The nation went through a somewhat complex and controversial Presidential election on February 25, 2023, and the candidate of the All Progressives Congress, Senator Bola Ahmed Adekunle Tinubu, who was declared winner by the Independent National Electoral Commission (INEC) has since been issued his Certificate of Return. It has become the norm, that practically every election in Nigeria is contested in court. The 2023 Presidential election, is no different. Two of the other leading candidates in the contest, have since proceeded to court to commence the process of challenging Tinubu’s victory at the polls. The present debate amongst legal pundits, is whether a Presidential candidate must score at least 25% of all the votes cast in the Federal Capital Territory, Abuja (FCT), aside from the other two conditions precedent, to be declared winner of an election. INEC’s declaration of Tinubu as the winner of the Presidential election, clearly evinces the fact that the electoral body doesn’t believe that 25% of the votes cast in FCT must be secured to win. The Cross-Fire in this Special Edition, is on the interpretation of Section 134(2) (b) of the 1999 Constitution of the Federal Republic of Nigeria, which makes provision for this issue. Dr Olisa Agbakoba, SAN; Femi Falana, SAN; Distinguished Professor Taiwo Osipitan, SAN; Aikhunegbe Anthony Malik, SAN; Chief Mike Ozekhome, SAN; Dr Sam Amadi, Kingsley Idahosa and Osigwe Ahmed Momoh cross-fire as they give their various interpretations to the aforementioned constitutional provision, and their answers to this burning question
25% of FCT Votes is Constitutionally Compulsory
Dr Olisa Agbakoba, SAN
Section 134(2)(b) of the 1999 Constitution (as amended) is clear and unambiguous, direct and simple.
To be declared Presidential winner, a candidate must secure at least 1/4th (25%) of votes cast in 2/3rd of the entire 36 States of Nigeria (that is in 24 states). Also, the candidate must also secure not less than 25% of the votes cast at the FCT.
The literal interpretation of this section is that a candidate must secure 1/4th (25%) of votes cast in 2/3rd of the entire 36 States of Nigeria and 1/4th (25%) of votes cast in FCT. This provision is so clear, direct and unambiguous, that you don’t need a Professor of Constitutional Law to comprehend. 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.
Resort to Section 299 (which states that the FCT is to be treated as a State in Nigeria), is a general provision that has no bearing on Section 134. A general provision cannot override a specific provision. Section 134(2)(b) is a specific provision on the conditions for declaration of a candidate and the presidential winner at the polls.
In conclusion, 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.
Dr Olisa Agbakoba, SAN, former President of the Nigerian Bar Association
It Is Not Compulsory for a Presidential Candidate to Win 25% of FCT
Femi Falana, SAN
Section 299(1) of the Constitution 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. It means that, the FCT is the 37th State.
So, Section 134 of the Constitution which provides that “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 FCT” means 25 States or 24 States plus the FCT. Winning the FCT by a candidate, is not compulsory.
In Baba-Panya v President, F. R. N. (2018) 15 NWLR (Pt. 1643) 395 the Court of Appeal held inter alia:
“It is therefore, doubtlessly clear that by virtue of Section 299 of the Constitution of the Federation, the Federal Capital Territory is in law a State. In others words, the Federal Capital Territory should be treated as one of the States in the Federal Republic of Nigeria. It follows therefore, that bodies like the Federal Capital Development Authority are to be regarded as an agency of “a State”, independent of the Federal Government. It would appear that the only relationship existing between the Federal Government and the Federal Capital Territory, is that its executive and legislative powers and duties are exercised for it by the President through the Minister of the Federal Capital Territory and the National Assembly respectively. From the provision of Section 299(a), where the President through the Minister of the Federal Capital Territory Acts, he does so as a Governor of a State, so also where the National Assembly legislates for Abuja, it does so as a State House of Assembly”.
Thus, 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. It is not compulsory, for a Presidential candidate to win the FCT.
The FCT, is not the Electoral College of the Federal Republic of Nigeria.
Femi Falana, SAN
You Don’t Need 25% of FCT Votes to Win
Distinguished Professor Taiwo Osipitan, SAN
Section 134 of the 1999 Constitution has suddenly occupied the centre stage, in the decision on who should be declared as the winner of the Presidential election. The pith of the controversy, is whether in determining the required spread of two-thirds of the States of the Federation, the FCT is to be included or excluded. It is being contended that a candidate who, for example, scores at least 25% of votes cast in 25 or more States of the Federation and has the highest number of votes, must still score not less than 25% of the votes cast in the Federal Capital Territory.
