Does Section 134 (2)(B) Of The Constitution Intend To Discriminate Against Non-FCT Voters?

By Oluwaleke Atolagbe

After the announcement of the winner of the 2023 Presidential election, some persons including Legal Practitioners have attempted interpretation of Section 134 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (the Constitution). The said Section which prescribes two major Constitutional requirements for a Presidential Candidate to be declared a winner in a Presidential election in Nigeria provides:

134.(2) A candidate for an election to the office of President shall be deemed to have been duly elected where there being more than two candidates for the election-

(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 of each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

Given that the Presidential Candidate that was eventually declared winner and President-elect though garnered the highest number of votes cast and more than one-quarter of the votes cast in well more than two-thirds of the 36 States of the Federation did not have up to one-quarter of the votes cast in the Federal Capital Territory the attention of the debaters on this Section, expectedly is on whether for a Presidential Candidate to be declared winner he must compulsorily have one-quarter of the votes cast in the Federal Capital Territory.

Some have argued that the Constitution intends that having one-quarter of the votes cast in the Federal Capital Territory is a sine qua non for any Presidential Candidate to be declared a winner even if such Candidate has more than one-quarter of the votes cast in more than two-thirds 36 States of the Federation while others are of the view that a Candidate does not need to have had one-quarter of the votes cast in the Federal Capital Territory to be declared a winner if the said Candidate already had one-quarter of the votes cast in more than two-thirds of the 36 States of the Federation.

With respect to several eminent commentators, the interpretation that a Presidential Candidate must have one-quarter of the votes cast in the Federal Capital Territory in addition to other requirements for such a Candidate to be declared a winner is grossly absurd and in fact against other provisions of the Constitution itself. If Section 134 (2) of the Constitution is interpreted to mean that a Presidential Candidate must have at least one-quarter of the votes cast in the Federal Capital Territory then this will surely be violating the express provision of Section 42 (1) of the same Constitution as this would subject citizens of Nigeria in the 36 States of the Federation to disabilities or restrictions based on the communities they live in and their political opinions.

Likewise, such an absurd interpretation would also accord citizens of Nigeria in the Federal Capital Territory privileges or advantages over citizens of Nigeria in the 36 States of the Federation based on the communities they live in and their political opinion. Section 42 (1) of the Constitution provides for instance that:

42. (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:–

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

Interpreting the provision of Section 42 (1) of the Constitution, the Supreme Court noted in LAFIA LOCAL GOVT v. EXECUTIVE GOVT NASARAWA STATE & ORS (2012) LPELR-20602(SC):

“By the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or be accorded either expressly by or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions. And no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth. See; Section 42 of the Constitution.” Per OLUKAYODE ARIWOOLA, JSC (Pp 55 – 56 Paras F – D)

The Respondents, in this case, were civil servants in Nasarawa State but were redeployed based on a government policy from Lafia Local Government Area to Nasarawa Edgon Local Government Area on the ground that after screening they were found not to be from Lafia Local Government Area. The Supreme Court found that they were discriminated against based on their ethnicity or their place of origin. The Supreme Court further held in the case thus:

“There is no doubt about it that in the due interpretation of the provisions of the Constitution which is the ground norm, the Court should embark upon broad interpretation more especially when same relates to the fundamental rights of the citizen. The Court should employ a liberal approach or take what is often called a global view. This is so as the rights of the citizen must not be toyed with under any guise. See: Rabiu v. The State (1980) 8-11 130 at 151, 195. Furthermore, related sections of the Constitution ought to be interpreted together so as to produce a harmonious result. See: Senator Abraham Adesanya v. President of the Federal Republic & Anr (1981) 5 S.C. 112 at 134, 321; Akaighe v. Idama (1964) 1 All NLR, 322.”

The Apex Court further noted:

“Courts should assume an activist role on issues that touch or concern the rights of the individual and rise as the occasion demands to review with dispatch acts of Government or its agencies and ensure that the rights of the individual guaranteed by the fundamental rights provisions in the Constitution are never trampled on.”

One thing that is obvious from the decision of the Supreme Court is the high pedestal on which the Courts are to hold the Fundamental Rights of persons in Nigeria. It would therefore be absurd for the provision of Section 134 (2) of the Constitution to be interpreted to defeat or violate the provision of Section 42 (1) of the same Constitution especially when the provision of Section 42 (1) relates to the fundamental right of citizens which is held in the higher pedestal.

It is important to further note that there are other provisions of the same Constitution that point to the fact that all voters in Nigeria are intended by the drafters to be equal and not for some to be more equal than others. Section 132 (4) and (5) of the Constitution provides:

132. (4) For the purpose of an election to the office of the President, the whole of the Federation shall be regarded as one constituency.

(5) Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of President.

Similar provisions relating to the Governorship election are contained in Section 178 (4) and (5) of the Constitution. Sections 77 (2) and 117 (2) of the Constitution prescribe who can vote at the election of members of legislative houses as Nigerian citizens that are 18 years of age and above.

If Section 134 (2) is intended to be interpreted to mean that for a Presidential Candidate to be declared winner in an election he must have one-quarter of the votes cast in the Federal Capital Territory then a similar provision would have been made in respect of State Capitals. However, no such provision is contained in Section 179 (2) which prescribes similarly that for a Governorship Candidate in a State to be declared a winner in an election he must inter alia have one-quarter of votes cast in at least two-thirds of the Local Government Areas of the State. Since Local Government Area(s) always form the State Capitals there is no need to separate State Capitals or specifically mention such in the Constitution as done in respect of the Federal Capital Territory which is not a State and needs to be mentioned separately.

Furthermore, Section 299 of the Constitution provides:

299. 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) all the legislative powers, the executive powers and the judicial powers vested in the House of Assembly, the Governor of a State and in the courts of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of the foregoing provisions are courts established for the Federal Capital Territory, Abuja;

(b) all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution; and

(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.

From this provision, it is clear that for the purpose of the Presidential election, the Independent Electoral Commission would only regard and treat the Federal Capital Territory as the “37^th State” of the Federation.

It is my humble view that Section 134 (2) of the Constitution does not intend to create out of the Federal Capital Territory super voters whose votes would be worth more than that of voters in the 36 States of the Federation and interpreting the Section this way would discriminate against voters in the 36 States of the Federation.

By Oluwaleke Atolagbe, ACIArb (UK) Legal Practitioner and Notary Public, Abuja, Nigeria, 08032411227, 08156164057

Source:TNL