What happens if Tinubu’s election is nullified?

Sufi Umar July 17, 2023

President Bola Ahmed Tinubu faces the very real possibility that his election as Nigeria’s president might be nullified, either at the Presidential Election Petition Court (PREPEC) where two petitions filed by candidates of the Labour Party (LP), Mr. Peter Obi and his counterpart of the People’s Democratic Party (PDP), Alhaji Atiku Abubakar are seeking the nullification of his victory at the February 25, presidential election or at the Supreme Court hearing which is expected to have the final say on the matter.

The major hurdle Tinubu is facing is that the petitioners argue that he cannot be said to have won the election having not scored 25% of the lawful votes cast in the Federal Capital Territory (FCT).

Tinubu was declared the winner of the election with the highest number of votes, but he had only won 18.99% of the votes in the FCT.

Section 134(2)(b) of the 1999 Constitution of Nigeria states that to be declared the winner of a presidential election, a candidate must:

Have the highest number of votes cast at the election; and
Have not less than 25% of the votes cast in two-thirds of all the states in the Federation and the FCT.

Why is it important to score 25% of the votes cast in FCT?

To understand why winning 25% of the votes cast in FCT might be a requirement to be Nigeria’s president, it is important to understand the intent of the framers of the constitution. The framers want any candidate that will emerge as president to have widespread support amongst Nigeria’s diverse ethnic groups. Hence, the requirement to get 25% in at least two-thirds of all the states in the Federation. This will ensure that a candidate will not only seek support from their ethnic group only, but travel around the country to seek the support of other groups as well.

By its constitutional role, the FCT is the most diverse city in Nigeria, where all ethnic groups and states are almost equally represented. The city is home to lawmakers proportionally drawn from all over the country and also home to civil servants hired on the principle of federal character.

The framers want a popular president across the country, so it should be of no surprise if they require the president to at the very least, get 25% of the votes cast in the most diverse city in the country.

What happens if Tinubu’s election gets nullified?

If the courts agree with the above submission and decide to nullify Tinubu’s election because he did not satisfy the requirements of the Constitution, then we will have a rerun between him and the candidates of the People’s Democratic Party (PDP), Alhaji Atiku Abubakar. The PDP candidate came second in the February 25 election which qualifies him for the rerun election.

Both men will be given between 60 to 90 days to prepare and campaign for the rerun. Meanwhile, the next person in the presidential line of succession after the President and his Vice is Senate President Godswill Akpabio, who will become interim president until the rerun election produces a new president.

This has never happened before in the country’s political history, which is why Tinubu’s counsel cautioned the court not to nullify his client’s election saying “it would lead to absurdity and manifest injustice to nullify the election for the entire nation because of the nullification (sic) of the election of one State, some Local Government Areas, Wards and Units.”

What is Tinubu’s defense?

Chief Wole Olanipekun, SAN, counsel to Tinubu has been defending his client in his final submition to the Presidential Election Petition Court (PREPEC) saying;

“While we have premised this issue on the combined reading of sections 134 and 299 of the Constitution, and section 66 of the Electoral Act, in the course of our arguments … t is apt to submit right from get-go that election is about votes and voters, and when votes and voters are mentioned in any part of the world, there is no superiority of votes or voters as all votes and voters are equal”, adding that there is no superiority between the votes from voters secured in either Lagos or Kano, which are the most populous States and Bayelsa, Ebonyi and Ekiti, which are the least populous States.

Olanipekun further argued that, while Section 3(1) of the Constitution specifically lists the 36 States by their respective names, the sidenote reads thus: “States of the Federation and the Federal Capital Territory, Abuja.” Section 299, for ease of reference and clarity, provides thus: “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 phrase ‘as if’ has been defined in Corpus Juris Secundum, page 298 as connoting “in the same manner and to the same extent.”

“May we draw the attention of the court to the fact that there is no punctuation (comma) in the entire section 134(2)(b) of the Constitution, particularly, immediately after the ‘States’ and the succeeding ‘and’ connecting the Federal Capital Territory with the States. In essence, the reading of the subsection has to be conjunctive and not disjunctive, as the Constitution makes it so. Pressed further, by this constitutional imperative, the Federal Capital Territory, Abuja, is taken ‘as if’ it is the 37th State, under and by section 299 of the Constitution.

“With much respect, any other interpretation different from this will lead to absurdity, chaos, anarchy and alteration of the very intention of the legislature. Our courts have always adopted the purposeful approach to the interpretation of our Constitution, as exemplified in a host of decisions, including but not limited to Nafiu Rabiu v. State (1980) 12 NSCC 291 at 300-301, Marwa v Nyako (2012) 6 NWLR (Pt. 1296) 199, 306 – 307, ADH Limited v AT Limited (2006) 10 NWLR (Pt. 986) 635, 649, Awolowo v. Shagari (supra), Abraham Adesanya v. President, Federal Republic of Nigeria (1981) 12 NSCC 146 at 167-168; A.G Abia v. A.G Federation (2002) 6 NWLR (Pt. 763) 265 at 365.

“The petitioners themselves admit this much in paragraph 107 of their petition, where they listed the FCT as the 37th State, after listing the States mentioned in section 3(1), as numbers 1 to 36. Again, the maxim, res ipsa loquitur applies to the petitioners.

“Coincidentally, these sections of the Constitution were considered by the Supreme Court in the celebrated case of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 105 and the apex court held thus:
“This provision appears clear to me. Where a candidate wins the highest number of votes cast in at least two-thirds of the 36 States in the Federation and the Federal Capital Territory Abuja, he is deemed to be elected …I do appreciate any ambiguity in the provision and even if there was one, this court is bound to adopt a construction which is just, reasonable and sensible. (See Maxwell on the Interpretation of Statutes, 12th Edition, Chapter 10). In my view, it would lead to absurdity and manifest injustice to nullify the election for the entire nation because of the nullification (sic) of the election of one State, some Local Government Areas, Wards and Units. Such a devastating result could hardly have been contemplated by the framers of the Constitution. It is my conclusion therefore that the cancellation of the election in Ogun State and the other smaller components does not substantially affect the election of the 1st and 2nd respondents. In the event, this petition fails and same is dismissed with costs which I assess at N5,000 in favour of each set of respondents.”

The senior lawyer submitted that from the apex court’s judgment above, it could be seen, “That even if results of elections are cancelled in more than one State (including the FCT), that election is not rendered invalid, provided, the winning candidate meets the constitutional requirements of one-quarter of the votes cast in two-thirds of the 37 States contemplated.

“Anything to the contrary would be devastating, and such was never contemplated by the framers of the Constitution.

“All the winning candidate needs is a majority of the votes, and even if there was no election in one State (including the FCT), or even if the election of a State/States (including the FCT) is/are voided, the entire election cannot be voided or cancelled.

“In concluding our arguments on this issue, we urge the court to hold that in any election where the electorate exercise their plebiscite, there is neither a ‘royal’ ballot nor ‘royal’ voter; and that residents of the FCT do not have any special voting right over residents of any other State of the federation, like the concepts of preferential shareholding in Company Law. We urge this court to resolve this issue against the petitioners and in favour of the respondent”, he pleaded.