By Chibueze Okorie
Legal Periscope made its debut on this stable on June 17, 2023, with a focus on part one of “Assessing the 25% of FCT Abuja Votes Argument – Much Ado about Nothing”. We furthered discussion on the same topic in a second part with focus on the “Federal Capital Territory, Abuja under the 1999 Constitution”, the “Anatomy of the Fallacy” among others. As we wrap up in this edition of the topic, you will read our presentation, “the Mandatory 25% of FCT Abuja Argument is a bad Law” as well as the “Conclusion”. Happy reading.
Continued from Tuesday, June 27
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 practiced 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 4th 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?
Everyone 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 chibuezeokorie@gmail.com GMTNews
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