Olisa Agbakoba, a senior advocate of Nigeria (SAN), has written to Mahmoud Yakubu, chairman of, Independent National Electoral Commission (INEC), on the “correct” interpretation of electoral laws.
In an open letter, a copy of which was sent to BusinessDay, Agbakoba said he worried that there could be multiple interpretations of section 134 of the 1999 Constitution, which prescribed the requirements to be met by a presidential candidate to become the president of Nigeria.
He requested the ‘correct’ interpretation of certain sections of the 1999 constitution (as amended) that determine who wins a presidential election.
According to him, the Electoral Act, 2022 states that “…the result (in an election to the office of the President or Governor) shall be ascertained by counting the votes cast for each candidate and subjected to the provisions of sections 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.”
Section 134 stated that in case of an election with only two candidates, Section 134 (1) of the 1999 Constitution states that a presidential candidate shall be deemed to have been duly elected where he has “the majority” of votes cast at the election, and has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States and the Federal Capital Territory, Abuja.
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But in a case where there are more than two presidential candidates, Section 134 (2) states that a candidate shall be deemed to have been duly elected where he has the “highest number” of votes cast at the election and 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.
In addressing some of the questions arising from the variegated interpretations, Agbakoba said, first,
the Constitution describes the winner in two different languages. “One, the winner must score the majority of votes [in section 134 (1)] and the other, the winner must score the highest number of votes [in section 134 (2)]. This is confusing,” he wrote in the letter addressed to the INEC Chairman.
According to him, the section of the law wasn’t explicit enough as to whether the two-thirds votes a candidate must secure as mentioned in the law would include or exclude the Federal Capital Territory (FCT), Abuja.
He asked if, to be declared winner of the presidential election, a candidate must win a quarter of votes in 24 states – which makes up the two-thirds– as well as the FCT, or without the FCT.
According to him, “…does this mean that the Federal Capital Territory, Abuja is incorporated in the 24 states? Or…does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?
“Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 States of the Federation but fails to score one-quarter of the votes cast at the election at the Federal Capital Territory, be duly elected as President of Nigeria?”
