schedule to the Constitution. The definition is in relation to Sections 3 (Chapter 1) and 297 (Chapter VIII) of the Constitution. Section 299 of the 1999 Constitution which is in Chapter VIII flows directly from the provisions of Section 297 of the Constitution. Section 299 of the Constitution states that “the provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the states of the Federation.” Part II of the Constitution also defines the FCT as a land area of its own, separate and distinct from the land mass of any other State.  Consequently, the 1999 Constitution has introduced a new dimension different from the 1979 Constitution by adding a further requirement of 25% in “and the Federal Capital Territory, Abuja.”

One wonders how this progression of sections provide premises for the conclusion that “Consequently, the 1999 Constitution has introduced a new dimension different from the 1979 Constitution by adding a further requirement of 25% in “and the Federal Capital Territory, Abuja.”.If anything, Section 299 of the Constitution actually puts the FCT Abuja within a class and makes it a member of that class, indeed expressly “as if it were one of the States of the Federation”. And then one wonders, is Ozekhome not aware that all these provisions of the 1999 Constitution he cited to justify his “separate and distinct” status for the Federal Capital Territory were already present in the 1979 Constitution?

Another one of the several instances of begging the question fallacy is under the part he sub-titled ‘CANONS OF INTERPRETATION VIS-À-VIS THE 25% CONUNDRUM’. Therein one would find this amazingly exotic piece of reasoning where Ozekhome makes this absurd leap to an equally absurd and unwarranted conclusion that does violence to the Constitutional provisions when he states;

“Thus, Section 134(2)(b) of the Constitution after generally stating all the States of the federation where the 25% requirement is a sine qua non for a presidential candidate to be deemed duly elected, rather than exclude the FCT, Abuja as one of the States of the Federation where the 25% is a requirement for a presidential candidate went further to specifically use the word “and” to include the FCT as one of the States of the Federation where the 25% is a sine qua non. It is settled law that the use of the word “and” is conjunctive in interpretation of Statutes. The implication is that after meeting the 25% requirements in 2/3 of the States of the Federation, the candidate must go forward to meet the said 25% requirement in the FCT, Abuja, before he can be deemed duly elected.” (UNDERLINING MINE FOR EMPHASIS)

In the first place, he is wrong when he argues that ““Thus, Section 134(2) (b) of the Constitution after generally stating all the States of the federation where the 25% requirement is a sine qua non for a presidential candidate to be deemed duly elected”. Of course, Section 134(2)(b) does no such thing. This makes another untrue premise that spots the landscape of Ozekhome’s argument and makes it fallacious. Section 134 does not generally state all the states of the federation where the 25% requirement is a sine qua non; what section 134 does is to reflect the percentage and the scope within the class of the entities that make up the federation and which form the ONE constituency for the contest. It is important to make the point that most of the arguments about the import of the word “and” are rooted in the wrong assumption and false consideration that Section 134(2)(b) is a listing and where there is a listing the word “and” individuates the operating initial phrase or clause to each item in the list. Note that in no part of the (b) subsections of Section 134 is the word “ÁND” placed in a list or series by the framers of the Constitution. And furthermore – this bears repeating – section 134(2)(b) certainly does not at all come close to “generally stating all the states of the federation where the 25% requirement is a sine qua non”.  It is clear, and ought to be from a contextual analysis and community reading of the express words of the Constitution that the word “and” preceding “the Federal Capital Territory, Abuja” in Section 134(2)(b) denotes a member of a collective. There is no listing in that Section 134(2)(b) so all that argument is diversionary waste-work. Section 134(2)(b) simply reflects the composite entity that is Nigeria. And it cannot be otherwise, because Section 131(4) of the 1999 Constitution provides that “for the purposes of an election to the office of President, the whole of the Federation shall be regarded as one constituency”.

4.3     Another interesting piece of this same fallacy of begging the question is where Ozekhome postulates that,

“What the law states is that the candidates must have 25% of votes in these states, and the FCT Abuja. The law does not contemplate that the candidate must win these States.  The jurisprudence behind these provisions is to ensure that the President as the Numero uno citizen of the Nation, enjoys a reasonable range of widespread acceptance by majority of the people he seeks to govern, including those inhabiting the seat of power where he would govern from”.

