The Electoral Status of the Federal Capital Territory under the Constitution

Chinenye Winifred Martins

chinoblewinny@gmail.com : 07067097174

INTRODUCTION

A few weeks to the Presidential Election scheduled for 25/2/2023 across Nigeria, a former president of the Nigeria Bar Association Olisa Agbokoba SAN, came up with some prying questions in regards to the true position of the Federal Capital Territory (FCT) in determining the true winner of any presidential election in Nigeria. He went as far as advising the Independent Electoral Commission (INEC) to approach the Courts to seek an interpretation of the necessary provision. 

The above proposition met some level of resistance when Femi Falana SAN took the opposite view, contending that it is not necessary for a presidential candidate to mandatorily win 25% of votes cast in the FCT to be declared the winner of the presidential election in Nigeria.

Opinions on this simple issue has been varied and we just take a further peep into the issue here.

Section 134(2) (a) and (b) of the Constitution provides expressly as follows:

“(2) A candidate for an election to the office of the president shall be deemed to have been duly elected where, there being more than two candidates for the election:

1. He has the highest number of votes cast at the election: and 
2. He has not less than one-quarter of the votes cast at the election in each of at least two thirds of all states in the Federation and the Federal Capital Territory, Abuja.”

Similar provision was contained in the Electoral Decree of 1977 and was subject of protracted litigation in the case of AWOLOWO V. SHAGARI (1979) 6-9 SC 51.

That case was fought under the Electoral Decree of 1977, which provided in section 34 A (i), (C) (ii) as follows:

“A candidate for an election to the office of the president shall be deemed to have been duly elected to such office where:

(c)There being more than two candidates

(i) He has the highest numbers of votes cast at the election.

(ii) He has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all states in the Federation. 

The difference between both provisions is that in 1977, there was no FCT, Abuja and so that question here arose for consideration in the AWOLOWO V. SHAGARI case (supra) even at the Supreme Court had a difficult task arriving at an answer then.

In 2023, more than four decades later, the ghost of that provision haunts another presidential election.

I shall do a step by step dissecting of the provision of the 1999 Constitution as amended while analyzing specific constitutionally ‘operative words’.

The operative word this article seeks to interpret and explain includes the following:

1. IN EACH
2. AND
3. AS IF IT WERE A STATE

1. IN EACH

Section 134(2) (ii) of the Constitution employs the use of the words in EACH OF AT LEAST TWO-THIRDS OF THE STATES OF THE FEDERATION AND THE FEDERAL CAPITAL TERRITORY, ABUJA.

Without much ado, the word “each” has been judicially defined by the Supreme Court of Nigeria.

In EYISI V. THE STATE (2000) 15 NELR (PT.691) 555 where Onu JSC held as follows:

“According to Webster’s New Encyclopaedic Dictionary, New revised Edition”each” means being one of two or more distinct individuals; each one. See also Black’s Law Dictionary (sixth Edition) where “each” is defined as “a distributive adjective pronoun, which denotes or refers to every one of the persons or things mentioned; every one or two or more persons or things, composing the whole, separately considered.”

In SHARFAL V. STATE (1992) 7 NWLR (PT. 255) 510, the Supreme Court held per Nnaemeka Agu JSC:

“In ordinary parlance, the word “each” means “one or more of two or more considered or treated distinctly from the rest” See Websters New Twentieth Century Dictionary Unabridged (2nd Edn.) at p.568.”

2. AND

The word ‘AND’ has also been judicially defined by the Supreme Court.

In BUHARI V. INEC (2008) 19 NWLR (PT.1120) 246, the Supreme Court held per Tobi JSC:

“The final word I should examine briefly is the conjunction “and” joining the larger part of the Subsection with the smaller part of “that the non-compliance did not affect substantially the result of the election.” The word “and”, being a conjunction, performing the function of joining two expressions or sentences which could be inseparable, integrated, joint or matched. As a co-ordinating conjunction, some writers do not use it to begin a sentence but in a part of the sentence as it is in Section 146(1). Others do. I do not think there is any fast rule. That should not be my concern. My concern is the interpretation of the word in Section 146(1). Although the word “and” could, in appropriate cases, be interpreted as “or”, it is my view that the word as used in Section 146(1) is conjunctive and not disjunctive like, “or”. See Ndoma-Egba v. Chukwuogor (2004) 2 S.C. (Pt. I) 107; (2004) 6 NWLR (Pt. 869) 382.”

APPROACH TO CONSTITUTONAL INTERPRETATION 

Over the years, the Supreme Court has held that where there is a question whether the Constitution should be narrowly interpreted or broadly interpreted, the Courts should adopt the broad interpretation of the words employed in the Constitution. 

In A.G FEDERATION V. ABUBAKAR (2007) 10 NWLR (PT. 1042)1, the Supreme Court held Per Onnoghen JSC (later CJN) as follows:

“Mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or narrower sense, in my view, this court should whenever possible and in response to the demands of justice, lean to the broader interpretation unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.”

IN OBIH V. MBAKWE (1984) 1NWLR 132, the Supreme Courrt held per Obaseki JSC:

“The attitude of this court towards the proper interpretation of the 1979 Constitution was set in proper perspective in the case of Rabiu v. The State (1980) 8-11 SC 130 by Sir Udo Udoma at pages 148 to 149 in the following words: “The function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules or interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless, there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.”

