By Emmanuel Menseh Madaki, Esq.

The Supreme Court of Nigeria in DAPIALONG V. DARIYE (2007) 8 NWLR (PT 1036) 332 reechoed the cardinal point that the constitution of Nigeria is the birth certificate of any Nation. It is the organic law, the fons et origo and the grundnorm upon which every legitimacy of this country revolves. The 2023 presidential election held on the 25^th day of February 2023 is the most fundamentally flawed, corrupt, indecent and careless selection process which INEC chairman unilaterally and intentionally foisted a candidate and or president on the Nigerian people despite the fact he did not secure the constitutionally required 25% in the Federal Capital Territory and this alone is enough ground to not declare Senator Asiwaju Bola Ahmed Tinubu. Prof Mahmood insisted on declaring the APC candidate though unjustifiably, baseless and

As a matter of emphasis, the results of the presidential election as collated and declared by INEC on the 1st day of March, 2023 tough manually against the e-transmission mode as provided by the electoral act and the guidelines for the conduct of elections, showed that Tinubu, the candidate of the APC, was purportedly said to have garnered the highest number of votes cast at the presidential election. The APC candidate is said to have garnered a total of 8,794,72, whereas Alhaji Atiku Abubakar of the Peoples Democratic Party (PDP), secured a total of 6,984,520; with Mr. Peter Obi of the Labour Party (LP), scoring 6,101,533 votes. In the Federal Capital Territory, Abuja for instance, where the total valid votes amounted to 478,923, Tinubu, the candidate of the APC, was said to have secured only 90,902 (19.76%) of the votes cast at the FCT; with Atiku alleged to have 74,194 (16.13%); and Peter Obi said to have 281,717 (61.23%).

The most apt constitutional question which we must task our intellect is whether the candidate of the APC, Ahmed Bola Tinubu who was declared the winner of the election met the mandatory constitution requirement? The Answer is in the negative and these are my justifications based on the constitutional provisions.

THE CONSTITUTION AND 25% QUESTION

Section 134(2) of the 1999 Constitution unambiguously states 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.”

The law provides for two arms of requirements that are conjunctive and not disjunctive; that is, (a) the candidate must have the majority of votes cast at the election; and (b) he must have not less than one-quarter of the votes cast at the election in each of at least two-thirds of all States of the Federation AND the Federal Capital Territory, Abuja.

Be informed that while sub section (3) provides that where the candidates still fail to satisfy the requirements, there shall be a second election in accordance with sub section (4); and the candidates shall be the highest vote scorer, followed by the next highest vote scorer; and these elections shall be held within 7 days of the results of the forgoing elections subject to fulfilment of the above usual conditions. Accordingly, by sub section (5), where a candidate is not still elected, then within another 7 days, the National Electoral Commission (INEC) shall conduct another election; and this time, if a candidate simply has a majority of the votes cast, he shall be declared winner. In other words, this time around, the second limb of satisfying the 2/3 of States of the Federation and FCT, no longer arises.

Beyond any obfuscation and mathematical rascality, 2/3 of 36 States is equal to 24 States, in addition to the FCT, Abuja. Therefore, it becomes imperative for the candidate for presidential election to secure the 25% votes in each of the 24 states and the FCT. The law is well settled that where a provision of a statute is clear and unambiguous, only its natural meaning, and not any other, is to be given to its interpretation. See A GENERAL COTTON MILL LTD v. TRAVELLERPALACE HOTEL (2018) LPELR-46311(SC)

In the 1979 presidential election when the issue of ¼ of the votes in each of the 2/3 came up for interpretation in AWOLOWO V. SHAGARI & 2 ORS (1979) FNLR Vol. 2 Fatayi-Williams, CJN, held that Section 34(1)(c)(ii) of the Decree was a clumsily worded section which was nevertheless devoid of any semantic ambiguity and the apex court reiterated the point that the requirement for the 25% of the votes was a mandatory requirement. Though, FCT was not created at that time but with the creation of the FCT, the 1999 constitution included a conjunction “AND” FCT as forming part of the constitutional requirements which must be met to be declared a winner aside scoring the highest number of votes cast at the election. with due respect Tinubu, the candidate of the APC, was said to have secured only 90,902 (19.76%) of the votes cast at the FCT and his declaration as the winner of the election was but a lame understanding of the law. Indeed, the INEC chairman goofed in this regard.

It is sheer legal knavery to assume that the requirement of ¼ votes is not applicable to the FCT. I find this rather deficient and suboptimal reasoning defective in substantive and misleading in law simply because the position of the law is already settled by the apex. FCT in the constitution enjoys a special and rather preferential status and cannot simply be lumped and or assimilated into various status as the organizational structure is radically distinct from states and doing so would bring the total number of states to 37 which brutally conflicts with section 3(1) & (4) CFRN that suggests that there shall be 36 states of the Federation whereas section 2 (2) states categorically that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”

For the avoidance of doubt, since the return of democratic rule in 1999, all past presidents all secured 25% votes in the FCT in fulfilment of the constitutional requirement as contemplated under section 134 (a) and (b) of the law. It is a condition sinequanon which cannot be jettisoned. For the records, in 1999 Obasanjo got 59% in FCT Abuja. In 2003 he secured 49.9%. In 2007, Maurice Iwu deliberately ignored to publishing the scores States by States including Abuja but allocated 69.6% to Umaru Musa Yar’Adua. In 2011, Jonathan secured 64.89% in FCT, Abuja. In 2015 Buhari secured 51.77% in FCT, Abuja and in 2019 Buhari got 36.92% to be declared the President of Nigeria. But in 2023, the INEC chairman shocked Nigerians by insisting on declaring Tinubu despite the non fulfilment of the requirement of the constitution. That was a fundamentally dubious and reckless decision by the INEC chairman.

INEC chairman acted in flagrant disobedience to the express dictates of the law and in that wise he must be called upon to tender and unreserved apologia to the Nigerian people for abusing his office that is being funded by taxpayers’ money. His obstinate stance without consultations before venturing into wild goose chase has some fatal consequences which must not be allowed to stand,

In conclusion, may I posit that you cannot put something on noting and expect it to stand, it will surely fall. The declaration of Sen. Ahmed Bola Tinubu was fraudulent, fundamentally flawed, unsupported by any sound legal and constitutional reasoning, perverse and lame in substance. It was a declaration made in absolute defiance to the express non-negotiable dictates of the law. Our constitution is supreme and shall remain so to the extent of its inconsistency and any declaration that is fundamentally ladened with incongruities must not be allowed to stand. The declaration of Tinubu ought to be set aside and let the needful be done.

Emmanuel Menseh Madaki, Esq. (LLM)

Constitutional lawyer