I am of the opinion that FCT is part of the two-third spread, contemplated in Section 134 of the Constitution. The word ‘and’ which appears immediately after the word Federation and before Federal Capital Territory conjoins FCT with the States, as to make FCT part of the two-third spread. Had the word ‘in’ featured immediately after the word ‘and’ in the section, the argument of proponents of separate treatment of FCT may have been stronger.
It seems to me that proponents of separate treatment of FCT, are interpreting Section 134 of the Constitution in isolation of other relevant provisions of the same Constitution. FCT is like a State, but definitely not a State. FCT is the Federal Capital. It is not the capital of any State, the way Ikeja served as capital of Lagos State when Lagos was the Nation’s capital. FCT has no State or Deputy State Governor. The executive powers of FCT vests in Mr President. FCT also has no separate legislative body. National Assembly legislates for FCT.FCT is also not one of the 36 States of the Federation listed in Section 3(1) of the 1999 Constitution. Unlike States that have Local Governments, FCT has six Area Councils. Finally, while each State has three Senatorial seats, FCT has only one. FCT is not superior to the States, as to justify being accorded separate status. Section 299 of the Constitution, is designed to bring FCT to the same level with the States. The section certainly does not confer on FCT a separate and superior status, as being argued by protagonists of separate treatment of FCT.
It is gratifying, that the non-separate and non-superior status of FCT was confirmed in the case of Ibori v Ogboru (2005) 6 NWLR part 920 page 102, where it was held that “..the Federal Capital Territory is to be treated like a State, it is not superior or inferior to any State of the Federation”.
In view of the above, it is clear that FCT is part of the two-third spread contemplated in Section 134 of the 1999 Constitution. 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, even if he is unable to score at least 25% of the votes cast in FCT.
Distinguished Professor Taiwo Osipitan, SAN
Time to Halt Strained Interpretation of Section 134(2) of the 1999 Constitution
Aikhunegbe Anthony Malik, SAN
Lately, there has been a spate of opinions on the correct interpretation of the provisions of Section 134(2) of the 1999 Constitution, which encapsulates the legal requirements or conditions precedent that a candidate must satisfy before he can be declared by the Independent National Electoral Commission [INEC] and returned as the winner of the election to the office of President in Nigeria.
I will, at the expense of verbosity, but borne out of necessity, reproduce the ipsissima verba of Section 134(2) (a) & (b) thus:
“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 in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”
The foregoing constitutional provisions, represent the epicentre of varying interpretations and seeming unending arguments to which I have, in accord with the tenets and spirit of the law, accorded a merciless scrutiny.
Interpreting Constitutional Provisions
It is prudent to preface this intervention by stating that, the approach of the courts to the construction of the provisions of the Constitution has always been one of liberalism. Thus, the courts usually avoid a construction which will defeat the obvious ends that the Constitution itself was designed to serve. More often than not, the courts embrace the construction which accords and is consistent with words and sense. See United Agro Ventures Ltd. v FCMB Ltd. (1998) 4 NWLR (Pt. 547) 542 at 559. See also Fawehinmi v IGP (2000) 8 NWLR (Pt. 665) 481 at 528 where the Supreme Court stated that: “In its construction, the Constitution which is a living organism must be given its natural ordinary meaning and the words must be given purposive construction”. Also in Buhari v Obasanjo (2003) LPELR – 813 (SC), Belgore, JSC [as he then was] posited as follows:
“The Constitution should never be read to say what it has not provided, even though it should be liberally construed to giving meaning and effectiveness, so as not to have embarrassing anomaly that can result in vacuum of any office or cause serious crisis in the polity. The Constitution, I must point out, is a general statement of how Nigerians wish to be governed, and the real way of governing will be found in all the laws, body of laws, that comply with the Constitution”.
No Ambiguity in the Provisions of Section 134(2) of the Constitution
It is submitted that there is no ambiguity in the provisions of Section 134(2) of the 1999 Constitution. Accordingly, the furore that have been generated regarding the proper or correct interpretation thereof, are completely misplaced. The words used in the section are clear, lucid, unambiguous, and they clearly evince the intention of the draftsmen. The reference to the FCT in the provision, is clearly indicative of the unimpeachable fact that the territory is treated as part of the constituent units from where a candidate who is desirous of being declared the winner of the presidential election in Nigeria can amass, at the very least, one-quarter, that is, 25%, of the total valid votes cast at the election.
