The Labour Party presidential candidate, Mr. Peter Gregory Obi, has presented facts and concise argument on issues for determination before the Presidential Election Petition Court (PEPC) over the controversial one-quarter (25%) votes cast in the Federal Capital Territory.
The was contained in Peter Obi’s Final Written Address presented to the Tribunal challenging the 2023 presidential election held on February 25, 2023, as conducted by INEC which saw the All Progressives Congress (APC) presidential candidate, Bola Ahmed Tinubu and his running mate, Senator Kashim Shettima, declared winner.
In the Issues for Determination, Obi said, amongst other things, that the return of Tinubu and Shettima violates the mandatory provision in Section 134 (2) (b) of the 1999 Constitution and asked the court to determine “whether the declaration and returning of the 2nd Respondent by the 1st Respondent as the winner of the Presidential Election held on the 25th February 2023 was not invalid by virtue of the mandatory provisions of section 134 (2) (b) of the constitution of the Federal Republic of Nigeria 1999, as amended.”
He stated:
A convenient starting point for the argument of the issue is to make reference to paragraph 81 of the Petition, wherein the Petitioners pleaded inter alia that, the 2nd Respondent, besides not scoring the majority of the lawful votes cast at the election, did not obtain at least one quarter of the votes cast in the Federal Capital Territory, Abuja and ought not to have been declared and returned elected. It is not in dispute between the parties that from the declaration and return made by the 1st Respondent, the 2nd Respondent did not obtain one-quarter (25%) of the votes cast in PCT.
In examining Section 134(2)(b), we must consider the provisions of Section 299 of the Constitution. Section 299 of the Constitution states that the provisions of the Constitution shall apply to the PCT, Abuja as if it were one of the States of the Federation and accordingly, the legislative powers, executive powers and judicial powers vested in the State Houses of Assembly, the Goven1or of a State and in the Comis of a State shall, respectively, vest in the National Assembly, the President of the Federation and in the PCT Courts and this vesting shall be read with such modifications and adaptations as may be necessary.
We submit that to review and give a proper interpretation to these provisions, we must bear in mind that the Constitution is not read and interpreted like any other book, there are rules for interpreting the Constitution and we will now examine same.
Literal interpretation of Section 134 (2) (b) of the Constitution of the Federal Republic of Nigeria 1999, as amended
It is trite law that the word “and” as used in section 134 (2) (b) of the constitution is conjunctive. The said word “and” has been given judicial interpretation in a litany of cases. Section 134(2)(b) of the 1999 Constitution (as amended) is clear as crystal, unambiguous, direct and simple.
The language of the Constitution is clearly to the effect that a candidate to be declared a winner of the Presidential election, that candidate must secure at least one quarter (25%) of votes cast in two-third of the entire 36 States of the Federation (that is in 24 states). Again, that candidate must also secure not less than 25% of the votes cast at the Federal Capital Territory, Abuja.
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 I/4th (25%) of votes cast in FCT. 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.
Judicial decisions on Section 134(2) and Section 299
The Court of Appeal in Okoyode v FCDA 2005 was invited to interpret Section 299 of the Constitution on whether the FCT was a State and in its decision stated that the FCT should be treated as one of the States in the Federal Republic of Nigeria. In essence, the question submitted to the Court was whether the Federal Capital Development Authority (FCDA) was an agency of the Federal Government of Nigeria.
The Court in answer stated that the FCDA was an agency of the FCT which is a separate unit from the Federal Government and should rather be seen as a State and a separate administrative unit distinct from the Government of the Federal Republic of Nigeria.
The case of Panya v President, FRN & Ors 2018 is also instructive; the issue submitted in that case was whether the indigenes of the FCT are entitled to be appointed as Ministers of the Federation further to the provision of Section 147 which states that Ministers shall be appointed in line with federal character and that all areas and states of the country ought to be evenly represented.
The Plaintiff argued that the FCT for the purpose of appointments of the executive is a State and appointment of persons as Ministers ought to reflect federal character which includes appointment of indigene of the FCT. The Court agreed with him to the extent that failure to appoint indigene of the FCT is a violation of the Constitutional rights in Section 147(3) and Section 299 of the Constitution.
It is submitted that a purposive reading of Section 134(2), Section 299 and the remainder provisions give us the conclusion that obtaining 25% votes in the FCT is an additional stand-alone requirement for election into the office of the president or the FCT is only a State, together with Nigeria’s 36 states where the winning candidate must have obtained at least 25% in two-thirds of all States (37 States).
A literal reading of Section 134(2) of the Constitution gives the interpretation that a winning candidate must have 25% of total votes cast in two third of the States in the Federation and the FCT, meaning that a winning candidate must obtain 25% in 24 States and in the FCT. This is more so, as Section 3 and Part II of the second schedule lists the States of the Federation and the FCT is not included as a State.
