Lawyers have expressed divergent views about the constitutional requirements needed to be declared winner of a Presidential election in Nigeria.
The Electoral Act (2022) states that the winner of the presidential election will be subjected to the provisions of section 134 of the Nigerian Constitution.
“In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result 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 Electoral Act reads in part.
According to the 1999 Constitution, presidential candidates must not only win a single majority, whoever will be recognised as an elected president must have won a stipulated minimum in every region of the country.
The candidate that receives the highest number of votes shall be declared elected only if they also fulfil a quota of 25 percent of the total votes cast in about 24 states including the Federal Capital Territory.
Legal luminary, Femi Falana, however says a presidential candidate does not need to win the Federal Capital Territory (FCT) to be declared winner of the February 25, 2023 poll.
“It is not a requirement that you must win the FCT,” the Senior Advocate of Nigeria said on Channels Television’s Sunrise Daily programme on Tuesday.
“Today, the courts have ruled that pursuant to Section 299 of the constitution, that the FCT should be treated as a state. That is the law.
“You don’t have to win the FCT; if you meet the requirement; that is two-thirds of the majority of states in the country. You don’t have to win the FCT,” the human rights activist stressed.
Ridwan Oke, the legal services director of Connect Hub Nigeria, explains what section 134 really means.
“We have 36 states of the federation and two-thirds of that is about 25. So, if you are a presidential candidate, you must have 25 percent of the total votes cast in at least 25 states of the federation before you are declared [winner]. If nobody has that, if the candidate with the highest number of votes still fails to have the required 25 percent, there will be a rerun election,” he said.
“When it goes to the rerun, it will only be the majority [votes required]. So, if you are polling 10 million votes, you must have at least 25 percent of the total votes in 25 states in that majority vote. The candidate does not have to win all those 25 states. They only need to meet the minimum 25 percent in the states.”
Two-thirds of the 36 states in Nigeria is 24. This means that if no presidential candidate can manage to achieve the required 25 percent minimum in 24 states, INEC will have to arrange for another election within seven days.
However, Barrister Paul Omoluabi, another lawyer, said FCT is inclusive in the 25 percent required by law.
According to him, the winner of the election must have 25 percent in at least 24 states of the federation.
He told Quest Times that FCT is inclusive, according to the law.
WHAT HAPPENS WHEN THE PRESIDENTIAL ELECTION IS UNDECIDED?
The Nigerian Constitution dictates what happens when the presidential election is inconclusive due to candidates failing to fulfil the basic electing requirements.
Subsections 3/4/5 of Section 134 state:
“In a default of a candidate duly elected in accordance with subsection (2) of this section, there shall be a second election in accordance with subsection (4) of this section.”