By Bamidele Kolawole

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In the past few weeks, the status of the Federal Capital Territory as regards the 2023 general elections has gained the attention of so many and it has occasioned such curiosity and inquisitiveness as to whether a win or lose in FCT is capable of determining the winner of the presidential election.

The status of the Federal Capital Territory has been settled long before now, so in my opinion, it should no longer be a stumbling block to our Electoral system for any reason whatsoever.

 There are plethora of authorities on the Status of the FCT, wherein the SUPREME COURT interpreted sect.299 of the 1999 CFRN (As Amended).

According to the Supreme Court in the earliest among the available authorities, FAWEHINMI Vs BANANGIDA, (citation not supplied), it was stated clearly that FCT,ABUJA is equivalent to a state.

The underlaying principle that could cause some discrepancy is the fact that, the National Assemblies will legislate for the FCT, National Agencies under the National statute will be replicated by the FCT Authority, to serve the purpose of a State office.

 Yes, of course there may not be a particular office referred to as GOVERNOR’S but, there is an equivalent in the Minister of the FCT. Now to the issue of the status of the FCT, ABUJA, as it concerns the ELECTORAL Law provisions that,”—and the FCT”.

In my opinion, it does not mean that any Presidential Candidate, who failed to score the required 25% of the total votes cast in the FCT, like in other conventional states, even if he won by simple majority would not be declared winner.

That will not be correct,I believe that provision is just to further strengthen the assertion or declaration that the FCT is of the same Status with other states.

If for a flimsy reason that some candidate failed to grab the 25% requirement, he won’t be declared winner, then we will surely have crisis on our hands, because it is a possibility that some candidate could fail in that very condition and may even have an overwhelming landslide majority.

 In the absence of a rider or proviso to resolve the situation, it will lead to an unresolvable Dilemma.

Not even Electoral College as an alternative. My sincere opinion on this issue, is that, the provision is inserted to show and to keep reminding ourselves that the FCT is of the same Status with a State.

The crux of this discourse encapsulates the legal requirements which must be fulfilled before a candidate in a Presidential Election could secure the seat of power.

By the combined provisions of Sections 299(1) and 134(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Federal Capital Territory Abuja is ipso facto and ipso jure a state within which such candidate must secure the required number of votes before he could be declared a winner.

This would be elaborated upon hereinafter. 

First and foremost, it is note worthy to state that courts have been more inclined to interprete the law using the literal rule particularly where the provisions of the law is lucid and unambiguous. 

At this juncture, it wouldn’t be out of place to ipssisma verba reproduce the provisions of Section 134(2) which provides as follows:

“A candidate for an election to the office of the 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.”

 On the other hand, Section 299(1) of the Constitution stipulates that the provisions of the Constitution shall apply to the Federal Capital Territory (FCT), as if it were one of the States of the Federation.

Elaborating comprehensively on the Status of the Federal Capital Territory, Abuja, the Court of Appeal in the case of *Baba-Panya v President, F. R. N.(2018) 15 NWLR (Pt. 1643) 395* held inter alia:

“It is therefore, doubtlessly clear that by virtue of Section 299 of the Constitution of the Federation, the Federal Capital Territory is in law a State. In others words, the Federal Capital Territory should be treated as one of the States in the Federal Republic of Nigeria. It follows therefore, that bodies like the Federal Capital Development Authority are to be regarded as an agency of “a State”, independent of the Federal Government.

 It would appear that the only relationship existing between the Federal Government and the Federal Capital Territory, is that its executive and legislative powers and duties are exercised for it by the President through the Minister of the Federal Capital Territory and the National Assembly respectively.

 From the provision of Section 299(a), where the President through the Minister of the Federal Capital Territory Acts, he does so as a Governor of a State, so also where the National Assembly legislates for Abuja, it does so as a State House of Assembly”.

In the light of the foregoing, I am of the opinion that the clear provisions of Section 134(2) (b) wherein the conjunctive word “and” is indicated of the impeachable fact that the Federal Capital Territory Abuja is one of the constituent states in which a candidate contesting the seat of president must secured at least 25% of the valid votes cast.