Going further, the Constitution in Section 299 has an interesting provision, it provides that “The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation…”. However, the provision reads fu1ther that: “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 foregoing provisions are courts established for the Federal Capital Territory, Abuja;”
A holistic reading of Section 299 seems to suggest that the FCT, will be considered a state for the purpose of enjoying the executive, legislative and judicial powers vested in a State. Hence, the FCT is executively administered by the President, the National Assembly legislates the local laws of the FCT and the FCT High Court is the Court with territorial jurisdiction in the FCT. Section 299 cannot be read in isolation of the part that starts with ‘and accordingly’. This is because the Constitution must be read together with its surrounding provisions.
It is submitted that, the provisions of Section 299 can be interpreted to mean that the FCT will be regarded as a State to the extent of the exercising and enjoyment of executive, legislative and judicial powers by the President, National Assembly and the High Court of the FCT, on behalf of the FCT and no more.
Certainly, reading Section 299 of the Constitution to mean that the FCT exists as a State of the Federation for all purposes renders redundant the wordings of the drafters of the Constitution in Section 134(2)(6) that the winning candidate must obtain 25% in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja. The portion that reads ‘and the Federal Capital Territory’ becomes of no benefit at all. It also makes no sense of Section 3(1) which enumerates the 36 States and Part II of Schedule 1 which identifies them.
Conversely, an interpretation that Section 299 only countenances the FCT as a State to the extent of conferring executive, legislative and judicial privileges accords and makes sense with Section 3, 134(2), Part II of the Second Schedule and the remainder provisions of the Constitution which clearly identify the FCT as distinct from a State and isolated it in the enumeration of the 36 States that make up the Federal Republic of Nigeria. This interpretation also finds basis in the context of how the Courts have in their decisions classified the FCT as a State.
Again it is submitted that the specific mention of the Federal Capital Territory, Abuja together with ‘two-thirds’ of all the states in Federation is intended to mean that Federal Capital Territory, Abuja is one of the places where a candidate must mandatorily obtain one-quarter of the votes cast, by operation of the term ‘each’, provided in S. 134 (2) (b). We submit that the specific mention of a class, is to provide for the persons specifically mentioned, to the exclusion of all others that are not mentioned.
In Grand Systems Petroleum Ltd V Access Bank Plc (2015), it was held that the interpretation of statutes or the Constitution, it is a basic principle that specific mention of a thing excludes the general mention of others i.e. when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same class as those listed.
Any Absurdities
Section 66 of the Electoral Act 2022, states that the winner of the presidential election will be subjected to the provisions of section 134 of the Nigerian Constitution, and it states that: “In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result 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,” the Electoral Act and partly read: “The candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”
Section 299 (which states that the PCT 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. It is a trite principle of law that a special provision such as Section 134 (2) (b) of the 1999 Constitution, cannot be derogated from the general provision.
In Awolowo v Shagari & 2 ORS (1979), the Apex Court considered the identical provision in Section 34A(l)(c)(ii) of the Electoral Decree and in relation to the word “each” and “states in the federation”, the Supreme Court per Fatayi Williams JSC, held as follows “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”‘
A dispassionate and meticulous study of the provisions Section 130 (1) and (2) of the 1999 Constitution as cited above and read communally would reveal the dual status of the President under the 1999 Constitution.
There is no issue 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.
Further, going into the mischief of the additional requirement of 25% of votes in the FCT, we note that the 1979 constitution was completely silent on this requirement and only stopped short at stating that the winning candidate must have 25% of at least two-third votes cast in all the States of the Federation.
Hence, the deliberate amendment of the drafters of the 1999 Constitution, to include the additional requirement of 25% votes in the FCT must not be rendered redundant as it is possible that the drafters intended that the popularity of the winning candidate must extend not only to an appreciable geographical spread but also to the FCT being the capital city and melting pot for all Nigerians and which would truly reflect the will of all Nigerians.
The Petitioners contend that the Respondents are wrong in the approach they have taken to the interpretation of the intention of the makers of the Constitution having regard to the provisions of Section 134(2) (b).
For the avoidance of doubt, the Court of Appeal held: “That the Constitution is a logical whole, each provision of which is an integral part thereof and it is, therefore, logically proper and indeed imperative, to construe one part in the light of the provisions of the other parts”. To that extent, we contend that in order to fathom the constitutional intent in Section 134 (2) aforesaid, we need to focus on other provisions of the Constitution which may throw light thereon.
May we respectfully draw the Court’s attention to the provisions of section 14 of the Constitution, particularly section 14(2)(a) &(c) thereof. For the avoidance of doubt, section 14 (2)(a) provides as follows: “Sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority”.
Significantly, in section 14(2)(c), the Constitution directs that; “the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution”. It is our view that section 134 ought not or indeed cannot be interpreted without recourse to section 14 which arises from the Fundamental Objectives and Directive Principles of State Policy contained in Chapter II of the Constitution.
