Before the results of the winner of the 2023 Nigerian presidential elections held on Saturday was announced last night, on the 28th of February 2023, there have been widespread allegations of electoral rigging. Many have alleged that the Independent National Electoral Commission (INEC)—the body tasked with organising general elections in Nigeria—has proven to be compromised in some of the ways it has handled the election. Protests led by some groups against the alleged electoral malpractice took place in Abuja on Tuesday. Amid this atmosphere of suspicion and uncertainty, there have also been debates about what the Nigerian Constitution says about the role Abuja, the country’s capital, plays in the presidential election.
The debates surfaced after INEC, on Tuesday, announced that Peter Obi of Labour Party won the Abuja election by a vast margin, landing 281,717 votes. However, Bola Tinubu of All Progressives Congress(APC) had 90,902 votes and Atiku Abubakar of People’s Democratic Party(PDP) had 74,199.
Neither Tinubu nor Atiku won a quarter of the votes in Abuja, which has caused many to point to a portion in Nigeria’s 1999 Constitution which states that to be declared president, a candidate must have no less than one-quarter of the votes cast at the election in at least two-thirds of all the states “in the Federation and the Federal Capital Territory, Abuja.”
There have been arguments over whether or not the Constitution states that a candidate must have one-quarter of the votes in Abuja to win the presidential election.
What the Constitution says
Section 134 (2) of the Nigerian constitution says:
“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.
“(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.”
Agbakoba:
Olisa Agbakoba, the former president of Nigerian Bar Association (NBA), was one of the first to point out the different interpretations that the wording of that line of the Constitution might hold. He noted this in a letter he wrote to the INEC this January.
In his words:
“(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 Federal Capital Territory, Abuja is incorporated in the 24 States?
“(2) 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 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?
“(3) 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 Federal Capital Territory, be duly elected as President of Nigeria?
The former NBA president concludes by saying he is uncertain of the right answers to the questions he has raised.
Falana disagrees
If Agbakoba was uncertain, Femi Falana is entirely confident that it is not necessary that a candidate has one-quarter of the votes in the FCT before they can be declared president. The senior lawyer and human right activist said this during an interview with Channels TV in January.
“The courts have ruled that pursuant to Section 299 of the constitution, that the FCT should be treated as a state. That is the law,” he said.
Section 299 of the Constitution says: “The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.”