And must not be construed to be a separate territory which on its own must be used to determine the winner of the election as erroneously argued by some scholars in the presidential election which took place on 25th February, 2023.

In a nutshell, the mathematical precision of this constitutional requirement could be construed to mean that a candidate contesting the office of the president must secure at least one quarter of valid votes cast in each of the states of the Federation summing up to 36 states plus Federal Capital Territory Abuja which is 37 and not for the Federal Capital Territory to be divorced from the constituent states and be construed to a place which must on its own determine the winner of the election as wrongly canvassed by some Nigerians.

Since this question of law is before the presidential election tribunal, I will not say much on it, when you read Section 299 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provided that; ” The provisions of this constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the state of the federation” you will discovered that F.C.T Abuja, is treated as one of the states of the federation in the 1999 CFRN (AS AMENDED).

The area of confusion in the mind of some persons is S. 134(1)(b) CFRN ; “A candidate for an election to the office of the president shall be deem to have been duly elected, where, there being only two candidate for the election…

(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.”

The word “AND” as used above only means that the vote cast in Abuja is inclusive in computation of presidential election result but that doesn’t place Abuja vote cast over and above vote casts in other states of the federation, is like when you are doing counting, e.g 1, 2, 3 & 4. Meaning that 4. Is one of the union in the set.

S. 234 (1)(b) is parimaterial with section 179(1)(b) which talks about Gubernatorial election; ” A candidate for an election to the office of Governor a state shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election- …

(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 local government areas in the state.

A candidate in the Gubernatorial election does not have highest vote cast / or 25% of total vote cast in the state capital before he or she can be declare as Governor elect in the state and that’s my submission on this.

Abuja is first talked about in Chapter 1 of the 1999 Constitution of the Federal republic of Nigeria (CFRN) as amended, Section 2(2) of the CFRN says that Nigeria shall be a Federation consisting of States and a Federal Capital Territory (FCT).

Section 297 of the CFRN talks about the FCT:

There shall be a FCT, Abuja the boundaries of which are as defined in Part 11 of the first Schedule to this Constitution.

The ownership of all lands comprised in the FCT, Abuja shall vest in the government of the FRN.

 Section 298 – The FCT, Abuja shall be the Capital of the Federation and seat of the Government of the Federation, Abuja is the seat of the Federal government of Nigeria, unlike other 36 states of the Federation, they all have Governors but Abuja does not, the Minister of FCT acts as the Governor.

The Federal Capital Territory (FCT) is the capital territory of Nigeria, and it is in this territory that the capital city of Abuja is located. The FCT is not a state but is administered by elected officials who are supervised by the federal government. Federal Capital Territory (FCT), also known as Abuja Federal Capital Territory, administrative territory central of Nigeria, created in 1976.

Recently, Abuja indigenes seek full state status for the FCT which means it is not a state, they want their own State Governor, House of Assembly members, “Section 299(1) of the Constitution provides that the provisions of the Constitution shall apply to the Federal Capital Territory as if it were one of the states of the Federation. It means that the FCT is the 37th state; this is well entrenched and established in the case of:

 BABA-PANYA V. PRESIDENT, F. R. N. (2018) 15 NWLR (PT. 1643) 395, the Court of Appeal held inter alia: It is therefore doubtless clear that by virtue of Section 299 of the Constitution of the Federation, the Federal Capital Territory is in law a State.

But it is not mandatory that a Presidential candidate must of a compulsion win Abuja contrary to what some people are saying in some quarters, what the law posits can be found in Section 134 of CFRN:

2 (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 each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

(4) In default of a candidate duly elected under the foregoing subsections, the Independent National Electoral Commission shall within seven days of the result of the election held under the said subsections, arrange for an election between the two candidates and a candidate at such election shall be deemed elected to the office of President if –

(a) he has a majority 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

(b) he 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.

(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 candidate shall be –

the candidate who scored the highest number of votes.

It can be said that Abuja is treated as a state when it comes to counting the 2/3 number of states that must be won in the Presidential election by any candidate who will emerge as the winner – section 134 (b) CFRN refers and has only a senatorial seat unlike other states.