And I ask, from where does he deduce this jurisprudence of “including those inhabiting the seat of power where he would govern from”? Where is the basis of that postulation?  I submit that there is no such jurisprudence. It is a fictio mentis sine fundamento in re: a fabrication of the mind without any foundation in reality. So, one is bound to conclude from the tenor of the whole argument, that the basis for urging a mandatory requirement 25% of votes cast in the Federal Capital Abuja is essentially and fundamentally a sentimental one for which there is no basis in the Constitution. The same sentimental argument is evident in Ozekhome’s rejoinder to Dr. Kayode Ajulo in Ozekhome’s piece earlier referred to (Supra) where Ozekhome stated thus;

“The FCT, Abuja, is the political nerve centre of Nigeria. It has been imbued with such a special status as a miniature Nigeria in such a way that any elected president must have to compulsorily win the required 25% vote in the FCT, Abuja, after winning 25% votes in 24 states. The reasons for this are not far-fetched. FCT, Abuja, is the melting pot which unites all ethnic groups, tribes, religions, people of variegate backgrounds; and other distinct qualities and characteristics in our pluralistic society. It is indeed a multi-diverse and multi-faceted conglomerate of the different and distinct peoples of Nigeria, which according to Prof Onigu Otite, has about 474 ethnic groups which speak 530 languages. The FCT, Abuja, is thus regarded as the “Centre of Unity”, which is a testament to its inclusiveness of all tribes, religions, ethnic groups, languages and peoples of different backgrounds. Simply put, FCT, Abuja is a territory or land mass that is made up of individuals from every State and virtually from all the Local Government Areas in the country. It is itself made up of 6 Area Councils, quite distinct from the 768 LGAs in Nigeria, thus bringing the total to 774 LGCs in Nigeria. Consequently, scoring 25% of votes cast in the FCT, Abuja, is a Presidential candidate’s testament to being widely accepted by majority of the Nigerian people. The President is not expected to be a tenant in his seat of power. Will he pay rent to the 24 states he scored 25% votes? I do not know. Or do you?

I have quoted him in extenso for the purpose of making the error more manifest. Clearly, his argument is heavy on sentiments, but factually false and constitutionally unwarranted. It is a “wish list” for the Federal Capital Territory, Abuja: interesting ideals for sure that would make a case for a good speech on Abuja as a centre of unity. But where is all that in the Constitution? And I ask again, would it not have been simpler and more honest to make that “mandatory 25% of FCT Abuja” argument on a purely sentimental basis instead of canvassing it as mandated by the words of the Constitution when it clearly is not?

5.0     THE “MANDATORY 25% OF FCT ABUJA ARGUMENT” IS BAD LAW

5.1     The argument of Ozekhome and company is bad law. It is bad law not only because the interpretation is unsound and inaccurate, but more so because of its propensity to result and conduce to absurd and unjust outcomes.  That this proposed interpretation would negate the good of the Nigerian commonwealth is a most probable result. Some errors are easier to see when they are pushed to their logical conclusion. When an error is “writ large” the proportion of its monstrosity makes it easier to see; in the same way that zooming a camera lens makes facial pimples more apparent or when a microscope magnifies the dimensions of germs to make them more easily perceptible.  The extension of the 25% of FCT Abuja argument to its logical conclusion leads to a monstrous absurdity. The implications too are dangerously crisis ridden; as it is replete with embedded crises-generating germs. It is not difficult to imagine a scenario in the possible future where a candidate in a contested or even uncontested Presidential election wins a clear landslide majority vote including in the numbers cast for that candidate a quarter of all the votes cast in all the states of the federation but less than 25% of the votes cast in the Federal Capital Territory, Abuja. That, for emphasis is more than the required territorial spread.  In that circumstance the absurdity following the argument of Ozekhome and Co. is that the candidate ought not to be returned as elected simply because he or she won less than 25% of the votes cast in Abuja. Can anything be more absurd and out of tune with the raison d’etre for the provisions requiring territorial spread of votes for a return of a Presidential candidate as duly elected?If the intention of the framers of the constitution was to combine the principles of popular approval and territorial spread so that the President of Nigeria be elected by popular votes spread across the country, why would the same Constitution be interpreted to frustrate or short-circuit those principles by giving to one part of the federation a capacity to veto that carefully expressed and enshrined “wide territorial spread” objective? Is that not an interpretation that unjustifiably builds in a time-bomb and lays landmines for needless constitutional crisis in a country that is already and unarguably intrinsically crises prone? I submit that this interpretation proffered by Ozekhome puts the polity on a potential self-destruct mode such that it is most improbable that it had crossed any of the framers’ minds that such a construction was even remotely possible.

