Former President of the Nigerian Bar Association, NBA, Dr. Olisa Agbakoba SAN, has written to the Independent National Electoral Commission, INEC, requesting the “correct” interpretation of certain sections of the 1999 constitution that determines who wins a presidential election.
He noted that Section 134 of the 1999 Constitution prescribes a presidential candidate meet the requirements to become the president of Nigeria.
“The Electoral Act, 2022 states that “…the result (in an election to the office of the President or Governor) 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,” he stated.
In a letter, Agbakoba said he is worried that there can be multiple interpretations of section 134 of the 1999 Constitution, which prescribed the requirements to be met by a presidential candidate to become the president of Nigeria.
Does this mean the Federal Capital Territory, Abuja is incorporated in the 24 States? Or…does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?
In his words: “In case of an election with only two candidates, Section 134 (1) of the 1999 Constitution states that a presidential candidate shall be deemed to have been duly elected where he has “the majority” of votes cast at the election, and has 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 Federal Capital Territory, Abuja.
“But in a case where there are more than two presidential candidates, Section 134 (2) states that a candidate shall be deemed to have been duly elected where he has the ‘highest number’ of votes cast at the election and 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.”
Arising questions
Agbakoba asserted that the constitution describes the winner in two different languages. “One, the winner must score the majority of votes [in section 134 (1)] and the other, the winner must score the highest number of votes [in section 134 (2). This is confusing,” he wrote.
The Senior Advocate of Nigeria also said this section of the law wasn’t explicit enough as to whether the two-thirds votes a candidate must secure as mentioned in the law, would include or exclude the Federal Capital Territory (FCT), Abuja.
“if to be declared winner of the presidential election, a candidate must win a quarter of votes in 24 states– which makes up the two-thirds– as well as the FCT, or without the FCT.
“Does this mean the Federal Capital Territory, Abuja is incorporated in the 24 States? Or…does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?
“Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 States of the Federation but failed to score one-quarter of the votes cast at the Federal Capital Territory, be duly elected as President of Nigeria?” he queried.