Presidential Election Judgement And Implications Of The 37th State

 By Sola Ebiseni

The  judgements of the Presidential Election Petition Court just delivered last week, precisely on Wednesday, September 6, 2023 are expectedly the predominant and trending issue in the Nigerian polity. We do not intend to do an  intensive analysis of the judgments here today considering the fact that our final position is circumscribed by the decisions of organisations to which we subscribe in membership, principles and ideologies.

It, however, suffices to say that the judgements, as one, is a landmark in its most damaging revisionist dimensions for our laws generally, election jurisprudence in particular and for the Nigerian polity and politics. It did not require much literacy from anyone listening to the delivery of the judgement to decipher from the very beginning that the petitions were really undergoing butchery rather than any forensic legal analysis that may lead to justice.

Some of the scary issues, including requiring the petitioners to have specifically pinpointed the number of polling units among the total of 176,974 across the country where elections were allegedly manipulated; that the petitions were rendered worthless on the grounds that statements on oath of witnesses who attended court on its subpoena were not frontloaded and attached to petition before the expiration of statutory time for filing the petitions, failure which such testimonies were discountenanced by the court.

Of concern to Nigerians, not just the petitioners and their supporters should be the curious decision of the Petition Court that the Electoral Act and the INEC Regulations and Guidelines provide for only manual collation of election results, that there is no provisions for mandatory electronic transmission or collation of election results and that the only collation system provided for by the Act and the Regulations, are the various collation centres by which pronouncement a huge sum of money has not only wasted for quality technological control but the culture which preaches that ballot boxes be ‘grabbed, snatched and run away with’ is perpetuated. 

Of course, well-meaning Nigerians and our friends round the world will be interested in the final decision on the various issues of disqualification under Section 137 of the Constitution. Of special interest to us as it is more of the interpretation of the Constitution is the court’s decision on Section 134(2) (b) of the Constitution on the requirements for declaring any person as the President of the Republic of Nigeria. The court on page 321 reproduced Section 299 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; 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”.

However, court interpreting the provisions on page 322 of the judgement said “the provision states most unequivocally that the entire provisions of the Constitution shall apply to the Federal Capital Territory as if it were one of the states of the Federation”. Further on page 323 it was held that “the point being made here is that, contrary to the position of the Petitioners, by the express provisions of Section 299 above the provisions of the entire  Constitution shall apply to the Federal Capital Territory as if it were one of the states of the Federation”.

Concluding on page 324 the court held as follows: “As expressly stated in Section 299, of the Constitution, for the purpose of fulfilling the requirements of Section 134 (2) (b) of the Constitution for the return of a presidential candidate as duly elected, the Federal Capital Territory Abuja is to be treated as one of the states of the Federation in the calculation of two-thirds of the states of the Federation. Such that if the candidate polls twenty-five per cent or one-quarter of the votes in two-thirds of 37 states of the Federation (FCT Abuja inclusive) the Presidential candidate shall be deemed to have been duly elected, even if he fails to score twenty-five per cent of the votes cast in the Federal Capital Territory, Abuja as the Second Respondent did”.

First, we have deliberately underlined some words and figures like ‘entire’ and ’37 states’ which are not in any section of the Constitution which the court have curiously imported into the inviolable grundnorm with monumental implications and damaging consequences. Section 299 which serves as the foundation on which the court erected its interpretation of Section 134 did not contain the word ‘entire’ imported therein by the Petition Court. The section unambiguously and strictly deals with the administration of the FCT wherein the National Assembly shall make law like the House of Assembly does for a state, the President as its Governor and the High Court of the FCT having same status and jurisdiction as state High Court. This is what happens even in reality and as determined by the Supreme Court in the case of Bakari v Ogundipe excitedly cited by the court but wrongly with the greatest respect.

To remove any temptation to extend the provisions of the section to other unintended sections the section in subsection (b) says “all the powers referred to in paragraph (a) of this section shall be exercised in accordance with the provisions of this Constitution. 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 limits the effect of Chapter VIII with respect to the FCT to the administrative matters set out thereunder.

