A quarter of a two-thirds: Nigeria winning formula

"The word “and”, being a conjunction, performing the function of joining two expressions or sentences which could be inseparable, integrated, joint or matched." - Justice Niki Tobi in Buhari v INEC, 2008

The #Nigeriadecides2023 comes in many dimensions. I shall refrain from the politics! However, there is one dimension that resonates with the other side of me. Yep, apart from cybersecurity and multimedia, and 'pythoning', I have a postgraduate in Law, albeit labour law.

I heard analysts are analysing, vehemently so, the interpretation of the "25%" requirements across two-thirds of states (in Nigeria).

Lemme put off my many caps and, for the next few minutes, put on my 'legal' cap.

[SUMMARY} How do we interpret the conjunctive 'and' between two conditioning sentences and the conjunctive 'and' within a conditioning sentence? This is the situation of the two-third impasse of (Constituion) s134(2) arising from #Nigeriadecides2023.

An interesting aspect of law is #interpretation. Most constitutions have a provision for interpretation. In South Africa, s39(2) of the Constitution (1996 as amended) is authoritative in dictating how provisions of law are interpreted. Nigeria relies on the common law principles, called Canons of Interpretation.

Why interpretation:

Courts interpretive directive arises when there is an allegation of ambiguity in the understanding of the provision of law. This happens often in contracts. Interpretations are also sought in applying Acts and, often, the Constitution. Ironically, constitutions ought to be written in definitive plain language. Alas, contentions rage high.

Interpreting:

Interpretation must promote 'the spirit, purport and objects' of the provisions of law (constitution, acts). The courts must give credence to the construction of the provision of law (or the contract) in question. The construction is based on

• the totality of the provision of law (or Act or contract) in question
• the context of the provision of law (or Act or contract) in question
• the language of the construction (plain, nominal, functional)

Therefore the interpretive approach must not be isolating. Simply put, the wording must not be taken in isolation and/or out of context and/or out of the intent/purpose.

The approach, then is to consider:

• Textualism (plain meaning),
• Original Meaning (founding understanding),
• Structuralism (design of the Constitution),
• Historical Practices (long-established),
• Judicial Precedent (principles, rules, standards)

In K&S v Gordon, 1985 ... the dictum stood against reading section in isolation from the enactment of which it forms a part. Doing so will offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context. This carries through to Natal v Endumeni, 2012 where it affirms interpreting ordinary meaning in the context of the Regulations as a whole. Natal 2012 took judicial note of the principle of purpose, totality and context already formulated in Bato, 2004. The Supreme Court of Nigeria, in dismissing the appeal in Kassim v Adesemowo 2021, affirmed that "where the words used in a statute are clear and unambiguous, the Courts are enjoined to interpret the words in their ordinary and natural meanings." The SC further stated that Courts "should give a holistic interpretation to a statute." However, where there is a lack of clarity, real or perceived, interpretation kicks in. It then follows that the provisions (and principles) of extant rulings comes into play.

Two-third debacle:

A rare opportunity arises for Nigeria to revisit the interpretation of two-third yet again after the 'controversial' saga of 1979, albeit in a different context.

The two-third predecessor:

In Awolowo v Shagari, 1979, the Supreme Court was called upon to solve the mathematical puzzle of the new democratic dispensation, inter-alia the two-third of nineteen, where 19 is the number of States in Nigeria as at then! Is two-third 12 or 12 and 2/3 or 13 States. Solving this arises from the ingenuity of lawyers advising rival candidates and imposing their submissions on the Federal Electoral Commission (FEDECO), the Election Tribunal and the Supreme Court. Indeed!!, the 1979 Constitution (the 50-wise men Welfarist Constitution) was duly put to test.

What was in dispute:

Section 34 A (1)(c)(i) and (ii) of the Electoral Decree 1977 (No. 73 as amended) provides:

• 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.

What was held:

The justices (concurring and dissenting), although not ad idem, are clear about the principles of interpretation. Although they took different view and route, they took cognisance of salient circumstances:

• realisation that they were interpreting a particular statute passed under special circumstances - the electoral law enacted through Decree
• determination of what is two-thirds of 19 States.

