Here’s what lawyers are saying about Section 134 as Peter Obi’s big win in FCT divides citizens

As results from the 2023 presidential election continue to trickle in, Section 134 of the 1999 constitution is sparking a hot debate on the internet as citizens seek clarity on the position of the law.

The debate came to the fore after results from the FCT were announced on Tuesday, February 28, 2023, where Peter Obi of the Labour Party swept the votes. He polled 281,717 votes to beat the PDP and APC who could not secure 25% of votes.

The ruling party’s candidate is presently leading from results officially released so far by INEC and citizens are now debating whether the failure of the APC to secure 25% in FCT will stop the party’s announcement as winner of the election of there would be a rerun.

What does the law say?

According to Section 134 of the constitution, where there are more than two presidential candidates, for a presidential candidate to be declared duly elected, he must secure the highest number of votes cast at the election; and not less than a 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.

1) A candidate for an election to the office of President shall be deemed to have be been duly elected, where, there being only two candidates for the election –

(a) he has the majority 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.

(2) 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 each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.

The section went further to state that when the candidates didn’t meet the requirement, there would be a rerun between the two candidates with the highest votes and the winner will be decided by a simple majority.

Citizens Divided

Many citizens are divided over this provision of this section of the constitution.

An interview by Mike Igini, a former Resident Electoral Commissioner of INEC, is further fueling the debate.

Igini in an interview on Arise TV on Friday, February 24, 2023, said: “far more important is provision of Section 134, subsection 2B of the constitution which says is to the fact that no presidential candidate can be declared a winner in this election without having 25 percent in the federal capital territory that is very important for the whole world to know that tomorrow’s election wherever they need to be finally declared apart from having to imprison in 24 States or the federal republic of Nigeria the federal capital territory is like a compulsory question you can answer all that you go nowhere.”

Lawyers provide insight

An Abuja-based lawyer who would not like to be mentioned told Neusroom that the section is quite complicated and only the Supreme Court can offer a better interpretation.

“Basically, there are different interpretations to this particular section of the constitution – 134(2)(b),” he said. “There is an operative clause that would mean different things to multiple people until the Supreme Court interprets it and the operative word is ‘and’ the FCT.”

He further said the ‘operative word’ could mean the FCT as a standalone or it could mean with the FCT.

Lawyers also pointed citizens to Section 299 of the Constitution which provides that the provisions of the constitution shall be read as if the FCT were a State of the Federation.

Festus Ogun, a legal practitioner, also shed more light.

In a series of tweets on the debate, he wrote on Twitter:

“I honestly feel that insisting on 25% votes cast in the FCT when you’ve got more than 25% in over 2/3 of other states will defeat the overall intention of the drafters of the Constitution and will certainly lead to absurdity.”

Ogun, however, said scoring 25% of the votes in FCT “in my respectful view may not be a compulsory requirement to deem a candidate as duly elected in light of the fact that FCT is considered a “state” and the 25% requirement is met in 2/3 the rest of the “states” of the Federation.”