The Two-Third Majority Rule In Presidential Elections In Nigeria

By Osigwe Ahmed Momoh

Section 134(1) (b) of the 1999 Const. (as Amended) places an onerous task on a presidential contestant, demanding that not only would he have more votes, but he will also have to have at least one-quarter (25%) of all the votes cast in all the states of the federation and the FCT.

Now this seemingly comprehendible provision has come under immense scrutiny, owing to the heated nature of the ongoing 2023 Presidential elections.

For those of us who have refused to gain mastery in mathematics, since Nigeria has 36 States, 2/3 of states would simply be 24 states. Most Political actors over the years have held on to the 24 states rule.

The issue for determination now is, ‘does the constitution demand 25% in 24 states or 25% in 25 states with or without the FCT; in other words, if a contestant has 25% in 30 states excluding the FCT has he met up with this stringent constitutional demands?

For an answer to this, we may need to reproduce the entirety of section 133(b).

has not less than one-quarter if the votes cast at the election in each of at least two-thirds of all states in the Federation AND the Federal Capital Territory, but where the only candidate fails to be elected in accordance with this section, then there shall be fresh nominations. (Emphasis: Mine)

The crucial word in contention is ‘AND’. I am sure very few people have ever paid attention to this everyday word, yet this word may very well be in the centre of our political balance.

From the exit polls making the rounds, only one party scored more than 25% in the FCT so we understand the sudden interest in this inconspicuous word.

Gladly the Court of Appeal in DASUKI v. DIRECTOR GENERAL STATE SECURITY & ORS (2019) LPELR-48113(CA) dissected the meaning and usage of the word when it held that “In ordinary usage, the word “and” is a conjunctive. Black’s Law Dictionary 6th Edition, described the word “and” as “A conjunction connecting words or phrase expressing the idea that the latter is to be added to or taken along with the first. Added to; together with, joined with as well as, (Emphasis Mine)

The word AND is remarkably different from WITH. With suggests a fusion or marriage. Without a doubt, the mischief rule of interpretation is apposite in understanding and dissecting the intentions of the drafters. In simple terms, what was the mischief that was intended to be cured by this provision?

The answer is clear and unarguable. The constitution needs a candidate with a national spread that reflects acceptance in different areas of the nation; therefore the constitution is looking for bridge builders and not a local champion.

The argument for 25 States with or without getting 25% of the FCT takes root in Section 299 of the Constitution which reads ‘the provision of this constitution shall apply to the Federal Capital Territory Abuja as if it were one of the States of the Federation’.

The weakness of this argument however is that it seems to be ever-stretched. Without a doubt, the entirety of Chapter VIII of the constitution, centres on the general legal framework and administration of the FCT.

The Courts had held time without numbers that when a specific and a general provision of the law conflict the general bows for the specific. Generally, Abuja should be administered as a state; this provision cannot take precedence over specific provisions. See Ibori V Ogboru (2004)15NWLR  (PT 895). Whereas the FCT  is generally seen as a state, that provision does not in any way obviate section 134 (1)(b), otherwise, the section would very easily read, ‘the whole of the Federation’  as was the case in Section 132 (4).

The argument that 25% in 25 States will cut it, further falls on its face when compared to section 134(3)(b) nowhere was FCT remotely mention when dealing with the contestants that had scored the highest number of votes in States.

The Supreme Court in Orakul Resources Ltd & Anor V NCC & Ors. (2022) LPELR 56602 (SC) held that  ‘in the construction of a statute, all the provisions dealing with the subject matter and the overall context, the intendment or purport of the stature are to be considered together, holistically and not in isolation in order to identify the real intention of the legislature. Section 130 -134 of the Constitution must be given a compound interpretation to adequately sieve the spirit of the law.

What then is the spirit of the law? Well, it becomes discernable if we understand that the Federal Capital Territory was purposefully created as a melting pot of all cultures and people of the nation; Abuja is in effect a microcosm of Nigeria hence the voters in Abuja would largely reflect the will of the totality of Nigerians. Consequently, it makes sense that Abuja is seen as a special requirement by itself and not lumped with other states.

I have often argued that Nigeria is not a strict democratic nation, social justice is as important as democracy in line with section 14 of the constitution. Our nation is founded on Democracy AND Social Justice.

It is my settled understanding that any candidate who fails to score 25% in 24 states as well as 25% in the FCT has fallen short of the constitutional requirement and cannot be declared the winner of the election regardless of the number of votes that he might have acquired

Source: TheNigeriaLawyer