Essentially, they were dealing with a matter of law dealing with the interpretation of the provisions of Section 34A(1)(c)(ii) of the Decree.

They followed an interpretive approach

They defer to logical reasoning that States cannot be fractionalised for the purposes of elections

They interrogate the original (founding) meaning of the drafter of the Decree

They consider the practical and ordinal interpretation.

The 2023 two-third debacle:

In 2023, the declared President-elect has a quarter (25%) of votes in more than two-thirds of States in the Federation (Nigeria). The candidate has 19.76% of votes in the Federal Capital Territory (FCT). The second and third candidates, particularly the third candidate, contend that the INEC Chairman erred in declaring the first candidate the winner.

The 2023 dispute:

The contention is that the INEC chairman erred with the declaration ...

... “I certify that I am the returning officer for the 2023 presidential election held on the 25th of February 2003.” “That Tinubu Bola Ahmed of the APC, having satisfied the requirements of the law is hereby declared the winner and returned elected. The Certificate of Return to the president elect and Vice president elect will take place here at 3pm today (01 March 2023).” - {insertion mine}

The 2023 two-third provision:

Unlike the 1979 debacle fixated on 'mathematics', the 2023 'ambiguity' hinges on inclusion or exclusivity, (in tandem with 'representativeness' of the FCT) and the conjunction 'and'.

Here is the provision of the Constitution. (NB: I consider s134 more appropriate to s133 in the situation instant)

Nigeria Constitution (1999) section 134.?

... ...

(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 no 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

Toward an interpretation of the two-third provision:

In the applicable section of the Constitution, there are two conjunctive "and'. The first separate sub-sections 2(a) and 2(b). The second linked FCT to States.

NB: I take notice that 'and' as conjunctive is 'resolved' in Nigeria's jurisprudence.

[Inter conditioning sentence} At the end of s134(2)(a) is a semi-colon ";" followed by a "and". Being at the end of a sentence and in between the start of the second, the first "and" connotes a distinctness of two sentences, yet peremptorily demands the second to be 'tightly coupled' with the first. In other words, the two 'distinct' sentences must be read together and satisfied independently and jointly.

{Intra conditioning sentence} In s134(2)(b), the "and" combines two phrases: States and FCT.

• Is FCT a type of State?
• Is FCT another State?
• Is FCT a special State?
• If FCT is a type of State or another State, does the "and" indicates two-thirds of 37 (36 States and #1 FCT). If so, this brings us back to 1979 (the Awolowo v Shagari saga. Two-thirds of 37 gives us 24.67, which from the authority of Awolowo v Shagari 1979 will make us consider 25 States of the '37' States.
• If FCT is a special State, would the interpretation be 2/3 of 36 States and 2/3 of FCT being a representative special State? If so, would the Justices of the SC in 2023 defer to the dicta of the Justices in 1979 ... if two-thirds of FCT had been intended, would the 'legislature' have not said so in clear terms!

Is this what it is or there is or there are other intents of the legislature? We shall see in the coming weeks/months as the Supreme Court Justices are called to interpret.

{intra and inter conditioning sentence} Bringing the intra 'and' within s134(2)(b), and the inter 'and' between s134(2)(a) and (b), we would have to look at the ratio or the reasoning of the majority in Buhari v INEC 2008. Thus, it is safe to say:

• for the inter, there are two distinct conditions in 2(a) and 2(b) that must be satisfied independently and jointly;
• for the intra, there are two phrases. One is a condition, and the other is a non-conditioning expression.
• --- (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.
• for the intra, we alternatively break down into two part with each having a conditioning part as
• --- (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 (he has not less than one-quarter of the votes cast at) the Federal Capital Territory, Abuja. {insertion mine}

PS: The writer notes the writing of s146 of the Electoral Act 2006 (which Buhari v INEC is based on) carries through to s135 of the Electoral Act 2022.

