Which Parts Of The ‘Elephant’ Have You Seen From The Legal Perspective? Only The Supreme Court Can See and Explain The Whole Parts Of The ‘Elephant’ Conclusively
—Vincent Adedara, PhD in Laws, Solicitor in Nigeria, England and Wales
The ensuing confusion among the jurists on the pattern of law definition gave impetus to the penetration of the non-lawyers to deride the subject of law. There are many opinions on the definition of law. According to an erudite scholar, there are as many definitions of law as there are men who care to define law; as the maxim goes: Quot Lomines tot sententiae. Nobody, including the lawyers, has offered, nobody, including the lawyer is offering, nobody, including the lawyer, will ever be able to offer a definition of law to end all definitions. This is not advocating pessimism; it is because the nature of law makes it very pliable when it comes to the problem of definitions. Law is Like the six blind men of Hindustani when they went to “see” the ‘elephant’, seeing only the foot of the ‘elephant’ may limit one to description of the ‘elephant’ based on the foot, seeing the head will limit description of elephant based on the head, only court can describe and explain the entire parts of the ‘elephant’ including the head and the foot vividly, lawyers can only explain in part, every definition maybe able to say something about some aspects of law but not one of the definitions is able to say everything about law. The essence of law is to secure greater happiness for the individual citizens and Lord Denning is of opinion that, ‘it is no use having just laws if they are administered unfairly by bad judges or corrupt lawyers. A country can put up with laws that are harsh or unjust so long as they are administered by just judges who can mitigate their harshness or alleviate their unfairness’. We therefore rely on our courts for proper interpretations and our courts must not be blackmailed in the process of seeking justice by all.
If ten lawyers are to give legal opinions on any aspects of law, we may have ten different and sound opinions and the person seeking opinion may even be confused as to which one to accept. Chief Mike Ozekhome SAN and Dr Olisa Agbakoba SAN are foremost constitutional lawyers in Nigeria and their weighty opinions on S 134 CFRN almost swallowed other lawyers’ opinions. With great respect to the opinions of these legal titans, the beauty of it all is that their opinions may not be right and correct in law. Only Supreme Court’s decision can prove any of the opinions right, in my opinion therefore, we don’t need 25% votes in FCT, Abuja to win National Election. Abuja is a State for the purposes of the CFRN, we need 25% spread in two third of the “States and FCT”, meaning the constituent units of the Federation.
IS 25 PERCENT OF FCT, ABUJA VOTES MANDATORY IN PRESIDENTIAL ELECTION?:
Section 134 (2) (b) stated that President of a country must have won one quarter of election in at least two-thirds of all the states in the federation and the FCT, Abuja before he can be deemed elected, Abuja is one of the federation units and isolating Abuja for special treatment would mean that you need more than 25% and in more than the Federation units to win, which is not the intendment of the CFRN. Section 299 and Section 301 gave Abuja state roles likened to the states of the federation(as if), it will be correct for the purpose of Section 134 (2)(b) that the federation units are 36 plus 1(as if) states, it is not erroneous to liken Nigeria to 37 states and the word ‘’AND’’ only conjoined Abuja with other 36 states, it will confuse ordinary citizens to just put 37 states of the federation and in the wisdom of the drafters, they inserted ‘’all states in the Federation AND the Federal Capital Territory, Abuja .The statement that ‘’36 people in my office AND Okoro should see me’’ is not semantically the same as ‘’2/3 of 36 people in my office AND Okoro should see me’’. The earlier required all the 37 people to see me, the latter required the 2/3 of the 37 people to see me which may exclude Okoro (Okoro was only mentioned because he wasn’t in my office). ‘two third of Eleven Subjects and English’ are part of requirements for admission may not be the same meaning as ‘Eleven subjects and English’, the former means any eight subjects and the later means twelve subjects. The two cannot be mingled together by interpretation of ‘and’. The express mention of two third of 36 states, plus one state is an exclusion of one third states (twelve) plus one and the exclusion will apply to the subsequent statement with the conjunctive word ‘and’.It is therefore conspicuously clear that by virtue of Section 299 of the Constitution of the Federation, the Federal Capital Territory is in law a ‘like’ State and as such, 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 an agency of “a State” independent of the Federal Government. The nexus 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 to make law for the ‘state’ of the Federal Capital Territory. The Court of Appeal (Per RAPHAEL OLUFEMI ROWLAND, JCA, pp 7 – 13 Paras A – A) said in KOYODE v. FCDA (2005) LPELR-41123(CA): “…. Section 299 provides thus – “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; (b) all the powers referred to in Paragraph (a) of this Section shall be exercised in accordance with the provisions of this Constitution, and (c) the provisions of this Constitution pertaining to the matter aforesaid shall be read with such modification and adoptions as may be reasonably necessary to bring them into conformity with the provisions of this Section.” Section 299(a) explicitly adduced that 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.
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Section 126(2) of the 1979 Constitution stated ‘two third of all the states in the Federation’, but the 1999 Constitution included “And the FCT, Abuja” because of the status given to FCT, Abuja by Sections 299 and 301 which were not in existence in 1979, otherwise, it would still be ‘2/3 of all the states in the Federation’. The “And the FCT, Abuja” was as a result of the special status of additional ‘state’ in the federation. It will therefore be against ‘Travaux preparatoires’ of the CFRN 1999 which drew its large strength from the 1979 constitution before it was promulgated by the military decree on May 5, 1999 and came into force on May 29,1999 to arrogate fulfillment of special condition through FCT ,Abuja before a candidate can win a national election.