5.2     One does not need more than a scratch on the surface of Ozekhome’s pieces on this subject to find that the major premise of his argument is founded on a mistaken axiom of Abuja’s preeminence as the Federal Capital territory. That presumption founding his interpretation is far from the truth. There is nothing in our constitutional history to suggest the legitimacy of that dangerous and frightful interpretation. Nothing points to that pre-eminence or distinctiveness such as to justify such a construction for an extra valency in respects of votes cast in any capital of Nigeria as against the rest of the country. Constitutions, apart from being fundamental prime legal instruments, are even more essentially political instruments of legitimacy. Not only do they reflect political realities on the ground including the consensus that births the constitution (even if only theoretically), constitutions also represent an idea, a wish list, a promise – in the metaphor of Martin Luther King “a promissory note” – that the member participants in that body politic can use to stake a claim on it. The idea of Abuja’s preeminence runs against the grain of our constitutional law and does violence to the whole constitutional scheme built on a liberal philosophy of the equality of citizens and the idea that every part of Nigeria is sacrosanct as one indivisible and indissoluble country and citizenry It violates the equal citizenship of each and every Nigerian as well as all the directive principles of State policy as enshrined in CHAPTER II of the Constitution. The very idea itself is anathema to the equality of votes and the equal status of every part of the territory of Nigeria to which every citizen is entitled to inhabit in or move to, unimpeded by detriment, disadvantage or menace. The corollary is that no part of Nigeria can be specifically accorded an advantage in the weighting of votes without discrimination against the other parts of the country. Fear and favour are two sides of the same discrimination coin.

The trajectory of Abuja’s emergence as the Federal Capital Territory of Nigeria is part of our documented history. Calabar was Nigeria’s first capital city. It served as the first capital of the Oil Rivers Protectorate and Niger Coast Protectorate. It so served until 1906 when the administrative centre of the Southern Protectorate was moved to Lagos. Lagos was Nigeria’s capital at the time of the amalgamation in 1914. Abuja was selected to be Nigeria’s new capital in 1976 by the Murtala/Obasanjo Military regime in response to the overcrowding in Lagos. The plan was to develop Abuja over time before the eventual movement upon full development. The later evident unusual speed and hastiness to move the seat of government to Abuja even before the necessary infrastructure was completed was given impetus due to security concerns, some would call it properly a concern for regime survival, by the Military government of General Ibrahim Badamasi Babangida following the Major Orkar led coup attempt in April of 1990 in which Dodan Barracks the seat of government was heavily attacked. Commentators point to this context of regime survival as the existential context for the situation of the Presidential Villa in the Aso Rock fortress it currently sits in. Babangida moved to Abuja on December 12, 1991 declaring it the actual capital of Nigeria from that date. The population grew beginning with Federal Civil servants who followed their jobs, politicians followed power, then contractors and the rest of us followed the money.

The territory from which Abuja was carved out is in the North of Nigeria. Abuja is in Northern Nigeria. The predominance of the population is by demography as Northern as the territory itself. When you are in Abuja you are not left in any doubt that you are in the North of Nigeria. That is a fact. The dynamic of hegemony by Northern Nigeria over the rest of the country is an existential fact over which the oft-repeated complaints of marginalization by the other areas of Nigeria have grown more strident and virulent. Besides the rhetoric and sweet-talking about the status of Abuja as the place of unity, these are the bare facts, the truth we must face. The realpolitik of Abuja as practised and presented to us by the Nigerian “Deep State” reflects the reality that Abuja belongs to the North. Have we ever had a Minister of the Federal Capital Territory who was from the South of Nigeria? That is an interesting question. The answer is in the facts. The records show that the only time apart from the earliest conception and planning stage of 1976 to 1979 when Mobolaji Ajose-Adeogun was Minister for the Federal Capital Territory, Abuja, every FCT Minister has been from the North. From the time the seat of the government of the federation moved from Lagos to Abuja and Abuja became the operational Capital in 1991 there has never been a Minister of the FCT from the South. Significantly too, since the inception of the 4^th republic on May 29, 1999 till date, 24 years and running, every Minister of the FCT has been a Northerner, a male and a Muslim.  The most a Southerner can be and has been is a Minister of State; that is a junior minister. Those are the records. The implications are obvious. In effect, what the Ozekhome argument does is actually to add more “realpolitik” power to the North in a federation that is already constitutionally and structurally rigged to favour the North. To add a magical mix of a mandatory specific minimum of 25% of the votes cast in the Federal Capital Territory Abuja is to exacerbate an already testy arrangement in which some analysts have – not without justification – argued that the much-touted Nigerian unity is a fraud. Over the years there have been complaints of targeted ethnic violence and cleansing in the Plateau and some other areas in the North where all together thousands of lives have been lost and whole communities have been sacked. The recent 2023 general elections had cases of ethnic targeted violence as well: that of Lagos State as an instance is well documented. The proponents of the “mandatory 25% of FCT Abuja” argument are actually advancing an insidious position that, by turning the Federal Capital Territory Abuja into a “joker card” in the political game of thrones, has the potential of incentivizing a tendentious gerrymandering of the Federal Capital Territory by a government or political forces that may be so minded. It is a danger that cannot be dismissed with the wave of the hand: this country’s recent history of violence compels a prudent consideration of that danger. Several dangers that dot the landscape of this country today as a daily reality would have been unthinkable only a decade ago. Yet they are our reality today. Intelligent assessment includes the evaluation of implications. 

