Abuja’s Special Constitutional Status And Why It Is Not A State

 By Sola Ebiseni

Contrary to wild assumptions for and against, Section 134 (1) (b) or 134 (2) (b) which deals with the requirements of 25 per cent of the votes cast at the Federal Capital Territory, FCT, as a prerequisite for declaring a candidate winner of the Presidential election in Nigeria, has never been directly and purposely interpreted by our courts. This is because no one has ever been declared President without having scored 25 per cent of the votes cast in the FCT to invoke the jurisdiction of the court to interpret the section accordingly.

It is a cardinal principle of our jurisprudence that courts do not indulge in speculative or academic matters. Its authoritative jurisdiction is invoke to interpret live issues. Thus, none of the cases so far cited from the varied opinions is precedent for our purpose. As stated by the Supreme Court in a plethora of cases “the decision of a court must always be considered in the light of its own peculiar facts or circumstances. No case is identical to another, though they may be similar. 

Thus each case is only an authority for what it decides and not more: Uwa Udo vs State (2016) 12 NWLR (Pt 1525) 1. For want of precedent, many commentators have latched on Section 299 of the Constitution and deliberately refused, in our views, to read that section in conjunction with the provisions of the entire Part 1 of Chapter VIII which deals with the administration of the FCT. We opine that it is by so doing that the purport and limitations of the provisions will be fully appreciated.

For clarity, 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; 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”.

To start with, the phrase “as if it were one of the states of the federation” shows clearly that the makers of the Constitution do not consider the FCT one of the states except in the peculiar circumstances enumerated therein, which is strictly on the administration of the FCT such that the National Assembly and President would exercise such powers in the administration of the territory as the House of Assembly or the Governor may exercise in respect of a State. 

This position is buttressed by the word “accordingly” which connects Section 299 with other provisions in part 1 of chapter VIII. The dictionary meaning of the word “accordingly” is 1: “in a way that is appropriate to the particular circumstances”. 2: “as a result; therefore”. Words of similar meaning include “appropriately”, “correspondingly”, “suitably” “duly”, “consistently”. The Constitution thus up to section 304 list exhaustively the circumstances under which its provisions “shall apply to the FCT as if it were one of the states of the Federation” which are strictly on the administration of the territory. 

Thus it is in that light that all the cases on the administration of the FCT were decided but which for sheer partisan considerations have been wrongly called upon to interpret the unrelated Section 134. Some of such cases so touted are: 1 Bakare v. Ogundipe (2021) 5 NWLR (Pt. 1768) SC. 1. Pp. 36-37, Paras. E-A.; 2. Baba-Panya v. President, FRN (2018) 15 NWLR (Pt. 1643) 395; (2018) LPELR – 44573 CA ; 3. Fawehinmi v. Babaginda (2003) 12 WRN; (2003) 3 NWLR (Pt. 808) 604 SC. But for space and time constraints, a section-by-section analysis of the Constitution will show that the FCT is not a state but a special territory which the military makers of the Constitution confer with special status in the Nigerian polity. We shall deal more with this while considering the intention of the legislature with respect to Section 134. 

From the beginning in Section 2 (2) the Constitution distinguishes the states and FCT providing that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory”. Section 3.(1) provides that “there shall be 36 states in Nigeria” which are defined by their constituent Local Governments in Part 1of the First Schedule. Section 3 (4) defines the FCT with particulars stated in clear geographical and cartographic details in part 2 of the 1st schedule. 

Section 3 (5) instructively provides that “the provisions of this Constitution in part 1 of Chapter VIII hereof shall, in relation to FCT Abuja, have effect in the manner set out thereunder. The provision clearly and unambiguously limit the effect of Chapter VIII with respect to the FCT to the administrative matters set out thereunder. In other words, the provisions of the Constitution in relation to the administration of the states are what is intended to apply to the FCT and not the unrelated provision in Section 134.

Thus, the provisions in part II simply divides the legislative powers of the federation between the National and State Assemblies with limitations. The FCT being not a state, has no legislature but subject to the laws made for it by the National Assembly as provided in Chapter VIII. Ditto for the Executive powers in sections 5 which are shared between the President and the state Governors.

The judicial powers as a result of its special nature are vested in the courts established by the Constitution itself or those with subordinate jurisdiction to the High Court as may be established by the National or State Assemblies. In all other sections, the Constitution is consistent in not treating the FCT as if it is a state in the determination of the political destiny of the federation.

 In section 7 which deals with the Local Government system, the government of every state shall ensure their existence; the FCT has no role therein nor in the process of new states creation or boundary adjustment in Section 8.  Such political decisions as alteration of the grundnorm itself, are the business of the states which require 2/3 or ¾ of the states of the Federation before an alteration of the Constitution can be effected.

The exercise is constitutionally restricted to the National and State Assemblies which  the FCT does not have. Not even in the amendment of the section relating to the FCT does it have any role to play as if it were one of the states of the Federation. In other words, if the phrase in section 299 that the FCT be treated as if it were a state is to be of general application in all matters as it is now being urged with respect to Section 134, it will then be said that constitutional amendments could not be effected without the FCT administration.

Perhaps the most significant indices of a federation is the issue of revenue or resource allocation. Being not a state, the Constitution does not provide for direct allocation to the FCT from the federation account which is shared between the government of the federation, States and Local Governments. 

The FCT only takes from the share of the Federal Government as provided in the Allocation of Revenue (Federation Account etc) Act.  

