Section 134(2) of the 1999 Constitution lays out two requirements to be elected as President of the Federal Republic of Nigeria.
First, if there are more than two candidates, the President-elect must win the highest number of votes.
Second, the President-elect must win “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.”
This second condition has become the subject of a major constitutional dispute in recently filed election petitions by both Peter Obi, presidential candidate of the Labour Party, and Atiku Abubakar who stood on the platform of the People’s Democratic Party on February 25th, 2023. The petitions turn on the ambiguity in the language.
Does the provision mean that the winner must get 25% of the vote in at least two-thirds of the states, including the Federal Capital Territory?
Or, does the provision mean that the winner must get 25% in at least 24 states and, separately, 25% in the FCT itself?
Atiku and Obi are arguing for the second interpretation, which would deny Bola Tinubu of the All Progressives Congress the right to be immediately declared as President. While Tinubu met the 25% requirement in 30 states, according to still-disputed results certified by INEC, he won only 19.76% of the vote in the FCT.
If the Supreme Court were to endorse this interpretation, the Constitution would require a run-off election between Tinubu, the candidate with the highest number of votes, and the “one among the remaining candidates who has a majority of votes in the highest number of States.”
Interpreting the word “majority” to mean “over 50%” would allocate the second run-off slot to Peter Obi. Obi secured massive margins in 7 states (Abia, Anambra, Delta, Ebonyi, Edo, Enugu, and Imo) compared to Atiku Abubakar’s 4 (Adamawa, Gombe, Kebbi, Yobe).
This dispute could throw the election back to the Nigerian people, potentially consolidating the opposition under Obi’s Labour Party. The FCT would forever be elevated to special kingmaker status, giving it pride of place in our presidential contests.
But which interpretation is more viable: the FCT-included interpretation or the FCT-as-kingmaker interpretation? To decide, let’s start with the text.
“This dispute could throw the election back to the Nigerian people, potentially consolidating the opposition under Obi’s Labour Party. The FCT would forever be elevated to special kingmaker status, giving it pride of place in our presidential contests.”
Ameze Belo-Osagie Tweet
THE GOLDEN RULE/THE ABSURDITY DOCTRINE
Generally, constitutional interpretation seeks to give effect to the plain meaning of words. If there is a clear, literal meaning, the judiciary applies it and stops there.
Judges can only depart from the plain meaning when a literal interpretation would create results that are manifestly absurd or completely contrary to public policy. This principle is known in British common law as “the Golden Rule” and in its more modern American variant as “the Absurdity Doctrine.”
Judges can only depart from the plain meaning when a literal interpretation would create results that are manifestly absurd or completely contrary to public policy.
The application of these rules is deeply fraught and represents a serious exercise of counter-majoritarian power. When the judiciary applies either rule, they are effectively ignoring the literal meaning of a law that was passed by a democratically-elected legislature in favour of another interpretation that they devise themselves, without direct approval or input from the public.
Worse still, they are giving themselves the power to decide what is “contrary to public policy” against the clearly expressed will of the legislature.
After all, if the legislature believed the law was contrary to public policy, they would presumably not have passed it in the first place.
For this reason, the general consensus is that these rules should be applied sparingly and with caution.
The Golden Rule and the Absurdity doctrine are not invoked whenever a law is merely misguided or unwise. They are reserved for laws that create results that are completely illogical, totally ridiculous, and wildly unreasonable.
“The Golden Rule and the Absurdity doctrine are not invoked whenever a law is merely misguided or unwise. They are reserved for laws that create results that are completely illogical, totally ridiculous, and wildly unreasonable.”
Ameze Belo-Osagie Tweet
Textual meaning
Is there any basis to depart from the plain meaning of the text? Is the FCT-as-kingmaker interpretation not just misguided, but absurd?
Consider four arguments in favour. First, the FCT-as-kingmaker interpretation would mean that even a candidate who won 100% of the vote in all 36 states but 24% in the FCT could not be elected as President without multiple rounds. It could generate a hugely wasteful electoral process that simply prolongs the inevitable: the emergence of the most popular candidate, by numbers, as President-elect of Nigeria.
Second, giving the FCT a special status would incentivise candidates to spend a disproportionate amount of their campaigning resources in the capital, perhaps to the detriment of the rest of the nation.
giving the FCT a special status would incentivise candidates to spend a disproportionate amount of their campaigning resources in the capital
The overall effect of the 25% criterion is that our presidential candidates have to assemble a broad and diverse coalition that represents multiple ethnic groups and religions, rather than win off the strength of a single region or a small handful of high-population states, like Lagos and Kano.
