Senior lawyers yesterday said a presidential candidate does not need to secure 25 per cent of the votes in the Federal Capital Territory (FCT) to be declared the winner.
Eminent professor of law Itse Sagay, activist-lawyer Femi Falana, Abiodun Owonikoko and Ahmed Raji, all Senior Advocates of Nigeria (SANs), as well as Dr Fassy Yusuf and Festus Ogun, said all a candidate needed to win was 25 per cent in 24 states, including the Federal Capital Territory (FCT).
Section 134 (2) of the 1999 Constitution provides: “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.”
For Sagay, the Constitution considers Abuja a state
On whether a candidate must score 25 per cent in the FCT to be declared the winner, the SAN said: “No.”
“The constitutional provision does not mean that a candidate that does not score 25 per cent in Abuja cannot be declared the winner.
“So long as a candidate scores one-quarter of the votes in at least 25 states, and for these purposes, FCT is treated as a state, he can be declared the winner,” he said.
Falana said it was not compulsory for a presidential candidate to win the FCT outright to be declared the winner.
He said: “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.”
Owonikoko agreed. He said: “Reference to FCT as part of the constituent territories in which a candidate must score not less than one-quarter of 25 per cent of votes cast in order to emerge the winner of the presidential election at the first ballot is not a separate hurdle to scale by a candidate.
“This is the provision of Section 134 (2) (b) and 2) (b) of the constitution. It is an incorporation provision.
“It is to underscore the drafters’ intention to have FCT treated as a full-fledged constituent state for the purpose of computing the number of states that a winner must not score below the lowest permissible votes in order to win the election at first ballot without a run-off.
“This provision must be given a harmonious construction that is consistent with other relevant provisions of the Constitution.
“That requires reading the provision of Section 299 of the Constitution into it.
“That section is a deeming enactment which states that the provisions of the Constitution shall apply to FCT ‘as if it were one of the states of the federation’.
“The implication of the deeming section is that FCT is not ordinarily one of the federating units in Nigeria; it is only part of the territory that makes up the federation as stated under Section 2 (2) of the Constitution.”
Raji threw more light on the import of the section.
He said: “The spirit of the law is to have a president with wide acceptance in the country.
“It is not the intention of the law that before anyone can be declared as the President, he must have at least 25 per cent in a particular area.
“The meaning will be that FCT will be regarded as a state, hence we look for two-thirds of 37 units and we take it from there. That is my humble understanding.”
Dr Yusuf shares a similar view. He said: “The drafters of our constitution were of the opinion that the votes for whoever wants to be President should have national spread.
“Even if you secured 50 per cent of the whole of the votes cast in the North, that will only give you 19 states, and you secured 50 or 70 per cent of the votes cast in the South, you only have 17 states.
“You must be acceptable to the people in the North and to the people in the South.
“So, the amalgamation of these must give you 24 states, including the FCT.”
Ogun also thinks so. He said: “A joint reading of sections 134(2) & 299 of the 1999 Constitution leads me to the irresistible conclusion that APC’s failure to clinch 25 per cent of the total vote cast in FCT will not affect the declaration of their candidate as President since they’ve scored over 25 per cent in 2/3 of the other states of the federation.
“I honestly feel that insisting on 25 per cent votes cast in the FCT when you’ve got more than 25 per cent in over 2/3 of other states will defeat the overall intention of the drafters of the Constitution and will certainly lead to absurdity.”