The question is, what is broad and what is narrow in this context?

THE SPECIAL PLACE OF THE FCT UNDER THE 1999 CONSTITUTION

The Constitution is the organic law of our land from which all other laws derive their existence and validity. 

In DAPIALONG V. DARIYE (2007) 8 NWLR (PT. 1036) 332, the Supreme Court held per Onnoghen JSC (later CJN) as follows:

“It is settled law that the Constitution of any country is what is usually called the organic law or grund norm of the people. It contains all the laws from which the institutions of state derive their creation, legitimacy and very being. The Constitution is also the unifying force in the nation apportioning rights and imposing obligations on the people who are subject to its operation. It is a very important composite document, the interpretation or construction of which is subject to reorganized canons of interpretation designed or crafted to enhance and sustains the esteem in which Constitutions are held the world over.”

In ROSSEK V. ACB LTD (1993) 8 NWLR (PT. 312) 382, the Supreme Court held per Ogundare JSC:

“A Constitution, in my respectful view, is the organic law of a country and it prescribes rights, powers, duties and responsibilities. It indeed, is the fons et origo from which all other laws derive their validity, that is, in an ideal constitutional democracy. I cannot describe any part of it as adjectival or procedural law in the sense that expression is often used.”

FCT LIKE A STATE?

We have seen numerous references in recent times to certain decision of the Supreme Court which have held that the FCT is likened or akin to a state in the Federal Republic of Nigeria. One of such cases is the case of BAKARI V. OGUNDIPE (2020) LPELR-4957 (SC), the Supreme Court held per Rhodes Vivour JSC:

“It is very important to decide the status of Abuja and whether the 2nd and 3rd Respondents are Agencies of the Federal Government of Nigeria. A decision would lay to rest once and for all time proper Court to hear the Plaintiff’s claim Section 299 of the Constitution states that: 299. 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 matters aforesaid shall be read with such modifications and adaptations as may be reasonably necessary to bring them into conformity with the provisions of this Section. By virtue of the provisions of Section 299 of the Constitution, it is so clear that Abuja, the Federal Capital of Nigeria has the status of a State. It is as if it is one of the States of the Federation. An Agency is an executive or regulatory body of a state, such as state Offices, Departments, Divisions, Bureaus, Boards and Commissions. The 2nd Respondent, i.e. the Minister of the Federal Capital Territory, though a Minister of the Federal Government occupies a similar position of Governor of a State, since Abuja is classified as a State by Section 299 of the Constitution. The 2nd Respondent is thus the Chief Executive of the Federal Capital Abuja. The Federal Capital Development Authority i.e. the 3rd Respondent is established by Section 3 of the Federal Capital Territory Act. It is a Governmental Agency of the Federal Territory, Abuja. It is the actions of the 2nd and 3rd Respondents that are challenged. They are both agents of the Federal Capital Territory, Abuja, which has the status of a State. They are not agencies of the Federal Government of Nigeria.”

It would be instructive to mention that cases like BAKARI V. OGUNDIPE determined questions whether organs and agencies of the FCT are agencies of the Federal Government of Nigeria and those cases never defined or determined the electoral status of the FCT and the interpretation and application of section 134 (2) (i) and (ii) of the Constitution.

DOES THE CONSTITUTION LIST THE FCT AS A STATE?

Section 3(i) of the Constitution clearly defines and lists the states in the Federal Republic of Nigeria and it conspicuously omits the FCT as a STATE in the Federal Republic of Nigeria. See 1^ST Schedule Part 1 of the 1999 Constitution as amended.

Section 3(4) of the Constitution moving away from the states provides expressly as follows;

“4. The Federal Capital Territory, Abuja shall be defined in Part II of the 1^st Schedule to this Constitution”

Furthermore, Section 297(i) of the Constitution expressly provides that:

“(i) there shall be a Federal Capital Territory, Abuja the boundaries of which are defined in Part II of the First Schedule to this Constitution”

3. AS IF IT WERE A STATE

Section 299 of the Constitution provides:

“The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the states of the Federation”

The Constitution clearly draws a line between the states and the FCT only making the provisions apply to it mutatis mutandis as if it is a State. 

SPECIAL POSITION OF THE FCT

1. Section 299 (a) makes the FCT to have executive powers vested in the president (unlike the states, where the governors have such powers)
2. Legislative powers vested in the National Assembly (unlike states with Houses of Assembly)
3. Judicial Powers vested on its own Courts with distinct Chief Judge and Court system or structure. 
4. The FCT is the only space in the Federal Republic of Nigeria with a senator and members of the House of Representative designated for it without a localized House of Assembly. 
5. The FCT is the only space whose Administrative Head is a minister of the Federal Republic of Nigeria. 

THE FCT HAS NO ELECTED GOVERNOR

So much for the similarities between the FCT and the state. The Constitution provides for the election of the Governors of States. The Constitution in Section 177 defines the qualification to become governor of a state but no such requirement for the FCT. 

MUST YOU ATTAIN 25% OF VOTES CAST IN THE FCT?

In drawing my conclusion in this short piece, I would answer this last question in the affirmative as in “YES” because the Constitution clearly separates the States from the FCT on the issue of winning 25% of votes cast in a presidential election. 

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