Bola Ahmedu Tinubu, the All Progressives Congress, APC, presidential candidate in the 2023 election and now President and Commander-in-Chief of the Armed Forces of the Federal Republic of Nigeria, ruffled feathers recently when he warned the Presidential Election Petition Tribunal, PEPT, against attempting to remove him from office on the grounds that he did not receive 25% of the total votes cast during the presidential election in the Federal Capital Territory.
He cautioned that such action might destabilize the country and lead to anarchy.
President Tinubu asked the election tribunal to dismiss the petition seeking the nullification of his election for failing to obtain 25% of the lawful votes cast in the FCT, arguing that having obtained 25% in approximately 30 states of the federation, his failure to obtain 25% in the FCT would not be strong enough to deprive him of his hard-earned victory.
Tinubu ran for president on the APC platform on February 25 and was declared the winner by the Independent National Electoral Commission, INEC, after polling 8,794,726 votes, beating his closest rivals, Alhaji Atiku Abubakar of the Peoples Democratic Party, PDP, who polled 6, 984, 520 votes to place second, and Mr. Peter Obi of the Labour Party, LP, who polled 6,101,533 votes.
However, Atiku and Obi had approached the election tribunal, claiming that the elections were marred by widespread voter intimidation and suppression, ballot box snatching and destruction, over-voting, results manipulations, thuggery, vote buying, INEC’s failure to follow its own rules and procedures, and physical assault on voters, among other things.
Apart from that, Atiku and Obi want Tinubu’s victory overturned since he did not receive 25% of the total legitimate votes cast in the FCT, which is a constitutional condition before anyone can be named President of Nigeria.
Since Tinubu was declared the winner of that election, political discourse has swung like a pendulum. Nigerians who had been politically inactive prior to the elections have suddenly become involved, discussing and analyzing political happenings from the election tribunal.
Analysts agree that there has never been such a high level of political awareness and participation in Nigerian politics as there was during the 2023 general elections.
They also agreed that the country’s political firmament had never been as tense and ominous as it was between the time Tinubu was declared the presidential election victor and May 29, when he was sworn in as President of the Federal Republic of Nigeria.
However, Atiku and Obi have pursued their case at the election petition tribunal, each producing images, videos, and documented evidence to establish that Tinubu should not have been declared president in the first place, let alone sworn in.
The failure of Tinubu to receive 25% of the votes cast in the FCT looks to be the greatest evidence against the president because it is a constitutional issue that does not require the petitioners to show any witnesses.
In a final written presentation to the tribunal rejecting the petition, Tinubu, through his legal counsel, Wole Olanipekun, contended that the FCT is the 37th state for election reasons. Any alternative interpretation, he said, would “lead to absurdity, chaos, anarchy, and alteration of the very intention of the legislature.”
“The issue in this address is very novel in the sense that it is not a petition stricto senso, familiar to our electoral jurisprudence, as the petitioners are not, this time around, complaining about election rigging, ballot box snatching, ballot box stuffing, violence, thuggery, vote buying, voters’ intimidation, disenfranchisement, interference by the military or the police,” Olanipekun said.
The lawyer was referring to a clause of the Nigerian Constitution that specifies that a presidential contender must receive 25% of the votes cast in two-thirds of Nigeria’s 36 states and the Federal Capital Territory, Abuja.
Since Tinubu was proclaimed the winner of the presidential election despite not receiving a majority of votes in the FCT, Nigerians of all classes, including people who are not lawyers, have aired their views on the topic.
Some people have maintained that the constitution recognizes Abuja as one of the country’s states. Those on this side argue that the phrase ‘and’ in the constitution, ’36 states of the federation and the FCT,’ does not truly signify that the FCT is distinct from the 36 states of the federation. To them, the FCT is no different than any other state in the union.
They said that Tinubu, who received 25% of the votes cast in around 30 states, is eminently qualified to be declared president because the constitution requires a candidate to receive 25% in two-thirds of the 36 states and the FCT, which is 24 states.
