Remembering the 12 two-thirds conundrum that sealed Shehu Shagari’s victory as president in 1979
On the morning of September 26, 1979, the attention of most Nigerians was on the Supreme Court as they waited anxiously for its verdict on the post-election litigation between Alhaji Shehu Shagari of the National Party of Nigeria (NPN) and Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN).
The famous Ibadan lawyer, Richard Akinjide, who was Shagari’s counsel argued before the Supreme Court justices and convinced them that the two-thirds of 19 states (the total number of states in Nigeria at that time) was ”12 two-thirds”, and not 13. The Supreme Court upheld his argument and ruled in favour of Shagari.
The controversial judgement which has gone down in history as, arguably, the most significant court verdict of that era ruffled feathers, left many Nigerians bewildered and also made many Nigerians emergency mathematicians as they struggled to make meaning out of the argument on which the judgement was based.
The world over, democracy has never been without its own peculiar challenges and Nigeria with its transition to civilian rule first in 1979 and for the second time in 1999 has had its fair share of political drama. From intra- to inter-party crisis leading to litigations and counter litigations, democracy has proven to be an eventful system of government all over the world.
One of such dramas is the legal battle that trailed the 1979 Presidential election. Following the decision of the Military government of ex-president Olusegun Obasanjo to return power to democracy, the Presidential election was held on August 11, 1979.
Shagari of the NPN was declared winner on August 16 defeating four other candidates: Chief Obafemi Awolowo – UPN; Dr Nnamdi Azikiwe – NPP; Alhaji Aminu Kano – PRP; Alhaji Ibrahim Waziri – GNPP.
The electoral commission declared him winner on the ground that the 5,688,657 votes cast in his favour satisfied the provisions of Section 34 A (1)(c)(i) and (ii) of the Electoral Decree 1977 (No. 73) as amended.
The provisions of Section 34A(1)(c)(i) and (ii) provided that a Presidential candidate will be deemed to have been duly elected to such office where he has the highest votes cast at the election; and 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.
His closest rival, Awolowo who polled 4,916,651 votes, challenged the declaration of Shagari as winner. He argued that Shagari failed to score at least a quarter of the votes cast in 13 states which was mathematically the two-thirds of the 19 states. Shagari got 19.94 percent of the votes cast only in Kano.
British historian, John Iliffe wrote in his book ‘Obasanjo, Nigeria and the World’: “The presidential election result created a dilemma because the winning candidate was required to have the highest number of votes and to have won at least 25% of votes in at least two-thirds of the 19 states, otherwise the election passed on to an electoral college of federal and state legislators.”
In an election petition presented to the Presidential Election Tribunal in Lagos, Awolowo contended that Shagari’s election was invalid by reason of non-compliance with the provisions of Part II of the Electoral Decree, 1977 which include the provisions of Section 34A(1)(c)(ii) of the said Decree because although Shagari received the highest total votes at the said election, he had 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.
Awolowo prayed the Tribunal to determine that Shagari was not duly elected or returned and that his election or return was void; and also that the Chief Electoral Officer of the Federation, Alhaji Ahmadu Kurfi, and Presidential Election Returning Officer, F.L.O Menkiti, be ordered to arrange for an election to be held in accordance with Section 34A(3) of the Electoral (Amendment) Decree (Decree 32 of 1979).
In his evidence before the Tribunal, Awolowo called only one witness – Professor Ayodele Awojobi – a Professor of Engineering at the University of Lagos and an applied mathematician who designed a bi-directional vehicle.
Awojobi testified that there were 38,760 possible two-thirds of Kano State going by Local Government Area and that in the absence of a computer, it will take at least one year to declare the result with respect to two-thirds of Kano State. Exhibits T1, T2 and T3 respectively were tendered showing the Declaration of the result, analysis of votes cast State by State for each candidate and analysis of votes cast in Kano State at the election. The tribunal dismissed Awolowo’s case and upheld Shagari’s election.
With the dismissal of Awolowo’s petitions at the tribunal, the legal battle moved to the Supreme Court where the declared results agreed, Shehu Shagari got 25% of the votes cast in twelve (12) states; namely: Bauchi, Bendel, Borno, Cross River, Gongola, Kaduna, Kwara, Niger, Plateau, Rivers and Sokoto. The 13th state was the issue. It was Kano state – where Shagari scored 243,423 votes, equivalent to 19.4% of the 1,220,763 votes cast in total.
“Awolowo declared that the situation required a run-off election between himself and Shagari, but the NPN advocates disagreed. They argued that two-thirds of 19 was not 13 but 12 and two-thirds. This meant that in order to win the election, Shagari would have to win only 25 percent of two-thirds of the total vote in Kano State,” Toyin Falola and Matthew Heaton wrote in ‘A History of Nigeria’.
Awolowo argued that the phrase “…in each of at least two thirds of all the states within the federation.” means thirteen (13) states because there is nothing either in the Electoral Decree of 1977 or the Electoral (Amendment) Decree of 1978 authorizing fractionalization of a state for the purpose of determining two thirds of its votes.
Richard Akinjide then argued that “in order to get one-quarter of the total votes cast in the thirteenth state, the reckoning must not be the total votes but two-thirds of the total votes,”
He went further “meaning that once a candidate satisfied the requirement of obtaining one-quarter of the total votes cast in twelve states and in two-thirds of the thirteenth state, then he should be accepted as having satisfied the requirement of scoring at least one-quarter of the total votes cast in each of at least two-thirds of the nineteen states of the federation.”
Chief Justice Fatai Williams read the lead judgment of the Supreme Court which was based on six votes to one. He admitted on court records, that the Electoral Law as phrased is a “clumsily worded section”, but then oddly said “this clumsily worded section” is (nevertheless) “devoid of any semantic ambiguity”.
Mindful of the lapses in the verdict, the supreme court added a caveat that the verdict must never be cited as a precedent in future cases. That judgement later earned Akinjide ‘the mathematician’ title.
In a 2011 interview, Akinjide later spoke of what transpired in 1979 during the legal tussle between Shagari, his client, and Awolowo, dismissing the court’s caveat that the judgment is to never be used as a reference point.
Akinjide said:
“My defence against Chief Awolowo’s petition was predicated on three critical points. One, that there was total compliance in accordance with the electoral law. In the alternative, there was substantial compliance. Thirdly, in any event, the electoral petition and the reliefs sought were flawed and Justice Otutu Obaseki highlighted that very thoroughly.
“Professor Reid, of the University of London wrote me and also told me that what I did has made a notable contribution to constitutional law all over the world.”
After the controversial judgement, “the Supreme Military Council then amended the future constitution to specify 13 states as the minimum and to replace the electoral college, which was generally expected to be spectacularly corrupt, by a run-off election if the first vote was inconclusive,” John Iliffe wrote.
Forty-three years after the 12 ‘two-thirds’ conundrum, Nigeria has witnessed more controversial election judgements that have left many in shock. Some of those cases are the Supreme Court judgement which declared Hope Uzodinma as governor of Imo state despite coming third in the election and the nullification of David Lyon’s victory as winner of Bayelsa governorship election in 2019 over discrepancies in the certificate presented by his deputy. Just as Akinjide became known as ‘the mathematician’, Uzodinma has also been nicknamed ‘Supreme Court Governor’ by the people of Imo state.
- This story was first published on Neusroom on November 2, 2020.