The importation and inclusion of the phrase ‘entire provisions of the Constitution’ is to deliberately extend the reference to the administration of the FCT, Abuja in section 299 ‘as if it were one of the states of the Federation” to section 134 for the purpose of justifying the declaration by the INEC. For clarity, the 7th edition of Black’s Law Dictionary defines the word “entire” as an adjective which means “whole; complete in all parts. Not divisible into parts”.  The court has amended the Constitution and thus audaciously held that “if the candidate polls 25 per cent or one-quarter of the votes in two-thirds of 37 states of the Federation (FCT Abuja inclusive) the Presidential candidate shall be deemed to have been duly elected.”

To give effect to the 37th state the constitution will have to be amended in the “entire” parts which will include Section 2 (2) which distinguishes the states and FCT. Section 3(1) which provides that “there shall be 36 states in Nigeria” with their constituent Local Governments in Part 1of the First Schedule may need to be amended to accommodate the FCT as the 37th State and the Area Councils therein changed to Local Governments. Section 3 (4) which defines the FCT with particulars stated in clear geographical and cartographic details in part 2 of the 1st schedule, may have to be defined in terms of the new Local Governments in the same manner as other states.

In like manner, section 7 which deals with the Local Government system and gives the government of every state power to ensure their existence etc; the process of new states creation or boundary adjustment in Section 8 as well as  decisions on the  alteration of the constitution itself all of which require the participation of 2/3 or ¾ of the states of the Federation to the exclusion of the FCT will now mutatis mutandis have to be amended. Of course, section 48 which provides that “the Senate shall consist of three Senators from each state and one from the Federal Capital Territory,  Abuja” will be altered to increase the number of senators of the new Nigerian 37th state to three.

The amendment will extend to section 162 to enable the new 37th state have access to the federation account. The decision to extend Section 299 to the ‘entire’ Constitution with the concomitant creation of Abuja as the 37th state is of  greater and catastrophic consequences for the structure of the Nigerian Federation. First, arising from the crisis thrown up by the definition of two thirds of the 19 states under the 1979 constitution and the Presidential Election of that year which culminated in the Awolowo v Shagari legal imbroglio which effects lingered till the Buhari coup of December 31, 1983 which ended the second Republic, Nigeria has ensured that the number of the federating states is divisible by three, which is the undisguised reason for the 30 states structure of  Babangida on August 27, 1991 and the present 36 wrought under General Sanni Abacha on October 1, 1996.

Just as the nation grappled with the true interpretation of 2/3 of 19 states whether it is to the next whole number of 13 or 12 2/3 as the Supreme Court finally and controversially resolved, by the Court of Appeal judgment, 25 percent of the 2/3 of its 37 states will amount to 24 2/3. While it may appear that no problem is posed in a situation where the declared candidate may have scored  25 percent in more than 25 states  which pyrrhic victory  the present interpretation seeks to protect, it cannot be overemphasised that a constitution is made as an all-time testament of a nation.

It is equally noteworthy that since the disruption of the 12 states structure created by Yakubu Gowon regime in 1967  wherein Nigeria was divided into 6 states each on North/South basis was disrupted by the 19 states of the Murtala/Obasanjo regime in 1976 which gave the North 9 as against 8 for the South, the imbalance has been a major cause of concern in the polity. The current 36 states of 19/17 to the advantage of the North has further widened the gap of imbalance and increased the temperature of agitation against it.  

The 2014 National Conference addressed the disequilibrium by proposing a 42 states structure with 21 apiece on North/South regional basis and 7 per the 6 geopolitical zones. It is this delicate balance that the Court of Appeal now seeks to upset by the insensitive and political interpretation of creating an additional 37th state increasing the northern tally thereof to 20. Whereas the Federal Capital Territory was created and announced by the Head of State, General Murtala Mohammed on the 3rd of February 1976, ten days before he was assassinated, as the potpourri of all ethnic groups and tribes and the land acquired by the Federal Government for such overriding public purposes, the FCT Minister (which oversees the territory as Governor on behalf of the President has always been persons of northern origin.

The appointment of Nyesom Wike, former Governor of Rivers State is seen as an aberration. We now in reality have persons said to be indigenes of the acquired FCT and who agitate in that capacity for permanent appointment as Minister of the Territory. Our humble opinion is that there is no  legal justification for the holding that the FCT Abuja is a State, the political implications therein is no less monumental in the negative sense.

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