It, therefore, imports a serious remiss, for anyone to contend that the mention of FCT in the section implies the erection of an additional constitutional hurdle that must be dismantled by a candidate. I do not see any court of law that will be persuaded by such argument.
In point of fact, the provisions of Section 134(2) of the Constitution fell for consideration and determination by a full panel of the Apex Court in Buhari v Obasanjo (2005) All FWLR (Pt. 273) 1, aeons ago! In a unanimous judgement of the court, it was held that the purport of the provisions is simply to ensure that a winning candidate should have the required majority. The court stated further that once a candidate attains such majority, the requirement of the section is/are fulfilled.
Those who have suggested the strained interpretation of Section 134(2) to the effect that a successful Presidential candidate must secure 25% of the votes in at least two-third of the 36 States and, as well, secure an additional 25% of the votes cast in the FCT, seem to overlook the essence or significance of the conjunctive word ‘and’ employed therein. In law, whenever the word is employed, it denotes a conjunctive, and never a disjunctive meaning. See Yusuf v Obasanjo (2006) All FWLR (Pt. 294) 387 at 453. It appears to me, rather clearly, that the quagmire which some writers and commentators have harped on in relation to the provisions of Section 134(2) of the Constitution is self-inflicted. If the drafters of our constitution had intended a separate or additional “25% vote requirement” for a candidate, they would have so stated.
May I invite our attention to Section 48 of the 1999 Constitution whereat the composition of the Senate of the Federal Republic of Nigeria is stated unequivocally as follows:
“The Senate shall consist of three Senators from each State and one from the Federal Capital Territory”.
From the afore-quoted constitutional provision, it is beyond any argument that, whereas, each State in the country is entitled to produce a maximum of three Senators, a different requirement of one is deliberately set or prescribed for the FCT, the use of the word “and” notwithstanding.
It will be ridiculous, if not out rightly absurd, to argue that the intention of the draftsmen of the Constitution is to erect a requirement, not otherwise contemplated by the grundnorm, insisting that a candidate who, for instance, has already scaled the popularity threshold by scoring the highest number of votes cast in all the 36 States of the Federation, must have no less than 25% of the votes in the FCT. With respect, the intention of the draftsmen is not, and could not have been to confer any “super” status on the FCT, or elevate it over and above the States that make up the federating unit. The letters, spirit and intendment of Section 134(2) of the Constitution, hardly would lend credence to such strictures.
It is beyond any argument that the FCT is regarded and treated as a State. See also Baba-Panya v President, FRN (2018) 15 NWLR (Pt. 1643) 395 at 30, where the Court of Appeal held that the Federal Capital Territory is, in law, a State. See also Ibori v Ogboru  6 NWLR [Pt. 920] 102 at 138 where the Court of Appeal held that the provisions of the Constitution apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation. In other words, the Federal Capital Territory is to be treated like a State, and it is not superior or inferior to any State in the Federation. See Section 299 of the Constitution.
This writer holds the respectful view that the proper interpretation that accords with the purposive prescription handed out by the Apex Court is one which treats the “FCT” as a State, and regards it as a critical part of the constituent units (two-thirds of all the States) from where a candidate is at liberty to draw his “one-quarter” [25%] votes. Any other interpretation, is clearly a product of mechanical jurisprudence!
In a nutshell, there is nothing in the clear, lucid and unambiguous provisions of Section 134(2) of the Constitution, which imposes a mandatory requirement of obtaining at least 25% of the total valid votes cast in the FCT on a candidate, before he can be declared the winner of a Presidential election in which he already secured the highest votes tally, and has capped it with 25% of the total votes in at least two-thirds of the 36 States of the Federation. Mathematically, therefore, the two-third stated or contemplated in Section 134(2) is, and can only mean, 2/3 of 36+1 [that is 37], and not 2/3 of 36 on the one hand, plus 2/3 of the FCT on the other hand. Any argument to the contrary is merely a red herring, canvassed for fanciful and sensational ramifications only.
Aikhunegbe Anthony Malik, SAN, Constitutional Lawyer, Abuja
The 25% Constitutional Requirement: Legal and Governance Issues Arising Therefrom
Chief Mike Ozekhome CON, SAN
The gravamen of this discourse, is the mathematical exactitude of the requirement of 25%. The wordings of the Constitution, are quite clear and unambiguous. They demand for not less than one-quarter of the votes cast at the elections in each of at least 2/3 of all the States; And the Federal Capital Territory. By a judicial mathematical analysis, 2/3 of 36 States is equal to 24 States, and in addition, the FCT, Abuja. As an example, 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.