This rule would stand in tension with that policy, concentrating political energy in a small territory that is already the seat of the Federal Government.
Third, the rule would dangerously elevate the stakes of the presidential contest in the FCT. If securing a minimum result in FCT becomes a “do or die” affair, we could see even more extreme variants of the thuggery, intimidation, and rigging witnessed in this most recent election, in the heart of the capital.
Fourth, the rule would encourage gamesmanship. A canny and strategic politician could use it to win outsize national influence and build a disproportionately powerful political structure. Imagine, for example, that a single politician established overwhelming popularity in the FCT.
They could run for President every 4 years with the goal of preventing any other candidate from securing 25%, force a runoff, and then extract big concessions from the leading 2 candidates in exchange for their endorsement in the second round. To put it mildly, these outcomes should prompt caution.
FCT, DEMOCRATIC PAUPER
However, a proposal is not “absurd” simply because you can raise some counterarguments against it. An “absurd” proposal is one that is completely devoid of logic, something that there are no good arguments in favour of.
So, let’s consider the other side. The FCT, contrary to popular perception, suffers from a serious democratic deficit. It is not “no man’s land,” that most contentious of phrases.
The territory that now houses our federal government is the traditional home of the Gbagyi people (alongside other smaller ethnic groups). The Gbagyi were forcibly displaced without due process or proper compensation in order to build the capital; they have persevered in pressing legal claims against the federal government for over 30 years but have seen little success.
The Gbagyi were forcibly displaced without due process or proper compensation in order to build the capital
Much of their population still live in the surrounding area, which is extremely underdeveloped in comparison to neighbourhoods like Maitama, Asokoro, and Wuse II.
The Gbagyi do not enjoy the same rights and privileges as other Nigerian citizens. Unlike every other citizen, they have no state house of assembly or state governor that they can elect to deal with day-to-day issues of housing, healthcare, education, or employment. They do not benefit from “indigene status” with regard to government employment.
And, while they have representation in the federal legislature, that representation is diminished in comparison to other states.
“The Gbagyi do not enjoy the same rights and privileges as other Nigerian citizens. Unlike every other citizen, they have no state house of assembly or state governor that they can elect to deal with day-to-day issues of housing, healthcare, education, or employment.”
Ameze Belo-Osagie Tweet
In the Senate, every state has 3 senators, but the FCT has only 1. In the House of Representatives, the seats are generally divided by population. The FCT delegation is the smallest in the chamber, despite the fact that it is not the smallest territory by population.
Its delegation is just 2 representatives, less than half of the 5 representatives allotted to the next smallest states, Nasarawa and Bayelsa. This means that, for all intents and purposes, the laws that determine their day-to-day lives are largely shaped by people they did not elect and could never remove from office, no matter how unpopular.
The closest thing FCT residents have to a local executive is the Minister for the Federal Capital Territory. That position though, is appointed by the President, rather than elected by people who live there. In the entire history of the Fourth Republic, there has never been an FCT Minister who is an indigene of Abuja or the surrounding areas. All prior ministers have been from the North-West or North-East geopolitical zones.
FCT, DEMOCRACTIC PRINCE
The best argument in favour of the FCT-as-kingmaker interpretation is that it works as a democratic balancing provision.
In exchange for the lack of a state structure, the lack of a local executive, and diminished power in the federal legislature, the FCT has outsize power in picking the President. One could push back at this point.
After all, while the Gbagyi specifically are locked in a uniquely unfair representation trap, they are not the only people to live in the FCT. But who else lives there? Citizens from all over Nigeria.
The FCT, by virtue of being the seat of government, draws people from all over the country. To the best of our knowledge, given the questionable nature of our census, its population is a rough microcosm of the nation as a whole.
So giving the FCT a special kingmaker status does not actually award special privileges to a discrete or particular ethnoreligious group. It awards special privileges to citizens who, by virtue of where they live, do not have other opportunities to determine who holds political power over them.
On balance, the best way to resolve the FCT’s democratic deficit is almost certainly to pass the Mayoralty Act, a cause that has been championed by the FCT’s new Senator-elect Ireti Kingibe. This Act would give FCT residents the opportunity to vote on a mayor and exercise some control over their local affairs.
“…the best way to resolve the FCT’s democratic deficit is almost certainly to pass the Mayoralty Act.”
Ameze Belo-Osagie Tweet
But the law does not permit us to ignore the literal meaning of words, simply because there are other solutions we find more palatable. Since there do seem to be some reasonable arguments in favour, it’s difficult to dismiss the FCT-as-kingmaker interpretation on the grounds of absurdity.
