By Dr. Ugoji Egbujo

A controversy has arisen. A month before the election, a former NBA president had written to INEC seeking clarification. Olisa Agbakoba, SAN, wanted INEC to state its position on the true meaning of Section 134 subsection 2 of the constitution. INEC ignored the legal luminary. But on the eve of the election, a respected former Resident Electoral Commissioner came on national TV to deepen the ambiguity. Mike Igini stated that Section 134 imposes an additional duty on every presidential candidate to obtain at least 25% of the total votes cast in the FCT before he can be deemed duly. That was his literal and binding reading of that provision. Many dismissed that interpretation as narrow and absurd. It seemed to allocate a UN Super Power-type veto to Abuja. 

For clarity, Section 134 (2) says: 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-he has the highest number of votes cast at the election; and he has not less than one-quarter the votes cast at the election in each of at least two-thirds of all the states in the federal capital territory Abuja.

The question INEC avoided before the election has arisen. Perhaps INEC assumed that every literate fellow would understand that Abuja had the status of a state and that the provision would be read in the light that the spread requirement would mean 25% of votes cast in 24 plus Abuja, in 25 states. Perhaps INEC had no time for inane questions. So it didn’t even bother to clarify when Mike Igini its former REC went on air to complicate things and confuse the public. A responsible umpire would welcome every opportunity to straighten out the rules before a game commences. Only a dodgy umpire allows its mouthpieces to confuse participants while it wallows in elusiveness. Is INEC now such a dodgy organisation?  

Well, INEC has now acted on that situation. And afterwards, employing its customary riposte, it advised anybody with a contrary view can go to court. Some say INEC uses the judiciary to hide its mental laziness and moral crookedness. After INEC announced the results for Abuja, only candidate Peter Obi of the Labour Party met 25% of votes cast in Abuja. Tinubu got the highest votes countrywide and met the 25% requirement in over 24 states. Without a glance at Section 134, INEC declared Tinubu the winner. Anyone who watched how INEC casually ignored the Abuja 25% controversy would think Mike Igini was never a principal officer in the institution.

Perhaps, the INEC Chairman believes Mike Igini is a mischief-maker. But why didn’t he send Mr Okoye to dismiss the fake news? Perhaps, the INEC Chairman and his legal advisers were fed up with the barrage of questions from an ignorant public. The INEC chiefs might have wondered why anyone would think that the drafters of the constitution had sought to make Abuja a special state with powers to overrule the entire country. Because if 25% minimum requirement for Abuja is mandatory, then a candidate can win all the votes in the entire country, and not be president because Abuja residents dislike his face and wouldn’t give him 25% of their votes. INEC legal advisers might have advised the Chairman, who was the returning officer, not to bother himself educating an untrainable public that refused to understand that INEC didn’t upload results in real time because of a technical hitch.  

But there is a point the drafters could have had in mind that the INEC Chairman and his lawyers might have missed. It is true the constitution wants Abuja treated as a state. Lagos was a state when it was the capital. But Abuja isn’t a state like Lagos was. Abuja is a special territory with the rights of a state. In being state-like, Abuja must have the equivalent of an ‘executive governor’. The executive governor can’t be the minister because ministers are not elected.The FCT minister is a mere appointee of the president. The president is the executive governor of Abuja. He delegates his executive authority over the territory to the minister of the FCT. 

For clarity, the president has two distinct administrative duties. First, to administer the Federal Government, including the Armed Forces. Second, to administer the Territory of the Federal Capital, Abuja. The federating units are the states, and the states have governors and governments. The residents of each state choose their governors. That leaves the territory of Abuja as the only space without a governor. The residents of Abuja, in a proper democracy, must have a say, no matter how minimal, on who exercises executive authority over them. 

So to exercise executive power over the FCT, the president must have some specific mandate or approval from the electorate in the territory. That’s what democracy demands. The entire country cannot impose on Abuja a candidate Abuja residents are totally opposed to. To act as the governor of Abuja, the president must have some mandate from the Abuja residents. 

In demanding that a candidate must score 25% of votes in 24 states to be duly elected, the constitution’s drafters must have intended that two-thirds of states in the country recommend or approve the candidate. 25% is the threshold the drafters used to represent approval in each state. So once approved or recommended, the candidate is considered widely acceptable and can be president once he gets the majority votes. That mandate, however, is for the administration of the Federal Government and not for the day-to-day running of Abuja.

To administer Abuja, the writers of the constitution must have intended that a president seeks and obtains the approval or recommendation of Abuja residents. That is why the AND in section 134 subsection 2 must be read literally because its meaning isn’t absurd. 25% is a recommendation. Abuja residents must recommend who amongst the presidential candidates they can trust to oversee the territory. Mathematically, they can recommend a max of four.

So a mandatory requirement of 25% of the votes cast in Abuja for all presidents, rather than render Section 134(2) absurd, cures a democratic deficit.