Other provisions which show that the drafters of the constitution never intended that the FCT be treated as if it were a state in all matters include section 48 which provides that “the Senate shall consist of three Senators from each state and one from the Federal Capital Territory,  Abuja” which restricts the entire territory to only one Senatorial seat whereas every state, some of which may be smaller in territory and population than FCT has 3 Senators. A brief history and politics of the FCT and why it is not treated as a state.

The making of Abuja began in 1975 with the setting up of the Akinola Aguda Committee by the Head of State, General Murtala Mohammed in search of a new capital for Nigeria and on the 3rd of February 1976, announced the birth of the new Federal Capital Territory as recommended by the Committee. In a documentary in Premium Times of February 3, 2022, titled Abuja at 46: The Dreams, Strides, Challenges by Nosike Ogbuenyi gave a number of reasons that informed the choice of Abuja which include “its centrality of location in Nigeria, ethno-religious neutrality, availability of enough land for expansion and non-ancestral dominance of the area by any of the nation’s major ethnic groups. 

It must be emphasised that the announcement of the shift of the Federal Capital from Lagos in the South to Abuja in the North was made in the same broadcast creating new states which altered the 12 states structure of the Gowon era to 19.  

The Gowon 12 states federation, maintained a balance of 6 states each between the North and South while the new odd number 19 states of Murtala disquietly tilted the balance in favour of the North on a 10/9 basis. It will therefore be the height of insensitivity that the South would lose the capital, short-changed by one state to the north and also had the said FCT as an additional northern state.

Thus, to allay the fears of Abuja being a state or belonging to any ethnic group, Section 261(2) of the Obasanjo 1979 Constitution provides that “the ownership of all lands comprised in Federal Capital Territory shall vest in the Government of the Federal Republic of Nigeria”. 

The provisions that the constitution shall apply to the FCT as if it were one of the states first appeared in Section 263 of the 1979 Constitution for the purpose of the administration of the territory as earlier stated.  To show that at no time did any government contemplate Abuja as one of the states, Section 315 of the unused Babangida 1989 Constitution gave the territory a mayoralty status and provides that “ a mayoralty comprising four Area Councils shall be created for the Federal Capital Territory and the administrative and political structure thereof shall be as provided by an Act of the National Assembly.

It is curiously instructive that Section 126 of the 1979 which is the equivalent of Section 134 of the 1999 constitution did not include 25% of the votes cast in the FCT for election to the office of the President notwithstanding that the FCT had been in existence since 1976. The reasons are not farfetched. 

Whereas, Abuja became a legal entity on the 3rd of February 1976, its chief visionary, Murtala Muhammed, was assassinated 10 days later. From Obasanjo who, as the second- in- command, took over from him, appeared not to be in a hurry to move from Lagos till he handed over to Shehu Shagari in 1979 and  who was also not bothered about what some people would refer to as the hurly-burly of Lagos.

General Buhari who took over from Shagari in 1983 was too busy cleaning the Augean stable to remember Abuja until Babangida came and pushed him out. From 1985 when Babangida took over, there was no concrete plan to relocate from Lagos until the coups started threatening, the last straw which broke the camel’s back being the Okar coup of April 22 1990 which hastened Babangida’s official movement of the capital from Lagos to Abuja on December 12th 1991.

Thus,  at the promulgation of the 1999 constitution on May 5, 1999 movement to Abuja was barely 9 years. There’s therefore the need to constitutionally compel the incoming civilian political elite to reckon with Abuja in their political calculations.  This explains why the two constitutions earlier referred to did not include the FCT as factor that shall be taken into consideration in the election of the President of Federation, it is made mandatory in the 1999 constitution.

As earlier stated, while the 1979 constitution in Section 263 provides that the constitution shall apply to the FCT as if it were one of the states, it does not reckon with the FCT for a candidate to emerge President. Our position clearly is that the provision in Section 134 to the effect that a candidate shall be declared winner of a presidential election if (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 in each of at least two-thirds of all the states in the federation and the Federal Capital Territory, Abuja is deliberate and made imperative for the leader of the Republic.

This position accentuated by the fact that there was no such provision in previous enactments. If  the fact that the constitution will apply to the FCT as if it were one of the states, which we insist is only clearly for administrative purposes, will suffice, then there would be no need to include “and the Federal Capital Territory, Abuja”. Reference to states of the federation would have been sufficient but lead to monumental inconsistencies with other provisions of the constitution.

It is to avoid such unintended inconsistencies that  Section 299 (c) which deals with the application of the constitution to the FCT forewarned with a caveat that “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”.  It is not to all matters in the constitution but those pertaining to the administration of the FCT treated therein.

In sum, the provision that compels a candidate to score 25% of the votes cast at the FCT to emerge as President is deliberate and mandatory. As the potpourri of Nigeria’s ethnic nationalities, a minimum of one-quarter of the votes cast will not only be a litmus test of the acceptability of the leader, his legitimacy is better assured. 

We have had in our political history where members of the NPC, the  party that controlled the majority the Federal Parliament were booed in Lagos in 1953 for their position, almost leading to the first secessionist declaration. It was that possible because the party had zero presence at the then Federal Capital Territory and seat of power.  Heavens will not fall if the hammer of the law falls on anyone who fails to meet this mandatory constitutional requirement. Nigeria, we hail thee!

*Ebiseni is the Secretary-General, Afenifere and South West Coordinator, OBIDATTI Campaigns Organisation.