The 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution) is the grundnorm of Nigeria’s system of laws. It is the most important and supreme law in Nigeria. It binds every Nigerian, and its provisions guide the affairs of Nigeria including the affairs of politics, election into political offices and governance. In fact, any law, inconsistent with the provisions of the Constitution is void to the extent of its inconsistency.
The Constitution in stipulating the requirements for election as Nigerian president states in Section 134(2) that a candidate must (a) have the highest number of votes cast at the election; and (b) have not less than 25% of total votes cast in at least two-third of all the States in the Federation and the FCT, Abuja. Clearly, it appears that the Constitution creates two hurdles that ought to be crossed by a candidate before the Independent National Electoral Commission (INEC) can return him or her as president of the Federal Republic of Nigeria. What exactly are these hurdles? What does the Constitution mean by 25% of votes in all the States in the Federation and the FCT, Abuja (FCT) and how should this be interpreted? These are the questions sought to be answered here.
PROVISIONS OF THE CONSTITUTION
As stated earlier, the Constitution provides in Section 134 (2) (a) and (b) that a candidate must (a) have the highest number of votes cast at the election; and (b) have not less than 25% of votes cast in two-third of all the States in the Federation and the FCT before he can be declared as president. Our focus is on paragraph (b) of Section 134(2), that is on the requirement that the candidate must have not less than 25% of two-third of all States in the Federation and the FCT.
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 FCT, 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 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 FCT Courts and this vesting shall be read with such modifications and adaptations as may be necessary.
Before we proceed to review and give an 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.
RULES FOR INTERPRETATION OF THE CONSTITUTION
In the 2022 decision of FRN v Nganjiwa3 the Supreme Court, while relying on some of its earlier decisions, reiterated the settled position on how to interpret provisions of the Constitution as follows:
(a)Where the words of the Constitution are clear and unambiguous, a literal interpretation will be applied.
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(b) Where there is ambiguity in a literal interpretation, a holistic interpretation would be resorted to.
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(c) All sections must be read together and purposively so that no section is rendered redundant or superfluous.
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(d) If the words remain ambiguous, the intention of the makers of the Constitution must be discovered to determine the mischief sought to be cured.
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(e) The Court is entitled to consider how the law stood when the statute was passed, what the mischief was for which the old law did not provide and the remedy which has been provided by the new law.
Hence, the Constitution is to be interpreted purposively and holistically and where a literal reading of the Constitution leads to absurdity, recourse must be made to the mischief which the law seeks to cure.
It is important also, that we consider how the Courts have interpreted these provisions of the Constitution, although on dissimilar facts, as this will guide us on how the Courts are likely to interpret these provisions even though on a different set of facts.
JUDICIAL DECISIONS ON SECTION 134(2) AND SECTION 299
The Court of Appeal in Okoyode v FCDA4 had cause 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 & Ors5 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 indigenes of the FCT. The Court agreed with him to the extent that failure to appoint indigenes of the FCT is a violation of the Constitutional rights in Section 147(3) and Section 299 of the Constitution.
Clearly, although all these cases touch only on Section 299 of the Constitution. None of them interpreted Section 299 together with Section 134(2) and they cannot wholly guide our interpretation of the provisions as it is the law that a case is only an authority for what it decides. Also, mention must be made of the decision of the Supreme Court in the case of Awolowo v Shagari where the Court had the opportunity of interpreting the provision of Section 34A(1)(c)(ii) which reads that the winning candidate into the office of the president must have “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 provision of law interpreted in Awolowo’s case is different from the one being considered here as it has an additional requirement for the FCT. The decision is not quite helpful for interpreting Section 134(2) and 299 of the Constitution.
Considering the above, we must now examine the wordings of Sections 134(2) and 299 of the Constitution, review the context under which the Courts have classed the FCT a State and interpret the relevant sections in a bid to finding an answer to our question.
APPLICATION OF RULES OF INTERPRETATION TO SECTION 134(2) AND SECTION 299
Here, we must determine whether 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 appears to give 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 moreso 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.
However, we cannot stop at this as 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...”. Some persons stop their reading here. However, the provision reads further 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. It must be emphasized that Section 299 cannot be read in isolation of the part that starts with ‘and accordingly’. This is because a Statute and especially the Constitution must be read together with its surrounding provisions. The case of Iwuchukwe & Anor v. AG Anambra State & Anor6 is instructive in this regard where the Court stated that a provision must be read as a whole and must not be read in isolated patches. In fact, the Court in relying on the rule of ‘noscitur a socis’ in that case stated that the true meaning of a word must be ascertained by the words accompanying it in that provision.
Going by this, 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.
Further, in the decisions where the Courts have regarded the FCT as a State, it has been in furtherance of the enjoyment of either executive, legislative and/or judicial rights and privileges by relevant entities on behalf of the FCT.
Should we now take this further by interpreting Section 299 of the Constitution to mean that the FCT exists as State of the Federation for all purposes? I would not think so.
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)(b) 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 useless and ought to be deleted. 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.
Further, going into the mischief of the additional requirement of 25% of votes in the FCT, we note that the 1979 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.
CONCLUSION
Overall, it is my considered opinion, that the scope of consideration of the FCT as a State only applies to the enjoyment and vesting of executive, legislative and judicial powers by relevant bodies on behalf of the FCT and does not apply to all extents and for all purposes. Further, an interpretation that Section 299 of the Constitution applies for all purposes is not holistic and renders a part of Section 134(2) and Section 3 redundant, unnecessary, and incorrect.
To this end, Section 134(2) ought to be interpreted to mean that a winning candidate must obtain 25% of total votes cast in two-third of all the States of the Federation (24 States) and also in the FCT.
1 The author of this article, Joshua Ayanda is a Nigerian lawyer with close to a decade experience of Legal Practice in Nigeria. The opinions expressed in this article are solely his and does not represent the views of persons or organisations linked to him in any way whatsoever. The opinions expressed in this article are also subject to change as the author continues to interrogate the issues considered. The author can be reached via the email: [email protected]
2 Section 1(3) of the Constitution
3 [2022] LPELR-58066 (SC),
4 [2005] LPELR-41123 (CA)
5 [2018] LPELR-44573 (CA)
6 [2015] LPELR-24487(CA)