Consideration of FCT as a State or special State

Throwing into the mix is an existing judgement (pending implementation!!). The Appeal Court judgement, extensively interrogated s299 of the Constitution vis-a-vis the promulgation of the FCT (Decree 6 of 1976; Cap 503 LFN, 2004). [I note there purports to be a Senate resolution. The writer, (mindful of misinformation), cannot locate a/the Senate Votes and Proceeding for 31 Jan 2019).

The Baba-Panya v President 2018 Appeal Court judgement places FCT as one of the States of the Federation pursuant to ... as if ... in s299 of the Constitution.

I leave it for the Courts to make a determination of the construction of s134(2) of the constitution as read with s299 and s3 of the Constitution.

Conclusion:

Inevitably, precedent shall come to play. It will be foolhardy not to consider Awolowo v Shagari, 1979 as applicable or irrelevant. On the premise that it would be and should be

• the 1999 Constitution would be interpreted according to the 'Canon of Interpretation'.
• The 'intent' of the legislature (in framing) would be interrogated
• There was no FCT in 1979
• There was litigation about two-thirds in 1979
• The drafter of the 1999 Constitution would be considered to have 'learnt their lesson' and 'covered their ground'
• FCT is given special consideration and defined in section 3 and clarified in Part III (Federal Capital Territory, Abuja Executive Body)
• The 'special' dispensation of the FCT necessitates the need to consider it alongside other States so that the FCT is not disenfranchised or 'belittled'.
• The principle of democracy and social justice in s14

I will not make a pronouncement. This article gives pointers to "matters to be decided" in considering FCT in the context of the States of the Federation (of Nigeria).

--- A. Kayode Adesemowo (2023)

Nigeria Constitution (1999) section 2.?

2.?(1)?Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria.

Nigeria is one indivisible and indissoluble sovereign state to be known by the name of the Federal Republic of Nigeria

(2)?Nigeria shall be a Federation consisting of States and a Federal Capital Territory.

Constitution (1999) section 3.?

(1)?There shall be 36 states in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara

(2)?Each state of Nigeria, named in the first column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of that Schedule.

(3)?The headquarters of the Governor of each State shall be known as the Capital City of that State as shown in the third column of the said Part I of the First Schedule opposite the State named in the first column thereof.

(4)?The Federal Capital Territory, Abuja, shall be as defined in Part II of the First Scheduled to this Constitution.

(5)?The provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.

Nigeria Constitution (1999) section 299.

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 -

Nigeria Constitution (1999) section 134.?

... ...

(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 no 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

Nigeria Constitution (1999) section 14:

14.?(1)?The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.

Nigeria Electoral Act No. 13, 2022: Certain defects not to invalidate election.

135.(1) An election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election.

Nigeria Electoral Act No. 6, 2006: Certain defects not to invalidate election.

146. (1) An Election shall not be liable to be invalidated by reason of non compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election

Citations:

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309 (1 August 1985) - Australia

Natal Joint Municipal Pension Fund v Endumeni Municipality (920/2010) [2012] ZASCA 13; [2012] 2 All SA 262 (SCA); 2012 (4) SA 593 (SCA) (16 March 2012) - South Africa

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others (CCT 27/03) [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR 687 (CC) (12 March 2004) - South Africa

Chief Obafemi Awolowo v Alhaji Shehu Shagari & Ors (SC 62 of 1979) [1979] NGSC 49 (26 September 1979) - Nigeria

Muhammadu Buhari v Independent National Electoral Commission and Ors (SC 51/2008) [2008] 10 (12 December 2008) - Nigeria {Buhari v INEC, (2008) 19 NWLR (PT 1120) 246}

Musa Baba-Panya v President of the Federal Republic of Nigeria and Ors [2018] 15 NWLR (pt 1643) 395 - Nigeria

Kassim v. Adesemowo & Ors (SC 448/2012) [2021] LCN/5059(SC) (07 May 2021) - Nigeria

Electoral Act No. 13, 2022 - https://placng.org/i/wp-content/uploads/2022/07/Electoral-Act-2022.pdf

Electoral Act No.2, 2006

##nigeriadecides2023

#FCT

#election2023

#twothird

#Tinubu #Obi #APC #LP

[Edit: 06 Mar 23]