The plain meaning rule
Thus, we return to the plain meaning of the text. The word “and” in ordinary language is a conjunction; it indicates addition. But in the context of Section 134, that hardly settles the question.
The “addition” in the clause could be (a) to “add” the FCT to the 36 states, making 37 territories that the 25% criterion applies to or (b) to “add” the FCT as a separate requirement, to which the 25% criterion applies.
Clarifying the language requires invoking another rule of constitutional interpretation: the Mischief Rule.
The mischief rule
The Mischief Rule was first set out in Heydon’s Case (1584). It provides that, when plain meaning is uncertain, we try to place the disputed legal provision in context.
First, what was the common law before this particular provision was passed?
Second, what was the “mischief” or problem that the legislature was trying to solve by passing this provision?
Third, what solution did the legislature come up with?
Fourth, why did they choose that solution? Fortunately for Nigerians, uncertainty about how to interpret the 25% criterion is not new.
Awolowo v. shagari
The 1979 presidential election produced a comparable, although not entirely similar debate. At the time, there were 19 states in the federation, a number that is not directly divisible by 3.
Alhaji Shehu Shagari had indisputably won the highest number of votes, gaining 5,688,857 votes in comparison to Chief Obafemi Awolowo’s 4,916,651 votes.
The problem was Shagari had won 25% in 12 states, but in the critical 13th state of Kano, he only won 19.94% of the vote. Technically speaking, ⅔rds of 19 is 12 and ⅔rds. But how does one win 25% of 12 and ⅔rds states?
by an formula necessary
Then, as now, an army of well-heeled SANs descended on the Supreme Court to try to resolve the question. The proposals were all over the place. Some suggested that the Court should calculate whether Shagari had won 25% of ⅔rds of Kano.
Unfortunately, Kano at the time had 8 electoral districts, a number that is also not divisible by 3. So rather than solve the divisibility problem, this proposal just recreated the issue at the state level.
Others suggested that Shagari could win by getting a number that was equivalent to 25% of ⅔rds of the entire population of Nigeria i.e. by winning ⅙th of the electorate as a whole. This was rejected on the basis of the language in Section 34(A)(1) of the Electoral Decree of 1977 that governed the case. (While the 1979 Constitution [PDF available here] had been enacted, it did not go into force until 2 months after the ‘79 election.)
Section 34(A)(1) stated that the candidate must win “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.”
This implies that the president had to win 25% in each state individually, rather than 25% of the overall population of a block of states. Eventually, the Supreme Court declared Shagari the winner. But it left many questions unresolved.
Eventually, the Supreme Court declared Shagari the winner. But it left many questions unresolved.
POLITICALLY EXPEDIENT JUDGEMENT
When the Supreme Court decides a case, they generate a result—declaring who won that particular case—and a precedent—a legal principle that supports the result and is binding in future cases.
In Awolowo v. Shagari, the Supreme Court held that, even if the 25% criterion had not been met, there was “substantial compliance” with the Electoral Act and that was sufficient to uphold the election.
In other words, without taking a clear position on what exactly the 25% criterion meant, they found that Shagari had come close enough to let the result stand.
This opinion generates a clear outcome: Shagari wins the election. But what legal principle can we derive from the case? The case does not really provide a clear logic.
Was Shagari’s election acceptable because of the large margin of votes between him and Awolowo?
Or was it mainly that 19.96% was considered sufficiently close to 25%?
What about a future candidate (like Bola Tinubu) who scored close to, but not quite 19.96%?
Would something lower than Shagari’s 19.96 still be sufficient or is that number the absolute minimum?
What if there were 20 states, rather than 19? Would we then round up to 21?
past as prologue
The case provides no guidance on any of these questions. To that extent, it’s unsurprising that Nigerian legal experts consider it to be more of an exercise in political pragmatism than a sharply reasoned legal opinion. The Awolowo v. Shagari case does not settle our current dispute, but it can help clarify the background “mischief” that the 1999 Constitution’s drafters were trying to solve.
As a result of the case, the 1999 Constitution’s drafters were aware of two key facts.
First, they knew that picking a number of territories that isn’t divisible by 3 could lead to a serious constitutional crisis.
Second, they knew that the Awolowo v. Shagari opinion would likely not provide very clear guidance to a future Supreme Court, leaving us to potentially relitigate the same issue. Given that knowledge, why would they recreate the exact same problem? If the FCT-included approach is correct, then we’re right back where we started.
If the FCT-included approach is correct, then we’re right back where we started.
The constitution requires 25% of the vote in ⅔rds of 37 territories (the 36 states and the FCT). Once again, 37 is not divisible by 3, so we are forced to ask: what is 25% of 24 and ⅔rds? When we apply the Mischief rule, we seem to get a straightforward answer.