In the past few weeks, the status of the Federal Capital Territory as regards the 2023 general elections has gained the attention of so many and it has occasioned such curiosity and inquisitiveness as to whether a win or lose in FCT is capable of determining the winner of the presidential election.

The contention had been as regards to the provisions of section 134(2b) of the 1999 constitution which provides that a candidate for an election to the office of president shall be deemed to have been elected where: “…he 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”.

The argument is whether the interpretation of the said provision means before a candidate for an election to the office of President can be deemed to have been duly elected, he must have secured 25% of the votes in at least two-third of the 36 states and also secure additional 25% of the votes cast in the FCT (with FCT separated from other states of the federation) or that he must secure 25% of the votes in at least two-third of all the states(36+1= 37)( the FCT as the thirty-seventh state) in the federation. The question then is, is winning at the FCT by a candidate compulsory or not?

To determine the interpretation of the provision the judiciary has over time employed the canons of interpretation which are; the literal rule, the golden rule and the mischief rule.

The literal rule posits that the ordinary grammatical meaning of the word should applied. The golden rule is to the extent that the literal rule can only be used where it would not occasion absurdity and where it would produce absurdity, the intention of the legislature/drafters will be applied.

 The mischief rule is used to determine the mischief the legislation intends to cure. In the provisions of section 134(2b), the word “and” seems to be the cause of ambiguity.

The word “and” if given a literal rule approach, it can be used either disjunctively or conjunctively. Where it is used conjunctively, it would mean that the candidate with the majority of lawful votes need not score 25% of votes in FCT (that is, separated from other states), FCT would be in this case the 37th state and not independent from other states.

Where the word “and” is used disjunctively, for a candidate to emerge as the winner of election must secure 25% of total votes cast in 36 states and also 25% of total votes cast in FCT.

To further determine the status of the Federal Capital Territory, section 299 of the constitution of the Federal Republic of Nigeria provides: The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation; 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.

 In the case of Baba-Panya V President, Federal Republic of Nigeria (2018) 15 NWLR (Pt. 1643) 395. The Court of Appeal held that: “… the Federal Capital Territory should be treated as one of the States in the Federal Republic of Nigeria..”.

The Federal Capital Territory, although not fully a state but it is like a state which has similar governing authorities like that of every other state in the federation.

In my opinion, to hold the view that a 25% win in the FCT is compulsory is like giving too much power to the FCT, making FCT superior to other states.

 In other words, it can solely determine the fate of elections from other states of the federation. In Ibori V Ogboru, the court held that the Federal Capital Territory is to be treated like a State, which is not superior or inferior to any state of the federation.

I think it would be rather strange to determine that the intention of constitution draftsmen would be that 25% votes win in FCT is a prerequisite to the determining the winner of a presidential election.

In Awolowo V Shagari (1979) LPELR-SC.62/1979, the court held: “it is also relevant, we think, to point out that anybody called upon to interpret any kind of statute should not, for any reason, attach to its statutory provision, a meaning which the words of the statute cannot reasonably bear.

If the words used are capable of more than one meaning, then the person interpreting the statute can choose between these meanings, but beyond that he must not go”

Conclusively, the interpretation of laws is the duty of the court. it is better to take relief in the decision of the court as regards the interpretation.

The status of FCT in the just concluded election is that of a state due to the provision of section 134 (2) (b) of the 1999 Constitution as amended.

Going forward, what the candidate who emerges needs to do is to have not less than one quarter of the votes cast in not less than two thirds of all the states of the federation totalling 37states, FCT inclusive .

 The simple arithmetic that needs to be done is to look at the vote cast in each of these states to decipher if the candidate who has been declared winner has one quarter of vote cast in at least two-thirds of all the states plus FCT (37).

The word ‘and’ is a conjunction which shows that FCT will be seen as a state and it is not mandatory that such candidate must have one quarter of vote cast in FCT, what is important is for him to have scored one quarter of vote in at least two third of the states of the federation which is 37states with FCT.

The nexto question is what is the two-thirds of 37states? Based on my own calculation, 25states is the two third of 37states and this does not make any of the states a sine qua non for emergence as a winner.

 What is pivotal is for the candidate declared to have gotten the aforementioned result from at least any two-thirds of all the states of the Federation.