Introduction
Last week, a former President of the Nigerian Bar Association (NBA) and current Chairman of the Board of Trustees of the NBA, Dr Olisa Agbakoba, SAN, wrote the Independent National Electoral Commission (INEC), requesting the ‘correct’ interpretation of certain Sections of the 1999 Constitution (as amended) that could determine who wins a Presidential election.
The Electoral Act 2022 states that “…the result (in an election to the office of the President or Governor) shall be ascertained by counting the votes cast for each candidate and subjected to the provisions of Sections 133, 134 and 179 of the Constitution, and that the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”
I must state for the record, that I don’t quite agree with this approach by the learned Senior Advocate, in that INEC is not a Court of law vested with powers to interpret the Constitution, unless of course, the Learned Silk was merely goading INEC to go and seek appropriate interpretation of the relevant sections in a court of law.
In his letter to INEC Dr Agbakoba, SAN, stated that he was worried that there could be multiple interpretations of Section 134 of the 1999 Constitution, which prescribed the requirements to be met by a Presidential candidate to become the President of Nigeria.
Section 134 of the 1999 Constitution
In case of an election with only two candidates, Section 134(1) of the 1999 Constitution states that a Presidential candidate shall be deemed to have been duly elected where he has “the majority” of votes cast at the election, and has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States and the Federal Capital Territory, Abuja.
But, in a case where there are more than two Presidential candidates, Section 134(2) provides that a candidate shall be deemed to have been duly elected where he has the “highest number” of votes cast at the election, and 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 my opinion, there is absolutely nothing ambiguous about this particular aspect of Section 134 of the Constitution in the slightest. In parliamentary and constitutional procedure, the term “majority” simply means “more than half”. In this sense, as it relates to a vote, a majority vote is more than half of the votes cast. In short, where there are two candidates the winner is expected to have more than 50% of the votes cast between them; but, when there is more than two candidates, he who secures the highest number of votes amongst the candidates is the winner.
The Senior Advocate of Nigeria also said Section 134 of the Constitution wasn’t explicit enough, as to whether the two-thirds votes a candidate must secure as mentioned in the Constitution would include or exclude the Federal Capital Territory (FCT), Abuja.
He asked if, to be declared winner of the Presidential election, a candidate must win a quarter of votes in 24 States – which makes up the two-thirds – as well as the FCT, or without the FCT.…does this mean that the Federal Capital Territory, Abuja is incorporated in the 24 States? Or…does it mean that the Presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?”
Once again this part of Section 134 of the Constitution is not ambiguous in my view. Section 134 (2)(b) of the Constitution specifically provides: “…….. and the Federal Capital Territory, Abuja”. It does not use the words inclusive. That implies that a candidate that scores not less than one-quarter of the votes cast at the election in 24 States of the Federation, but fails to score one-quarter of the votes cast at the election at the Federal Capital Territory cannot be duly elected as President of Nigeria. There isn’t much to debate here in terms of meaning, but can this be just? The subsection does seem rather absurd, in the sense that it implies that if a candidate manages to secure a majority of votes cast in an election and satisfies the requirement of securing one- quarter of the votes cast in two-thirds of the 36 States of the Federation, he or she might still not be eligible to become President, if he/she fails to secure one-quarter of the votes cast in the FCT. This seems to suggest that the FCT is of special status, and even more significant than a State. It would have been more appropriate to use the word “inclusive” of the Federal Capital Territory, Abuja instead of “…….. and the Federal Capital Territory, Abuja”. This subsection should therefore, accordingly be made subject to a constitutional amendment. Unfortunately, it is too late
for this to be done before next month’s Presidential elections. This is rather unfortunate, considering we have been operating the 1999 Constitution for about 24 years now, and a fundamental flaw of such magnitude is just being noticed.
Section 134 (3)
“In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidate shall be –
(a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and
(b) one among the remaining candidates who has a majority of votes in the highest number of States, so however that, where there are more than one candidate with a majority of votes in the highest number of States, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.
As earlier mentioned, the word majority is used and relevant where there are two candidates. Section 134(3)(b) itself seems to erroneously suggest that there could be more than one candidate with a majority of votes in the highest number of States. This can’t be correct. There can’t be two candidates with a majority of votes. As mentioned earlier, there can only be two candidates to be able to use the word majority, since you must exceed 50% for a simple majority. Section 134 (3) (b) therefore, is grammatically incorrect in constitutional and parliamentary terms and the draftsman ought to have used the word highest instead of majority, since there could be more than two candidates who qualify under Section 134 (3) ( b) of the 1999 Constitution ( as amended) The draftsman probably didn’t want to use the words …..has the highest votes in the highest number of States. He was probably avoiding using the word highest in the same sentence in two different contexts; but in trying to avoid this, he has left the section open to wrong interpretation.
Conclusion
Although inadvertent, Dr Agbakoba, SAN has perhaps, drawn our attention to what could turn out to be a highly significant issue in any Presidential runoff race. In strict legal parlance, a majority means at least 50% of the votes cast, and if this interpretation is strictly applied to Section 134 (3) (b) instead of the meaning attached to highest, then we could easily find ourselves in yet another constitutional stalemate, in the sense that there may be no outright winner under Section 134 of the Constitution; and neither might there be a runoff challenger to whoever emerges with the highest number of votes under Section 134(3)(a) of the Constitution if the strict interpretation of majority which ordinarily should mean at least half of the votes cast is adhered to. Since as we have already noted, this is the meaning given to majority and highest under 134(1) and 134(2) of the 1999 Constitution, why or how can we interpret Section 134(3)(b) any differently? In any case some Lawyers would argue and insist on this strict interpretation, and this could lead to yet another constitutional stalemate similar to the 1st Republic case of Akintola v Adegbenro & Anor – [1963] 3 All ER on the removal of a sitting Premier and the 2nd Republic 12 2/3 case of Awolowo v Shagari SC 62/ 1979. Since there is every possibility that this situation could actually play itself out, INEC would be well advised to seek legal interpretation in a court of law before the elections begin in just under a month’s time.