The problem that the 1999 drafters were trying to solve was that the 25% criterion applied to a number of territories that was not divisible by 3. They solved it by fixing the number of states at 36, which is divisible by 3, and having the FCT stand alone as a separate territorial requirement.
section 299
There is one final issue to consider. Section 299 of the 1999 Constitution as amended, provides as follows:
“The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation”
This text is amenable to both a broad reading and a narrow reading, which could change the result.
broad meaning
Under the broad meaning, the FCT is treated as if it were a State in all respects. Wherever in the Constitution you read the word “state,” you should also understand that phrase to include the FCT.
Accordingly, where Section 134 states that the 25% criterion applies to “two thirds of all the states,” the FCT is included. But if the FCT is automatically included by means of Section 299, why go on to list it separately in an additional clause?
Other sections of the Constitution that list a rule for the States but also explicitly mention the FCT typically do so because they are drawing a distinction between how the rule applies in those two kinds of territories. For example, Section 48 states:
“The Senate shall consist of three Senators from each State and one from the Federal Capital Territory, Abuja.”
The effect of listing the FCT separately is to highlight an instance where it is to be treated differently from a state i.e. where we are departing from the rule of Section 299.
There are also further uncertainties created by the idea that every instance of the word “State” should be interpreted to include the FCT. Consider Section 13(4):
4) The composition of the Government of a State [understood here to include the FCT], a local government council, or any of the agencies of such Government or council, and the conduct of the affairs of the Government or council or such agencies shall be carried out in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the peoples of the Federation.
If the broad interpretation is correct, and the FCT is to be treated like a state in every respect, then the FCT’s Government should “recognize the diversity of the people within its area of authority.” This would imply that, by failing to nominate Gbagyi indigenes to the composition of its Government, the Federal Government has been openly violating this constitutional provision for decades.
the Federal Government has been openly violating this constitutional provision for decades.
narrow meaning
How about the narrow reading? Here, again is Section 299, but in full:
“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 – (a) 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”
The narrow reading is that the FCT is to be treated like a state in some specific circumstances. Those circumstances are determined by the phrase following the word “accordingly.” The phrase explains when, and in what sense, the FCT is to be treated like a state.
Under this interpretation, the effect of Section 299 is to clarify that whenever there is a controversy about the legislative power, executive power, or judicial power regarding the FCT, we recall that
(i) the National Assembly has the same powers with respect to FCT-Abuja that a State House of Assembly has with respect to a State,
(ii) the President has the same powers with respect to FCT-Abuja that a State Governor has with respect to his State, and
(iii) the High Court for the FCT has the same powers as a State High Court.
A RIDDLE WRAPPED IN A MYSTERY
Outside of these specifically listed circumstances, the FCT does not operate like a state.
Note that Section 299 does not refer to elections in its text. The section 299 question is the most difficult issue in the case because the Supreme Court has not had the occasion to offer clear guidance.
The Supreme Court last interpreted Section 299 in a case called Bakare v. Ogundipe, decided in 2020. But this case was a dispute over the proper jurisdiction of the High Court for the FCT, so it fit squarely into the narrow interpretation of Section 299.
Sensibly, the Court decided that the High Court for the FCT had similar jurisdictional rules to the High Court of a State. What the Bakare judgement does not clarify is if, for election purposes that are not textually specified in 299, the FCT is to function as a state.
Thus, no matter the result, this case will change how the FCT is viewed.
Thus, no matter the result, this case will change how the FCT is viewed.
On one hand, it could be fully incorporated as a state in all respects under the broad meaning; this may end up providing some relief to the Gbagyi people if they can press Section 13(4) claims up to the Supreme Court and win some rights to representation.
It would also leave the election still in dispute, on the basis of other claims raised in the petitions.
On the other hand, it could clarify that the FCT has a special hybrid status, acting like a state in some respects but not in others.
This would crown the FCT as a kingmaker and give the Nigerian people another chance to pick their President.
“… it could clarify that the FCT has a special hybrid status, acting like a state in some respects but not in others. This would crown the FCT as a kingmaker and give the Nigerian people another chance to pick their President. ”
Ameze Belo-Osagie Tweet
Ameze Belo-Osagie, is pursuing a PhD in political science at Stanford University School of Humanities and Sciences. She earned a bachelor’s degree cum laude in political science and African studies from Yale University, and a JD from Harvard Law School. She tweets at @mezbeloo.
Part two of the series looking at vice president elect, Kashim Shettima’s alleged double nomination is available here.