Certainly, the Constitution stipulates that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory” (see section 2(2) of the Constitution). In addition, section 3 provides the number of States that make up the Federation and states thus: “There shall be 36 States in Nigeria, that is to say … ” The Constitution in section 176 thereof provides that there shall be for each State of the Federation, a Governor and it is remarkable that the Constitution does not prescribe an election for the Governor of the Federal Capital Territory. In other words, whilst the people inhabiting each of the 36 States have the right to elect their own Governor, the people of the Federal Capital Territory do not either exercise that privilege or right as the case may be.
Consequently, whilst elections held in different States of the Federation on the 18th of March, 2023, the Federal Capital Territory was an exception. The explanation cannot be fathomed from the words of the Constitution except by recourse to other sections of the Constitution. For example, section 14(1) already referred to is final in its provisions, that “the Federal Republic of Nigeria shall be a State based on the principles of democracy and social iustice”.
Attention must also be drawn to section 14(2)(c), which directs that the participation by the people in their government shall be ensured in accordance with the provisions of the Constitution (Emphasis added). For the avoidance of doubt in each of the 36 States of the Federation, the Constitution makes provision for the election of a State Governor. Again, in section 7 of the Constitution a composition of Local Government Councils is to be democratic means.
However, while the 5.34 Constitution directs elections into Area Councils in the Federal Capital Territory, no election to the office of a Governor is provided for because the Federal Capital Territory does not have a Governor but an appointee of the President of the Federal Republic as the Administrator of the Federal Capital Territory who stands in place of a Governor. It is our argument in this brief that the power of the President to appoint a Minister for the day-to-day administration of the Federal Capital Territory stems from the sovereign power of the persons residing in the Federal Capital Territory in the exercise of their sovereign power.
It is our humbly held view that the foregoing provides the rationale for the constitutional calculus entrenched for the emergence of any person as President of the Federal Republic of Nigeria by which the Constitution contemplates that for any presidential candidate to emerge as President the person must satisfy the requirements of Section 134 (2) (b) of the Constitution.
Once this purposive construction is employed it would seem obvious in our view that the beneficial construction of the word “and” would be the one that ensures that “and” placed between the States and the Federal Capital Territory in section 134 is construed as conjunctive and not disjunctive.
The answer to the 25% of FCT matter bothering on Section 134(2) of the 1999 constitution (as amended), is there right in that section. The argument that the States and FCT are taken as one collective of 37 states whereby FCT is treated as a state. But that Section 134 of the Constitution differentiates between on one hand, ‘States and FCT’, and on the other hand, ‘States’ only. Please see Section 134(3)(b) of the Constitution where the drafter said ‘ States’ only – not once but twice.
Then in Section 134(4)(b) of the Constitution, the drafter said ‘States and FCT. An important cannon of interpretation posits that, the express mention of one of two related things excludes that which is not mentioned. Also, using different phrases in one section confirms difference between the two phrases. The drafter using ‘State and FCT’ in the vexed Section 134(2)(b) of the Constitution, then using only ‘States’ in Section 134(3)(b) of the Constitution, and reverting back to ‘States and FCT’ in Section 134(4)(b) of the Constitution, only confirm that the FCT is not a state. The drafter was intentional where he said” AND” FCT.
Furthermore, the argument that Section 299 of the Constitution (as amended), provides that FCT should be treated as a state, is patently misplaced. Section 299 of the Constitution is contained in Part 1 Chapter VIII of the Constitution which only deals with the allocation legislative and executive powers for the internal administration of the FCT; basically demarcating FCT administration from the federal administration. The Section 134 of the Constitution is in Chapter VI of the Constitution.
It is therefore submitted that the provision of Section 134 cannot be interpreted with reference to Section 299 of the Constitution bearing in mind the provision of Section 3 (5) of the Constitution.
Conclusion
For reasons given above, we respectfully urge Your Lordships to discountenance the 2nd-4th Respondents’ defence as devoid of any scintilla of merit, hold that the Petitioners’ case is meritorious and grant them their reliefs.
In conclusion, may we respectfully commend to Your Lordships the words on the marble of the Kenyan Supreme Court in the case of Raila Odinga & Anor v Independent Electoral and Boundaries Commission & Ors (2017); when in nullifying the election that returned H.E. Uhuru Kenyatta as the winner of the Kenyan presidential election in 2017, ex-cathedra said:
“What of the argument that this Court should not subvert the will of the people? This Court is one of those to whom that sovereign power has been delegated under Article 1(3)(c) of the same Constitution. All its powers, including that of invalidating a presidential election is not, self-given nor forcefully taken, but is donated by the people of Kenya. To dishonestly exercise that delegated power and to close our eyes to constitutional violations would be a dereliction of duty and we refuse to accept the invitation to do so, however popular the invitation may seem. Therefore, however burdensome, let the majesty of the Constitution reverberate across the lengths and breadths of our motherland; let it bubble from our rivers and oceans; let it boomerang from our hills and mountains; let it serenade our households from the trees; let it sprout from our institutions of learning; let it toll from our sanctums of prayer; and to those who bear the responsibility of leadership, let it be a constant irritant.”
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