6.0     CONCLUSION

I have seen some commentaries and even material on social media where some persons have commented that a whole nation with tremendous human intellectual resource is spending its time debating the meaning of the word “and”. I have found that caricature amusing. Anyone who takes such remarks in any other way except as casual humour is clearly not familiar with the caricature of the medieval theologian debating how many angels can dance on a tip of a pin. The existential import and take-home from this debate about the provisions of Section 134(2)(b) is that a whole lot changed in this nation on February 25, 2023 in such a way that the Nigerian people feel a connection to that dynamic, and the Nigerian public is seriously interested in the outcome of the challenge to the return made by the INEC for that Presidential election.  That being said, magicalizing the single word “and” does not give a solution. Contextual analysis is proper to all interpretations. The existential import of interpretations or decisions is a valid consideration particularly where constitutional provisions are the subject of the analysis. I repeat for emphasis that intelligent assessment includes the evaluation of implications. And when implications throw up dangers that are backed by clear and present realities it makes prudent sense to pay attention. Any constitutional interpretation that endangers the constitution itself most certainly violates the fundamental principle of non-contradiction. 

Our position is that, given the context of the 1999 Constitution as a whole document, section 134(2)(b) presents no conundrum at all. It is clear enough that upon a proper interpretation the Federal Capital Territory, Abuja is one of a set. There is indeed nothing in the Constitution to suggest a pre-eminence or “priority of status” in the area that is the FCT Abuja or in the people or votes of the people occupying that piece of Nigeria’s territory.  If anything, it is the last of the enumerated components of the Federation. The Constitutional phrase in Section 299 “as if it were one of the states of the federation” is a phrase that is deeming in character and effect. That is significant language. It is a “deeming”, a “likening unto” a similitude in which the referenced quality/entity is a State and not the other way round. Abuja is likened unto a State, and not a State likened unto Abuja. The states have an ideation priority over Abuja. In ordinary terms of the intellection process, how then does that which is a secondary term linked to or indexed to a primary term or subject take priority over that to which it is referenced?

Every one agrees that the primary rule/golden rule in interpreting a statute is to apply the ordinary meaning, to do exactly what the words say, unless doing so would lead to an absurdity. No one has pointed out the absurdity, whether legal or factual that would result by treating the FCT Abuja “as if it were one of the states of the federation” which is precisely what the Constitution expressly mandates should be done. If the framers of the Constitution intended Section 134(2)(b) among other such subsections dealing with the election of the President to have the meaning and the interpretation proffered by Ozekhome, the language would have been express, explicit, unambiguous and precisely couched thus

“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 not less than one-quarter of the votes cast in the Federal Capital Territory, Abuja.

That phraseology is the only one and the only way that such a construction that would make Abuja “THAT distinct and separate” would have been justified. Couching it that way for clarity and precision would not have been difficult at all if it were so intended. But clearly it was not so intended. So, the Ozekhome interpretation of a “mandatory 25% of FCT Abuja votes” arrived dead on all grounds; dead all round without a breath of justification. The express literal words do not justify it; a community reading of the Constitution does not justify it; Judicial decision does not justify it; constitutional history does not justify it; political reality does not justify it; logic does not justify it and its propensity to absurdity tending to nothing less than a clear and present danger makes it absolutely bad law.

I rest my case.

Chibueze C. Okorie is a Legal Practitioner based in Port Harcourt. He is an author and also teaches Philosophy of Law at the Seat of Wisdom Seminary, Umuahia, an affiliate of the Pontifical Urbanian University, Rome. He can be reached via his email address [email protected]

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