ANIETIE USEN argues that 25% votes in FCT is a constitutional requirement to be declared the president-elect

I am not a lawyer. My first daughter and first son are. But that does not convey to me any scintilla or atom of knowledge of the law and the technicalities thereof. I have two degrees only in political science and have attended many executive leadership courses in Harvard Business School, Oxford Business School, Wharton Business School, Manchester Business School, Boston Business School and of course our own prestigious Lagos Business School. So I can at least lay claim to common sense. By the way, Common Sense was my nickname way back in my University of Calabar days decades ago.

Common sense tells me that many premeditated wrongdoings took place on February 25, 2023, during the  presidential election in which Bola Tinubu, the presidential candidate of the ruling APC government, was hastily declared the winner. So much has already been said and written in the local and international media about the embarrassingly abysmal performance of the Independent Electoral Commission (INEC), and how the hitherto efficient INEC computers and servers mysteriously and disgracefully collapsed in their moment of glory, even as all eyes globally were riveted on Nigeria. The shame is still boldly written on the faces of INEC officials, as they struggled vaguely in vain all week to explain to the world on Cable TV how a phantom computer ‘glitch’ visited them with colossal failure at the edge of their breakthrough.

However, Nigerians and the international community are no longer in doubt of the identity of the ‘glitch’ or ‘glitches’ at INEC, on a day the entire hope of a nation was pinned on the electoral umpire. ‘Glitch’, we now know, is not rocket science or anything hi-tech. Based on video evidence and the plethora of similar complaints from a multitude of Polling Units across the country, the ‘glitch’, many now know, must have been a man and woman in INEC, who simply strolled into the Server Room of INEC and switched off the servers that were connected to the portal of the presidential elections result. In virtually all cases, the Polling Unit officials were able to upload the results of the National Assembly elections stress-free, but curiously they could not upload the results of the presidential elections. I call it ‘selective glitch’, defined as a veritable equivalence of selective amnesia, during which attempts to pull a wool over the eyes of Nigerian electorates floundered.

In any case, the big question for me is: at whose expense should INEC’s so-called ‘glitch’ be? At my expense? Who pays the price for the blundering and fumbling at INEC? The candidates who traversed the length and breadth of the country and their constituencies at great cost to persuade electorates? Or the poor innocent electorates who laboured for hours on end at polling units to cast their votes and their votes were not electronically counted nor transmitted to INEC as required by law? Who pays the high price for the failure or sabotage or both at INEC? Should Nigerians simply look the other way and celebrate the historic failure that INEC and its paymasters wrought? INEC and its cohorts must pay for this mess. Or must the weather-beaten, battered and beleaguered Nigerians continue to pay every day for every mess of their leaders?

This is however not the subject matter of my interrogation. My concern is that in declaring Tinubu as the president-elect, someone obviously dropped the ball and left a fly in the ointment. Tinubu was fortunately or unfortunately denied the required 25% votes in the Federal Capital Territory (FCT), as required by the Constitution of Nigeria. He is the first ever president-elect in Nigerian history to score below 25% in the FCT. This put a bold question mark not just on his popularity but also his electability.

Specifically, Section 134 (2) of the Constitution says: “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”.

This section of the constitution is written in very simple English. But Nigerians are bracing up for their lawyers to split hairs over it and smile their way to the banks in the process. But common sense tells us that our constitution certainly requires 25% of votes in the FCT for Tinubu or any presidential candidate, to be declared president-elect. To say that the constitution does not require 25% votes from the winner of a presidential election in FCT as some have argued, is to say that citizens and residents of the FCT do not matter in determining a Nigerian president. It means they are irrelevant in such an important democratic responsibility. It may also cast the FCT people and residents in the image of outcasts, second class citizens or perhaps strangers, with no stake in determining the leader of their country.

The question then is: If their votes are irrelevant in the determination of who rules Nigeria, why for God sake, were they required to register and vote in the presidential election? If their votes would not count in the final verdict, why did INEC provide polling units, ballot materials, election officials and security to ensure that they voted in the presidential election? Why were FCT citizens and residents allowed to spend upwards of 12 hours under sun and thunderstorms just to cast a ceremonial vote? For me, this ought to be the ultimate injustice and insult to FCT indigenes and residents, if the Nigerian courts are talked into and arm-twisted to rule against the fundamental right of its people.

There are more questions than answers to this attempt to disenfranchise bona fide Nigerians in the FCT. Who disqualified the good people and residents of the FCT from being heard? The constitution? Or is someone telling us that FCT indigenes are partial and half-Nigerians after they had sacrificed their God-given land, their livelihoods and their unique identity to host the seat of power in Nigeria? Are they about to be deprived of their equal rights with other Nigerians to matter in the election of their president? Nigerians want to know whether the FCT votes of February 25, 2023, was a mere ceremonial exercise in futility? Why would the votes of other parts in Nigeria be quantified and pecked at 25% and FCT votes would be discarded? Common sense tells me that if there is any part of Nigeria that more than requires these irreducible minimum percentage of votes, it must be the FCT, the seat of the federal government, from where the president rules the rest of the country.

I also believe that if the constitution did not intend a 25% vote for the winner of the presidential election in FCT, it would have been so expressly stated that 25% votes does not apply to the FCT. Instead, the constitution expressly stated and grouped the FCT along with 24 States (two-thirds Of 36)  in the same sentence, in the same section of the constitution. It simply means that 25% votes in FCT is a constitutional requirement that Tinubu must meet to be declared the president-elect. And he did not.

As a matter of fact, the constitution of Nigeria provides not just for the election of a president by the FCT indigenes and residents. It also provides for election of a Senator and two members of the House of Representatives, (HoR), by the same FCT indigenes and residents. These three members of the National Assembly from the FCT, says the Constitution, should be elected by a ‘simple majority’ of votes. This same provision of ‘simple majority’ applies exactly to the election of National Assembly members in all 36 States of Nigeria. In other words, the rules that apply for the election of senators and HoR members in the 36 States also apply 100% to FCT. Why would the same constitution turn around to make a separate rule in the presidential election to exclude the FCT? Why would the constitutional requirement for the election of National Assembly members in FCT be exactly the same across the country and the case of the presidential election would not be the same across the country? It is certainly the same. A presidential candidate must win at least 25% in the FCT.

 For me, this is a matter of common sense, with fundamental consequences and implications for our rights and privileges as Nigerians. The truth and sincerity of Nigerian justice is also at stàke here. A lawyer friend of mine once told me authoritatively that there are three types of truth; first the truth, secondly the whole truth and thirdly nothing but the truth. Well, I told him he was wrong because he excluded the gospel truth.

The gospel truth is that Tinubu failed to meet the constitutional requirement to be president-elect of Nigeria. To complicate matters for him, the ruling APC government and INEC, in their determinant counsel and hurry to force him on Nigeria, left a lot of trails which our judiciary should be able to trace, all the way to justice. Trace the trails and justice shall be done in no time.

Usen is a multiple award winning journalist, author and technocrat

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