ASSESSING THE 25% OF FCT ABUJA VOTES ARGUMENT – MUCH ADO ABOUT NOTHING (1)

LEGAL PERISCOPE (Maiden Edition)

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

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 –

• 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

• 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?

To be continued…

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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: chibuezeokorie@gmail.com