Analysis: What the Constitution says about a presidential candidate with 25% of the votes in the 24 states and FCT

In the hotly contested 2023 presidential election, Nigerians have raised the question of compliance with the constitutional requirement for a candidate to secure a majority of 25% of the total votes cast in Two-thirds of all the States including the Federal Capital Territory, before being declared as president.

What the constitution says
There are two (2) conditions for determining a winner of a presidential election:

1. A presidential candidate must secure the highest number of votes cast at the election.

2. He/she must secure not less than 25% of votes cast in at least two-thirds of all the States of the federation and FCT.

Electoral Act 2022

The Electoral Act (2022) states that the winner of the presidential election will be subjected to the provisions of section 134 of the Nigerian Constitution.

“In an election to the office of the President or Governor whether or not contested and in any contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subjected to the provisions of sections 133, 134 and 179 of the Constitution,” the Electoral Act partly read.

According to the 1999 Constitution, presidential candidates must not only win a single majority but whoever will be recognised as an elected president must have won a stipulated minimum in every region of the country.

READ MORE: Obi Win Enugu, Take Lead To 12 States

The candidate that receives the highest number of votes shall be declared elected only if they also fulfill a quota of 25 percent of the total votes cast in about 24 states including the Federal Capital Territory.

Section 134, subsection 2, of the 199 Constitution states:
“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-he has the highest number of votes cast at the election; and he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.”

Interpretation

The failure of one candidate to fulfill this requirement will make the election on February 25 inconclusive. This implies that INEC will have to conduct a Run Off (second election). It must be conducted within 21 days from the date of the first election from the date of the declaration of the results for the first round of the election.

What is a Run Off?

This is a voting system used to elect a single winner where no candidate meets the condition for securing a win in the first round.

In this stance, not all the 18 political parties will be on the ballot for the Run Off but only two candidates will be on the ballot. The first will be the presidential candidate who secured the highest number of lawful votes while the second is the one among the remaining candidates, who has a majority of votes in the highest number of States.

Lawyers react

In a bid to understand what the law says about section 134 of the Constitution, AFLM x-rayed the opinions of two renowned Nigerian lawyers.

In his submission, Ridwan Oke, the legal services director of Connect Hub Nigeria, opined there will be a rerun election if the candidate with the highest number of votes still fails to have the required 25 percent.

“We have 36 states of the federation and two-thirds of that is about 25. So, if you are a presidential candidate, you must have 25 percent of the total votes cast in at least 25 states of the federation before you are declared [winner]. If nobody has that, if the candidate with the highest number of votes still fails to have the required 25 percent, there will be a rerun election,” Oke told FIJ on Friday.

“When it goes to the rerun, it will only be the majority [votes required]. So, if you are polling 10 million votes, you must have at least 25 percent of the total votes in 25 states in that majority vote. The candidate does not have to win all those 25 states. They only need to meet the minimum 25 percent in the states,” he told FIJ.

On the contrary, Femi Falana, a foremost Nigerian legal practitioner said a candidate can be declared winner of a presidential election in Nigeria without necessarily scoring up to 25 percent of votes cast in the Federal Capital Territory.

“Section 299 of the Constitution said the FCT shall be treated like a state,” Mr Falana told newsmen on Tuesday afternoon.

“Therefore, the constitutional requirements for 25 percent of votes in two-thirds state and the FCT only means that the FCT be added to the 36 states to arrive at 37 states,” he added.

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