NO ONE NEEDS 25% IN ABUJA TO BECOME PRESIDENT OF NIGERIA, By JESUTEGA ONOKPASA

I am still rather perplexed that some people are still trying to stir a storm in a teacup regarding the provisions of the Constitution as to what is required for a candidate to be returned elected in a presidential election.

One such intervention I recently came across was by Adeyinka Kotoye, SAN, someone I consider a brilliant lawyer by any estimation.

His conclusion is that the Constitution mandates a candidate, having fulfilled all other requirements, to in addition, necessarily score at least one quarter of the votes in the Federal Capital Territory, FCT, Abuja!

Now the relevant constitutional provision for us is Section 134 (2), the provision that has applied in every presidential election in this republic apart from the very first one, back in 1999, which featured only two candidates in Olu Falae and Olusegun Obasanjo.

In subsection 2 of Section 134, the Constitution provides that “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”.

Now, the Constitution lists only 36 states in its schedule therefore there are only 36 states in Nigeria and the FCT, Abuja is not one of them.

Nevertheless, the Constitution provides, in Section 299, that it’s provisions shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.

It further provides that all the legislative, executive and judicial powers vested in the House of Assembly, Governor and courts of a state shall, respectively, vest in the National Assembly, the President of the Federation and in the courts which by virtue of its foregoing provisions will be courts established for the Federal Capital Territory, Abuja;

Learned Silk Adeyinka Kotoye apparently avers that since the Constitution herein references legislative, executive and judicial powers in this section, the Constitution only intended for the FCT to be treated as a state for these purposes and only to that extent!

With respect, this is quite wrong and, in fact, totally contradicts what is altogether Kotoye’s rather overly legalistic approach to the subject, since without the compliment of a clear provision that this is the case, he asserts that it is, even though purely grammatically speaking, the Constitution was thereby, merely stressing the point that the FCT is to be treated as a state for the purpose of the exercise of legislative, executive and judicial powers in addition to all other reasonable purposes for which it would be meet to treat it as such!

It is therefore tenable to take it that the Constitution treats the FCT as a state for all reasonably applicable purposes including, and compellingly so, for the purpose set out in Section 134 regarding election to the office of President, more so when it specifically mentions the FCT therein.

I would even assert that the FCT would still enjoy its proper status as set out in Section 134 even if it had not been mentioned thereunder, at all, because it would be contrary to Section 299, quite apart from being repugnant to natural justice, equity and good conscience, for citizens and voters in the territory to be reduced to a status below that of their counterparts and fellow countrymen and women in the various states for the purpose of electing a President for the country they are equal citizens of!

Barrister Onikepo Braithwait has, elsewhere, rightly pointed out that the only way the Constitution could have referred to the FCT alongside the states for the purpose of treating it as a state in accordance with Section 299 is to mention it by name as it does in Section 134 and that no further significance should be accorded it on that account.

I believe this is selfevidently the correct approach to section 134 since, the FCT is not actually a state, therefore not a 37th state and not coverable by an alternative expression such as “one quarter of the votes in the 37 states”, which would be a total absurdity.

In fact, I wonder if Kotoye would have come to the same conclusion had the Constitution listed the states and the FCT, seriatim, and phrased Section 134 thus: “two thirds of the following constituencies that make up the Federation, being 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, Zamfara, and the FCT, Abuja”?

And, for God’s sake, let no one raise eyebrows to my substitution of the word “constituency” for “state”; the Constitution, itself, in Section 132(4) uses the term when it references the entire Federation as constitutive of a single “constituency” for the purpose of a presidential election.

That aside, would Kotoye then had attached the same import to the word “and” as he did in his article?

Perhaps, the strangest dimension to Kotoye’s intervention is that he implores us to apprehend the word “and” much as a papal bull might be received, nay, as a precept of The Lord, Himself should be taken to heart!

Indeed, Kotoye’s fixation on the word “and” ultimately only serves to expose a quite perplexing detention, on his part, by a rather narrow-minded approach to his chosen subject matter.

Of course the key to understanding any rule of law is to become familiar with its exceptions.

Thus, for example, and, as a general rule, it is a crime, being either murder or manslaughter, to have deprived one’s fellowman of his life.

But, then absolutely everyone knows that and, really nothing much would have been said in the estimation of a lawyer if you kept repeating it and sounding rather like a broken record.

As such, to understand the law on homicide is to become abreast of those circumstances in which a human being might have been killed without a crime having been thus committed.

After all, and as every lawyer knows, it is not the killing of a human being, per se, that is a crime but the wrongful killing of one.

Accordingly, understanding the circumstances whereby the diseased, though having died by the hand of another, is nevertheless deemed in law as having not been murdered, or, otherwise wrongfully killed, such as where the defense of mistake or self-defense, or even necessity, avails his killer, would be a good starting point in compassing the law on homicide.

It is actually to the extent that one apprehends the law from such standpoints that he comes to a true understanding of it.

Any other approach is really untenable and quite simply useless.

What is remarkable about Kotoye’s article is not merely that he kept happing on the word “and”: what is truly remarkable is that it was really all he seemed to have to say at the end of the day!