The word ‘’AND’ may be ‘plus’, ‘including’ and ‘together with’. Segregating ‘FCT Abuja’ because of ‘AND’ is rendering “And” as disjunctive rather than conjunctive, it will negate sections 299 and 301 of the CFRN to do so as we take time to read Okoyede v. FCDA (supra) and BAKARE v. OGUNDIPE (2021) 5NWLR (pt. 1768) SC. 1 on the status of Abuja. The copious question is why do you think the Constitution made the 25% provision – if not for spread and acceptability of the incumbent? If we think it is the intention of the drafter or framer of the CFRN to isolate Abuja for special treatment, why would a majority of the States have to subjugate their acceptance of the Candidate to the 9000km/2 that’s Abuja?. It will violate rules of logic and even James Madison, ‘the father of constitution’ will go contrary. It is therefore correct to say, two-third of all the states in the Federation including/plus/ together with (emphasis is mine) FCT Abuja
The word ‘AND’ is therefore conjunctive and it will be abstract disconnecting ‘AND’ from its conjunctive nature to make it a disjunctive word to suit an interpretation.
The issue of 25 percent of states and FCT is not new and has since been settled for eternity as the Supreme Court said , vide Buhari v. Obasanjo (2005) 13 NWLR (Pt.941), two thirds is 24 states whether this includes Abuja or not, it is res judicata. Abuja does not enjoy special status far above other states in interpretation of Section 134 CFRN. The re-escalating of the matter already settled is mere academic exercise.
25 Percent of FCT Abuja is not mandatory and it is not a prerequisite for a candidate who had won majority votes in a Presidential election.
BVAS AND IREV
BVAS and IREV has come to stay in the conduct of election in Nigeria and this is no more controversy as the Court of Appeal confirmed that the BVAS has a dual use in its 24 March 2023 judgment in the case of NURUDEEN v. OYETOLA (Appeal No: CA/AK/EPT/GOV/01/2023), the dual use of BVAS as confirmed by the court under Electoral Act, 2022 are 1.It can be used mandatorily for voter accreditation and verification of PVC, and 2. It can be used to scan the Form EC8A and transfer or transmit the scanned copy to the IReV as the court further observed that “BVAS is a device used to register voters. It accredits voters before voting on Election Day and is used for transmitting results to INEC viewing portal after voting. Thus it helps to scan the barcode or QR on the PVC or voters register before voting. Note that BVAS does not require internet connectivity during voting but it requires internet when transmitting results to the INEC portal”(vide page 35 of the judgment).The version of the results from the IReV as transmitted or transferred by the BVAS was not helpful just because the results were not transferred to IReV without delay,The reason why COA will not rely on the BVAS absolutely on Osun State Election was solely because it was not transmitted from the BVAS to IReV was not done on the day of election as prescribed by the Electoral Act 2022. Any result transmitted on election date will be accepted as reliable and proof to resolve election disputes. Candidates can use result in BVAS under Sections 136(1), 135 and 137 of the Electoral Act, 2022 to discredit the entire result of election in court. The Electoral Act foresees circumstance where election results in BVAS may not be transmitted to IRev on election day due to unforeseen circumstances, then Section 60 (5) of the Electoral Act empowers INEC to use discretion to determine the modus operandi of collation and INEC may rely on its own additional regulations and example is ‘Regulations and Guidelines for Conduct of Elections 2022’
Per Shuaibu, JCA in the lead judgment delivered on 24 March 2023, on pages 35-36 of the judgement, on uses of the BVAS and the material time for e-transmission of election results under the Electoral Act 2022) held that “BVAS is a device used to register voters. It accredits voters before voting on Election Day and is used for transmitting results to INEC viewing portal after voting. Thus it helps to scan the barcode or QR on the PVC or voters register before voting. Note that BVAS does not require internet connectivity during voting but it requires internet when transmitting results to the INEC portal. In the light of the foregoing, it is correct to say that there are dual modes of transmission of results under the extant Electoral Act, 2022. After close of poll at level of various units where the presiding officer would enter the scores of various political parties in Form EC8A (Polling Unit Result) in which he sign that particular result and counter signed by party agents, the result will then be scanned and uploaded to the INEC result viewing portal for public viewing. It’s also at that point the accreditation data that has arisen from that polling unit will also be uploaded, but the physical result, the BVAS result will also be taken to the Registration Area Collation Centre. At the Collation Centre, the Collation Officer will at this point have the benefit of seeing the original result and BVAS report and the accreditation data as transmitted and the result sheet from the polling unit”
Physical result is not useless where BVAS is not reliable, in a situation where BVAS has not captured result of the polling unit, the collation officer may resort to the physical results in alternative and this will not be invalidated as to be supported by Regulations and Guidelines for Conduct of Elections 2022. It is within the discretion of INEC to decide to collate election with physical results where BVAS upload is not feasible.
From the length and breadth of the world, I have not seen a country with perfect democratic election from the beginning to the end, even America had problem with their electoral process in the last Presidential election, we must be courageous to identify problems in our electoral system and proffer immediate solutions without waiting for the next four years, election ought to have been held eight months to one year before inauguration to give enough room for people to ventilate their grievances through courts, we should therefore stop heating up the polity since there cannot be progress, stability, security, prosperity without peace, let the will of the majority of the electorates matter as we await court affirmation and judgment soon.