Legal Issues in Tinubu’s Victory

Senator Bola Tinubu of the All Progressives Congress has been declared the winner of the 2023 presidential election, but with his failure to win 25 per cent of the votes in the Federal Capital Territory, many fear this could provide sufficient grounds for his opponents to challenge his victory, Alex Emunah writes

In spite of legitimate concerns raised about the alleged irregularities in the 2023 presidential poll, the Independent National Electoral Commission (INEC) last Wednesday declared Senator Bola Ahmed Tinubu of the All Progressives Congress (APC) the winner of the February 25 election.

Tinubu secured a total of 8,794,726 votes to defeat Atiku Abubakar of the Peoples Democratic Party (PDP), who polled 6,984,520 votes, while Mr. Peter Obi of the Labour Party scored 6,101,533 votes.

A few hours later, the former Lagos State governor was presented with a certificate of return alongside his running mate Kashim Shettima, making them the President-elect and Vice President-elect respectively. 

While Tinubu and Atiku won 12 states each, Obi won 11 states and the FCT, while Kwankwaso defeated the three only in Kano State.

Of the three leading presidential candidates, only Obi won the FCT, which is a very strong constitutional requirement to become the President of Nigeria.

Though Tinubu met the threshold by scoring at least 25 per cent of valid votes in at least 24 states of the federation, the 1999 Constitution (as amended) stated categorically that a candidate must win 25 per cent in at least 24 states and the FCT. This has led to different interpretations.

In 1979, Shehu Shagari faced a similar scenario when he scored 25 per cent in 12 of the 19 states of the federation at the time. With the 1979 Constitution requiring him to score at least 25 per cent in two-thirds of the states, a crisis ensued over what should be considered as two-thirds of 19 states, whether it was 12 or 13.

The Supreme Court concluded that it would be “12 two-thirds’’ – meaning 25 per cent in 12 states and 25 per cent of two-thirds of a 13th state.  Shagari automatically met the requirement – but the opposition cried foul.

Now that the result of FCT has been announced, APC had just 19.8 per cent and PDP 16.1 per cent, compared to Labour Party’s 61 per cent.

Before Tinubu emerged the winner of the election, many Nigerians particularly supporters and members of the APC were already apprehensive, wondering if INEC was going to call for a run-off since the two leading candidates did not win the FCT or approach the court for interpretation before declaring a winner.

They also wondered if INEC would declare the election as inconclusive and organise a second election within seven days as also provided for under Section 134 (3), which states: “In a 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 candidates 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 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.”

Unfortunately, at the end of the collation of the result, the electoral umpire declared Tinubu the winner and decided that the opponents should go to court for interpretation

 What Does the Constitution Say Exactly?

Section 134 (2) states: “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 FCT.

 “(3) In a default of a candidate duly elected in accordance with subsection (2) of this section their shall be a second election in accordance with subsection (4) of this section at which the only candidates 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 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.”

Former President of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (SAN) was the first to point out this tricky constitutional provision in a letter he wrote to the INEC early in January 2023. Although commending INEC for a “great job to ensure free, fair, verifiable, credible and transparent elections,” Agbakoba said the clarification was needed.

 “I am a little worried. I reviewed Section 134 carefully, specifically, subsections 134 (1) (b) and (2) (b), and wondered if “two-thirds of all the States in the federation and the FCT” means either of the following:  “a) that a presidential candidate must score 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 which means 24 states, the 24 states will include the FCT as a “state”.

The former NBA boss added that there are three major questions arising from his interpretation. He said: “(1) Is the requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 states of the federation; does this mean that the FCT is incorporated in the 24 states?

 “Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 states of the federation but fails to score one-quarter of the votes cast at the election at the FCT, be duly elected as President of Nigeria?

“To be honest, I am not quite sure of the right answers to my questions. I just thought to bring this to your attention as something you might wish to clarify to the public.”

Another senior lawyer, Emeka Ozoani (SAN), said for any candidate to be constitutionally declared a winner of a presidential election in Nigeria, he or she must win in FCT.

Quoting some sections of the 1999 Constitution, Ozoani argued that if a presidential candidate did not win in the FCT, he or she is not qualified to be declared winner, adding that the only available option is for INEC to conduct fresh election.

“Any presidential candidate who did not win the FCT cannot legally and constitutionally be declared the winner of the presidential election. The only available path to INEC is to call for a fresh nomination. Section 133(b), last paragraph of the 1999 Constitution of the Federal Republic of Nigeria, as amended attests to this,” he said.

“The only interpretation to be founded on Section 133 (b) of the 1999 Constitution of the Federal Republic of Nigeria, as amended is to the effect that for a candidate to be qualified to the office of the president, ‘he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all states in the Federation and the FCT, Abuja but where the only candidates fail to be elected by this section, then there shall be fresh nominations’.

“The interpretation of and is in the issue. We submit that the word, ‘AND’ means ‘Conj’, ‘in addition’, ‘together with’, and ‘plus’. See Webster’s Universal Dictionary and thesaurus, Bedded and Grosset, P. 31. Also, ‘AND’ means, ‘generally, a cumulative sense, requiring the fulfillment of all the conditions that it joins together and herein, it is the antithesis of ‘OR’. See Stroud’s judicial dictionary of words and phrases, Seventh edition, VOL. 1, Daniel Greenberg, London Sweet and Maxwell, 2006, P 128.”

He maintained that it is illegal and unconstitutional to declare any presidential candidate winner without him or her winning the FCT Abuja.

But another senior lawyer, Femi Falana (SAN) had said that it is not mandatory for a presidential candidate to win the FCT to be declared the winner of the election.

In a statement, Falana explained that the law sees the FCT as any of the 36 states in the country.

He said: “You don’t have to win the FCT; if you meet the requirement; that is two-thirds of the majority of states in the country. You don’t have to win the FCT. Section 299(1) of the Constitution provides that the provisions of the Constitution shall apply to the 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 doubtless clear that by virtue of Section 299 of the Constitution of the federation, the FCT is in law a state. 

The senior lawyer further noted: “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 majority of lawful votes cast at the election and 25 per cent of lawful votes in 37 states or 36 states plus the FCT. It is not compulsory for a presidential candidate to win the FCT,” Falana added. 

With the contradicting interpretations, many feel that the opposition political parties need to approach the courts to seek proper and definite interpretation of the controversial section.

The days ahead would reveal the next step the PDP and LP would take.