Indeed, it is truly astonishing how much devotion Kotoye pays to an extended adumbration of the word “and”, which he treats in paragraph after paragraph, not much better than might be expected of a law student writing a thesis on the subject.

He thus quite inexplicably completely ignores the more important question of where the word “and” may not be construed in tandem with the general rule that would ordinarily otherwise superintend its construction.

Where it is unreasonable, inequitable, absurd, nonsensical, ridiculous, unworkable etc to construe the word “and” in a statute or other instrument as it ordinarily should, every lawyer knows it is not and cannot be so construed because it has thereby been brought within the exceptions to the general rule of its ordinary interpretation.

Indeed, the sum total of Kotoye’s rather quite unimpressive intervention is to invite the rest of us to entirely invest ourselves in the textbook default denotation of the word “and”, and having done so, then most irresponsibly proceed to play the ostrich with its obvious and equally solidly established exceptions!

In short, merely on the strength of the ubiquitously known meaning of the word “and”, Kotoye beckons us to embark with him on a macabre journey into the pedestrianisation of the true import of the law, in a doomed direction that should only see us elevating the FCT, Abuja effectively into a super jurisdiction, indeed, a supra constituency, higher than a state, when all the Constitution actually sought to do was to bring it at par with the states but, even at that, for limited purposes, only!

Thus, while the FCT is actually less than a state but the Constitution gratuitously treats it as one for certain purposes, Kotoye insists we should consider it to be, not even merely primus inter pares with respect to them, but prince in the midst of subservient states, constitutionally subordinated to it.

What then is the true position of the law as to winning one quarter of the votes in the FCT, Abuja?

I respectfully disagree with the eminent luminaries who agree that it is not compulsory to get 25% in Abuja but then opine that it means the candidate with the highest number of votes should also have made one quarter in two-thirds of 37 states to be declared winner.

I think the only sensible construction of Section 134 of the Constitution is to take it as meaning only what is stated in its first part, that is one quarter, therefore 24, of the 36 (and only) states of the Federation, before Kotoye’s almighty “and” appears, and, then to take the “and” as meaning that the FCT, Abuja, would suffice for one of those states where the candidate with the highest vote tally has made one quarter in only 23 of the 36 states but has also done so in the FCT.

In any case, we would still arrive at the exact same resolution even if we were to accept the fiction of 37 states.

It is the law that where the precise obligation incident on any person is not determinable, the law shall impose a lesser, rather than a greater obligation.

There is no such thing as two-thirds of 37 states because 2/3 of 37 is 24.6 plus.

While a mathematician might be inclined to then round up the 0.6 to a whole number, 1, thus bringing us to 25 states, and, thus a greater obligation than what was legally envisaged, the law actually requires us to round it down to 24 in order that a lesser obligation, be thereby imposed.

Thus what the law requires is 25% in any 24 states provided that the FCT Abuja, shall suffice as one of those states, where the winner has 25% in Abuja but only in 23 of the 36 states.

While waxing needlessly verbose on his frolic into legalism, Kotoye also apparently failed to imagine the potential unworkability of his prescription.

Suppose we had just three candidates for a presidential election and one of them scored 10 million votes and made 25% in 24 states but not in Abuja; the other scored 5 million and made 25% in 23 states and also in Abuja; and, the third scored two and a half million votes with one quarter in 24 states and in addition to that, 25% in Abuja?

In this scenario, wherein a winner had clearly emerged, nevertheless going by Kotoye’s approach to the topic, we wouldn’t have a President-elect but would have to conduct the election all over again!

Learned Silk Kotoye is an exceedingly brilliant lawyer and most erudite legal luminary.

Nevertheless, in this particular instance, he only ended up treating us to an entirely unwanted intervention having completely veered off tangent into the realm of the pointlessly academic and, even worse, the most abhorrently and indefensibly legalistic.

Legalism, of course, is the redoubt of the lazy lawyer and refuge of the indolent judge.

Whatever else it is or is not, legalism is universally derided as an abomination to jurisprudence, and rightly so.

There are too many people in this country willing to waste their time over shenanigans.

That is bad enough but what is even more condemnable is their proclivity for also wasting the time of the rest of us while engaged in their inanities.

Such tendencies are unwholesome, quite apart from being unhelpful and inimical to nation building.

It is not at all true that we have any questions regarding our constitutional provisions for electing a President for our country.

Indeed, our Constitution is not at all vague or vacuous as to what is to be fulfilled in order to win a presidential election.

Where there are more than two candidates, whomsoever amongst them has scored the highest number of votes and made at least one quarter in no less than two-thirds of the the states of the Federation, in so far as the FCT, Abuja, may suffice as one of those states, and, as determined by the Independent National Electoral Commission, INEC, and declared winner by that same INEC to whom a presumption of regularity applies in that regard, has won the election and thereby returned elected.

Asiwaju Bola Tinubu is the one that made the cut this election cycle.

You do not have to like him but according to the law to which we are all subject, he is the winner, was returned elected, and is the President-elect of Nigeria.

Onokpasa, a lawyer, and member, All Progressives Congress, APC Presidential Campaign Council, writes from Abuja.