It is now more than a month since the 2023 presidential election.
The election has been won and lost, and the certificate of return has been given to the winner, Bola Armed Tinubu of the All Progressives Congress (APC).  The date of inauguration of the new government has already been fixed for May 29, 2023, in line with the nation’s evolving democratic tradition. In preparation for this epoch- making event, the victor of February 25, 2023, jetted off to France for a well deserved rest after spending time in the political trench. It won’t be out of place to also assume that Nigeria’s president- elect spent the time to drink deep from the fountain of wisdom in order to lead the largest black nation on earth, with its numerous ethnic groups, gapping religious and tribal fault lines, and intractable security situation.

The pulse of the nation indicates an uneasy calm, but it is certain, at least from the utterances of the Peoples Democratic Party (PDP) flag bearer, Atiku Abubarkar, and his Labour Party counterpart, Peter Obi,  that there won’t be any major protest in the likes of the 2020 #EndSARS protest that brought the nation to its knees. Nevertheless, the unusual calm is a prelude to imminent legal fireworks, the likes the nation has never witnessed before. Already, the first runner up, Atiku Abubarkar of the PDP, and third place Peter Obi of the Labour Party have set the stage by filing their petitions at the presidential elections tribunal sitting in Abuja.The petition of the Labour Party and its candidate has five prayers; however, the second prayer is of particular interest in this discuss, and it reads as follows: “That it be determined that the 2nd Respondent having failed to score one-quarter of the votes cast at the Presidential election in the Federal Capital Territory, Abuja, was not entitled to be declared and returned as the winner of the Presidential election held on 25th February 2023.”

It is clear that the impetus for this second prayer derives from Section 134(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and particularly sub-paragraph (b) which provides that: “ A candidate for an election to the office of the 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 in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”It is very surprising, but in any case, very interesting that the conjunction ‘and’ has been at the centre of the argument even before the President -elect was announced. In a very funny way, the ‘and’ puzzle reminds me of the case of the blind men and the elephant. For one, the animal was a long tail, for another it was a tux, yet for another, it was a very large ear, and so on. However, the elephant in this case is the constitution, and there are no blind men, rather learned men who go by the highly exalted title: Senior Advocate of Nigeria (SAN) – and they are poised to put multifarious explanations to flight.

The law has no emotions, but we can be rest assured that the legal luminaries on both sides of the isle are set to make the elephant dance. But before the real fireworks begin, some of the renowned  legal minds of our time are already thrilling anxious Nigerians with their own interpretation of Section 134(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), particularly sub-paragraph (b) which is the bone of contention. Most of them have been on TV and other platforms recently to help unlearned men like me make sense of the import of the conjunction ‘and’ as it is used in this particular statement: “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.”In their argument regarding this portion of the constitution, there is a point of convergence; however, there is also a sticky point of departure where the mathematics of the Constitution pitched them in diametrically opposed positions.

They are all in agreement, that Section 299(1) of the Constitution, which provides that the provisions of the Constitution shall apply to the Federal Capital Territory (FCT), as if it were one of the States of the Federation, with the implication that even though the FCT is not a state in the real sense, it is regarded as the 37th state.
For instance, Femi Falana, SAN, argues that by the combined effect of Sections 134 and 299 of the Constitution, a candidate shall be deemed to have won the Presidential election if he scores the highest number of lawful votes cast at the election, and 25% of lawful votes in 37 States or 36 States plus the FCT – stating that it is not compulsory, for a Presidential candidate to win the FCT. In fact, he went further to state that the FCT, is not the Electoral College of the Federal Republic of Nigeria. In support of this position, Professor Taiwo Osipitan, SAN, inferring from myriad legal precedence averred that that the FCT is part of the two-third spread contemplated in Section 134 of the 1999 Constitution.

With the intent that a candidate who has the highest number of votes and satisfies the 25% spread in not less than two-thirds of the States including FCT, is entitled to be declared the winner of the election, irrespective of the percentage of votes scored in the total votes cast in FCT.
Interestingly, and in line with the position that it is not compulsory for a presidential candidate to Win 25% of the votes at the FCT, Aikhunegbe Anthony Malik, SAN, argued that those who are offering an alternative interpretation of Section 132 (2) of the constitution to the effect that acquiring 25% of votes in the FCT is a compulsory requirement to be declared winner seem to overlook the essence, or significance of the conjunctive word ‘and’ employed therein. According to him, whenever the word ‘and’ is employed in law, “it denotes a conjunctive, and never a disjunctive meaning.”

Unfortunately, the above arguments are not caste and dry, because legal heavy weights like the former President of the Nigerian Bar Association, Dr. Olisa Agbakogba, SAN and Chief Mike Ozekhome CON, SAN, contend that, for a candidate to be declared winner of the presidential election it is imperative that he or she must acquire at least 25% of the votes cast in the FCT.
In his argument, Dr. Agbakogba opined that the literal interpretation of this section of the constitution is that a candidate must secure 25% of votes cast in 2/3rd of the entire 36 States of Nigeria and 1/4th (25%) of votes cast in FCT. According to him, the provision is clear, direct and unambiguous, such that you don’t need a Professor of Constitutional Law to comprehend.

He further maintained that the use of the word “and” had been held by the Supreme Court to be conjunctive, which implies that the conditions in Section 134(2)(b) are conjunctive and mandatory. Therein lay the riddle, because, Aikhunegbe Anthony Malik, SAN supported his argument with the conjunctive use of ‘and’ when employed in the constitution, as opposed to being disjunctive, but he arrived at a different conclusion.  Similarly, even though Section 299 of the constitution formed a critical part of both arguments (which states that the FCT is to be treated as a State in Nigeria), Dr. Agbakogba posits that it is a general provision that has no bearing on Section 134. Hence, he concludes therefore that A general provision cannot override a specific provision – implying that since Section 134(2)(b) is a specific provision on the conditions for declaration of a candidate and the presidential winner at the polls, with the result of the general elections as published by INEC, the contest is still open, as none of the candidates has satisfied the legal threshold in Section 134.

Lastly, Chief Ozekhome has also asserted that by a judicial mathematical analysis, 2/3 of 36 States is equal to 24 States, and in addition, the FCT, Abuja. To buttress his position, he gave this analogy: “if I request to see 24 Corpers in my law firm And Okon, it means I want to 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. According to him, the jurisprudence behind this provision is to ensure that the President as the number one citizen of the Nation enjoys a widespread acceptance by majority of the people he seeks to govern, including those inhabiting the seat of power where he would govern from. Evidently, the letter of the law is the same, and available all, some interpretations are the same, yet renown legal pundits have arrived at different conclusion, thereby setting the stage for an interesting legal fireworks that promises to put this matter to rest once and for all when the Supreme court makes its pronouncement.

Nigerians are eagerly waiting for the legal fireworks to begin; the petitioners, namely Atiku Abubarka and the PDP, and Peter Obi and the Labour Party are ready. The President Elect and APC should be getting ready, we believe; but  while Nigerians are unaware of the size of the war chest the President Elect and his party are putting together to defend their mandate, the Independent National Electoral Commission (INEC) has come out to tell Nigerians that after spending more than N300 billion to conduct the 2023 general elections, it has now allotted another N3 billion to defends its declared results.  As you can imagine, the Nigerians are about to witness a legal clash of the Titans. Let it begin.

By: Raphael Pepple