Some argue that the word ‘and’ as used in the constitution simply means that if a candidate receives 25% of the votes cast in two-thirds of the 36 states but does not receive 25% of the votes cast in the FCT, the candidate has not met the constitutional requirement and should not be declared president.
They further claimed that if the founders of the constitution had intended something else, they would not have included the word ‘and’ there. They also disagreed with individuals who claimed that the FCT is the same as any other state in the federation because, unlike states, the FCT does not have a governor who is elected by the voters, but rather a minister who is appointed by the president.
Others, however, believe that, while the constitution states that obtaining 25% of the votes cast in the FCT is a mandatory requirement before any candidate can win the presidential election, it is up to the judges to consider what will best serve national interest and unity before passing their judgement.
Tinubu’s legal team, on the other hand, appears to have concurred with people on the other side of the split, stating that the courts have traditionally been cautious about adopting extreme interpretations of the Constitution that could cause instability.
“Our courts have always taken a purposeful approach to interpreting our Constitution, as evidenced by a number of decisions,” the team stated.
Tinubu’s legal team further insists that citizens of the Federal Capital Territory, Abuja, are no more special than Nigerians from the other 36 states and should not be treated differently.
“In concluding our arguments on this issue, we urge the court to hold that any election where electorates exercise their plebiscite, there is neither a ‘royal’ ballot nor a ‘royal’ voter; and that residents of the FCT have no special voting right over residents of any other state of the federation, in a manner similar to the concepts of preferential shareholding in Company Law,” the team said. We request that this court rule against the petitioners and in favor of the respondent.”
Taking the argument even further, the President’s legal team claims that a president is not necessary by law to receive 25% of the votes cast in the FCT.
“We would like to draw the court’s attention 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 to the States.” In essence, as the Constitution clearly states, the reading of the subsection must be conjunctive rather than disjunctive. Under and by virtue of section 299 of the Constitution, the Federal Capital Territory, Abuja, is taken ‘as if’ it is the 37th State.”
However, a claim attributed to President Tinubu’s legal team that removing him as president because he did not receive 25% of the votes cast in the FCT could lead to a collapse of law and order in Nigeria has triggered another round of debate.
Dr. Pogu Bitrus, President of the Middle Belt Forum (MBF), called the president a liar for making such a remark.
Nobody is above the constitution, according to the Middle Belt politician, and if the constitution has been construed to mean that the ‘and’ is conjunctive, and that the FCT is in addition to the two-thirds of the states, then it is not for President Tinubu to decide.
“He cannot claim to be above the constitution and national laws.” If the Supreme Court interprets the law and the constitution correctly, it is above not only him, but also every other Nigerian like him. This is because the constitution is the standard; it supersedes all other laws in Nigeria. It’s the only thing that holds us together.
“So, if the constitution interprets it that way, it is not how I, he, or any other person feels, because the law does not respect persons.” He cannot tell us that if the tribunal interprets the constitution, there will be anarchy in the state. “The country and the constitution are higher than him,” he stated.
Also, a legal practitioner, Marcellus Onah, disagreed that there would be disorder in the country if the tribunal removed the president because he did not receive 25% of the votes cast in the FCT.
“What does he mean by a state of anarchy in the land?” Yes, a few of his followers may wish to cause problems, but only in Lagos, not in any other South West state. And I am confident that the security personnel will know what to do in such a situation.
“As a result, he cannot threaten anyone because he is no more Nigerian than anyone else.” After all, no one is above the law. Nobody should claim to be above the constitution since it is the only document that governs how everyone in Nigeria acts.
“If the tribunal determines that he did not receive 25% of the votes cast in the FCT, there is nothing anyone can do.” That is all there is to it, and no amount of threat from him will change anything. The constitution must be followed at all times. That is the only way the rest of the world will appreciate us as a nation,” he remarked.