WHEN IS A PRESIDENTIAL CANDIDATE DULY ELECTED?

-Kehinde Olaniyan Esq.

There arose a new line of argument today as soon as the presidential election result from FCT was announced at the National Collation Center, ICC, Abuja today. The argument is a legal one on the question as to whether or not a particular presidential candidate must win at least 25% of total votes cast in the Federal Capital Territory (FCT), among other mandatory requirements before INEC can declare such person as winner of the ongoing presidential election/collation.

It should be noted that electoral process and the requirements to win presidential election in Nigeria is a provision of the constitution. In our constitution, there are numbers of ways a winner can be deemed to have emerged, following peculiar circumstances.

Thus where the circumstance of an election is that there are more than one presidential candidate, like the one at hand where we have up to 18 candidates, the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides in section 134 subsection 2 that:

“(2) 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 each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”

As clear as the above provision is, there arises a question as to whether the word “AND” used in paragraph (b) of the above provision means that a candidate must SPECIFICALLY have 25% of votes cast at the FCT separately from other states of the federation or it is not a mandatory requirement.

By rules of interpretation, a statute must be read as a whole. The words, clauses and provisions of a statute must not be picked and read in isolation from the whole statute. Doing otherwise may occasion unnecessary and avoidable miscarriage of justice as well as causing hardship to people.

In order to avoid absurdity, quest must be made as to what the constitution itself means by the words: (a) States in the Federation, (b) Federal Capital Territory, Abuja.

Section 3 subsections (1) to (3) explains what States in the Federation means thus:
“(1) There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.

(2) Each state of Nigeria, named in the first column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of that Schedule.

(3) The headquarters of the Governor of each State shall be known as the Capital City of that State as shown in the third column of the said Part I of the First Schedule opposite the State named in the first column thereof.”

The constitution in subsections (4) and (5) of the same section 3 describes what Federal Capital Territory, Abuja means thus:
“(4) The Federal Capital Territory, Abuja, shall be as defined in Part II of the First Scheduled to this Constitution.

(5) The provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.”

The notable provisions from the subsections reproduced above are that: (1) the FCT is not listed among the States in the Federation, and
(2) while each State in the Federation is given a headquarters otherwise called Capital City, the Federal Capital Territory has none.
Using the common law maxim, expressio unius est exclusion alterius (meaning, the express mention of one thing implies the exclusion of others not mentioned), it therefore means a State in the Federation must be calculated to the exclusion of the FCT and vice versa. In order words, State is not FCT and FCT is not a State in the Federation. They must be calculated and identified differently.

Explaining this further, a similar provision to section 134 is found in section 179 of the constitution. Subsection (2) of the said section 179, provides that:
“(2) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates –
(a) he has the highest number of votes cast at the election; and
(b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.”

It will be noticed from the above provision that, unlike section 134(2) that expressly states the words ‘Federal Capital Territory, Abuja’, the corresponding ‘Capital City’ or ‘headquarters’ is not included in the requirements contained in section 179(2). (It should be noted that Federal Capital Territory, Abuja is the headquarters of Nigeria). This is evidence that the parliament does not intend to use the word ‘and’ in section 134(2)b other than in it’s ordinary, natural, literal and dictionary meaning.

The BLACK’S LAW DICTIONARY, revised fourth edition, defines the word ‘and’ as follows:
“AND. A conjunction connecting words or phrases expressing the idea that the latter is to be added to or taken along with the first… added to, together with, joined with… as well as… including… “and also”.

The dictionary and natural meaning of the word ‘and’ is conjunction. It is not alternative or optional. For instance, if a customer in a restaurant orders for “rice AND chicken”, it would be wrong for the waiter to serve ‘rice with more rice’ (without chicken) to the customer. Also it would be wrong of the waiter to serve any other thing different from what the customer has ordered. Applying same to the provision at hand, section 134(2)b means minimum of “(25% of votes × 24 states) + (25% of votes × FCT) = Winner”.

All these being said, the safest interpretation one could give to section 134(2) of the constitution, which is likely how the court will interpret same is that it is mandatory for a candidate in a presidential election to meet up with the following mandatory requirements of the constitution before it would be right for INEC to declare such a person winner:
(1) such a candidate must have at least 1 vote higher than the rest candidate (s),
(2) he must also have at least 25% of total votes cast in 24 (or more) States in the Federation, and
(3) he must compulsorily has at least 25% of total votes cast in the FCT.

Where a candidate fails to meet up with any of these three requirements, such a candidate shall not be declared winner of the election even if he has other two requirements in abundance. Such candidate cannot be said to have been duly elected. Therefore, it would not be lawful for INEC to pronounce a winner yet.

What would be done next in the event that no candidate is duly elected in accordance with section 134(2) of the constitution is that, by virtue of subsection (3) of the same section, INEC must within 7 days (after announcement of results) arrange for and conduct a second election to be contested only by two candidates only. Those candidates must be –
FIRST CANDIDATE: the candidate who scored the highest number of votes at an election held in accordance with the said subsection (2); and
SECOND CANDIDATE: (a) one among the remaining candidates who has a majority of votes in the highest number of States. If there are more candidates that has this, then
(b) the candidate among the remaining candidates with the highest total of votes cast at the election.

In order words, the rerun would take place between, either:
(1) a candidate with majority votes + a candidate with (majority votes × majority States), or
(2) a candidate with majority votes + a candidate with majority votes, as the case may be.

A candidate at such election shall be deemed elected to the office of President if –
(a) he has a majority (that is, highest) of votes cast at the election; and
(b) he has not less than one-quarter (that is, 25%) of the votes cast at the election in each of at least two-thirds (that is, 24) of all the States in the Federation and the Federal Capital Territory, Abuja.

In default of a candidate duly elected in the second election, the Independent National Electoral Commission shall, within another seven days of the result of the election held as aforesaid, arrange for another (that is, third) election between the two candidates who participated in the second election. A winner shall emerge between the two if he has a majority of the votes cast at the election.

This is the minimum requirement of the constitution as far as the issue of how a candidate can be declared as duly elected in a presidential election. The new Electoral Act, 2022 in section 66 therein recognized these provisions where it states that:
“66. 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 candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”

It is instructive to conclude on the note that the Constitution always prevails and any law or anything done contrary to or which is inconsistent with the provisions of the Constitution is to the extent of the inconsistency unlawful, null and void. Same could be a ground for presenting petition at Presidential Election Tribunal.

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Kehinde Olaniyan, Esq. is an adept lawyer and a sociopolitical analyst based in Lagos, Nigeria