Ex-NBA boss, Agbakoba, writes INEC, points at confusion in constitutional provision for election of president

Ahead of the upcoming general elections, renowned legal luminary, Dr Olisa Agbakoba, has raised some posers over a proviso within the constitution regarding the election of a president.

This was contained in a letter addressed to the Chairman of the Independent National Electoral Commission (INEC), Prof. Mahmood Yakubu, dated January 17, 2023.

Titled, “Clarification On Section 134 Of The 1999 Constitution,” Dr Agbakoba, a former president of the Nigeria Bar Association (NBA) expressed concern about the misgiving of many Nigerians who contacted him over the correct interpretation of Section 134.

The section in contention reads,

(1) A candidate for an election to the office of President shall be deemed to have been duly elected, where, there being only two candidates for the election –

(a) he has the majority 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.

(2) 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-

(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.

In his review as contained in the letter, Dr Agbakoba raised some questions about subsections 134 (1) (b) and (2) (b).

He wondered if “two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja” does that means either of the following;

(a) that a presidential candidate must score 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 which means 24 states, the 24 States will include the Federal Capital Territory Abuja as a “State”, or

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(b) that a presidential candidate must score 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 which means 24 states and in addition to meeting the one-quarter requirement in 24 states, a candidate must also win one-quarter of the votes cast in the Federal Capital Territory, Abuja.

“In this sense, a Presidential candidate must have one-quarter of the votes cast in the Federal Capital Territory, Abuja, in addition to scoring not less than one-quarter of the votes cast at the election in 24 States of the Federation, to be duly elected.”

Therefore, Agbakoba alluded that the aforementioned possible interpretations raise three major questions:

(1) Is the requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 States of the Federation; does this mean that the Federal Capital Territory, Abuja is incorporated in the 24 States?

(2) Is the requirement that a presidential candidate must score not less than one-quarter of the votes cast at the election in each of at least two-thirds of the 36 States of the Federation; does it mean that the presidential candidate must also score not less than one-quarter of the votes cast at the election at the Federal Capital Territory, Abuja?

(3) Can a candidate that scored not less than one-quarter of the votes cast at the election in 36 States of the Federation but fails to score one-quarter of the votes cast at the election at the Federal Capital Territory, be duly elected as President of Nigeria?

Concluding the letter, Dr Agbakoba implored the INEC to scrutinise these concerns in order to ensure a credible electoral process saying, “To be honest, I am not quite sure of the right answers to my questions. I just thought to bring this to your attention as something you might wish to clarify to the public.”

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