What the law states is that, the candidate must have 25% of votes in those States, and the FCT, Abuja. The law does not contemplate that, the candidate must win those States. The jurisprudence behind this provision, is to ensure that the President as the Numero Uno citizen of the Nation, enjoys a reasonable range of widespread acceptance by majority of the people he seeks to govern, including those inhabiting the seat of power where he would govern from.
To know whether a candidate must win 25% of 24 States aside the FCT, Abuja, to be declared as winner, we must consider the provisions of Section 134 against the background of a community reading of Sections 2(2), 3(1) & (4), 48, 297, 298, 299, 301, and 302 of the 1999 Constitution. The said provisions were pronounced upon and upheld in Bakari v Ogundipe (2020) LPELR – 4957 (SC) per Bode Rhodes-Vivour, JSC.
The FCT, Abuja, like any State in the Federation, has its own courts, distinct Chief Judge, a Senator; executive powers exercised by the President for it, similar to Governors of states, legislative powers vested on the NASS, instead of states with Houses of Assembly; with a Minister as its administrative Head rather than a Governor. It is distinct from the States.
This Constitution imbroglio becomes easy to untie when we recall some precedents.
In Awolowo v Shagari & 2 ORS (1979) FNLR Vol. 2, the Apex Court considered Section 34A(1)(c)(ii) of the Electoral Decree which is impari material, except that it did not add “And the FCT, Abuja.” It held:
“A candidate for an election to the office of President shall be deemed to have been duly elected to such office where-
(c) There being more than two candidates
i.He has the highest number of votes cast at the election; and
ii.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.”
The difference between this Decree and Section 134 of the Constitution being considered is the addition of “and the Federal Capital Territory, Abuja’’ under our extant 1999 Constitution.
In Awolowo’s case (Supra), Fatayi-Williams JSC (later CJN), held that Section 34(1)(c)(ii) of the Decree was a clumsily worded section which was nevertheless, devoid of any semantic ambiguity. In that same case, Obaseki JSC, construed the meanings of the word “each” and the words “States in the Federation”. He held that the word “each” in subsection (1)(C)(ii) of section 34A qualified “a whole State”; and that the words “States in the Federation” referred to the land area and not votes. For the avoidance of doubt, we shall reproduce the exact words of the learned Justice; thus:
“The word ‘each’ in the subsection (1) (c)(ii) of Section 34A qualifies a whole State and not a fraction of a State, and to interpret otherwise is to overlook the disharmony between the word ‘each’ and the fraction ‘two-thirds’. …Looking at the subsection still further, the words ‘States in the Federation’ can only refer to the land area and not the votes. Arising from the interpretation that 2/3 of all the States in the Federation refers to the land area and not the votes, the result of the voting in Kano State can only mean what is stated in Exhibit ‘T’ and ‘T2’ and nothing else. …”
The Status of the FCT in the Constitution
By way of extrapolation, the “land area” of the FCT must be distinguished from the land area of each of the 24 States of the Federation.
Flowing from the above, let us now examine Section 299 of the 1999 Constitution.
In Bakari v Ogundipe (Supra), the Apex Court of the land held:
“By virtue of section 299(a), (b), of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the provisions of the Constitution shall apply to the Federal Capital Territory, Abuja, as if it were one of the States of the Federation; and accordingly 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 provisions are courts established for the Federal Capital Territory, Abuja; all the powers referred to in paragraph of the section shall be exercised in accordance with the provisions of the Constitution; and the provisions of the 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 the section. By virtue of the provisions of section 299 of the Constitution, it is so clear that Abuja, the Federal Capital of Nigeria, has the status of a State. It is as if it is one of the States of the Federation.” (Pp. 36-37, paras. E-A). See also, with approval, the following authorities; NEPA v Endegero (2002) LPELR-1957(SC); Baba-Panya v President, FRN (2018) 15 NWLR (Pt.1643) 395; (2018) LPELR-44573(CA); Ibori v Ogboru (2005) 6 NWLR (Pt. 920) 102.
There is no ruckus or brouhaha with the clear position of the courts, as stated above. This is because the Constitution is clear, on the separate and distinct status of the FCT. It is treated as any other State in Nigeria.
Consequently, a communit