April 23, 2023

Resolving Abuja’s real status is overdue 

heavy rainfall

By Tonnie Iredia

Senate President Lawan’s senatorial nomination bid and the earlier Imo State Governorship election are two recent cases whose controversial outcomes have continued to annoy many people including retired and serving judges. A third case that may have such lasting impact is the controversy concerning what a candidate must score in Abuja, the Federal Capital Territory as a condition for becoming president.  According to Section 134 of the Nigerian Constitution 1999, a candidate can only win a presidential election in Nigeria if he scores majority of votes at the election which must in addition not be “less than one quarter of the votes cast at the election in each of at least two-thirds of all the states of the Federation and the Federal Capital Territory Abuja.”

Public understanding of the provision has remained contentious. Rather than joining those making premature comments on the subject, this article hypothesizes that head or tail, the electoral importance of Abuja’s hegemony is not one that can easily be discountenanced. If the judiciary decides that it is not mandatory for any candidate to win in the territory, the consequences of the decision may not be less than the impact of a contrary decision. It is therefore a battle that must get to the Supreme Court for the most senior judges of the land to conscientiously examine and interrogate. Thus, efforts must be made to prevent the subject from becoming one of those which erode the integrity of our justice system. For this reason, this is not a subject to be left to judges alone. Civil society groups need to undertake public enlightenment schemes that can prepare citizens to appreciate the rationale for whatever decision is eventually made.

Interestingly, some of the arguments so far canvassed concerning the subject are incorrect. The common belief for instance that the Supreme Court had in the past pronounced on the matter is false. In fact, the Judiciary has had no cause to deal directly with the question of the 25 percent of votes in the FCT because in all the presidential elections in Nigeria since 1999, each winner always met the requirement. It has therefore not come before the judiciary as a ground for reviewing any person’s victory. The presidential election of February 25, 2023 where the candidate declared by INEC as president-elect did not win up to 25 percent of votes cast in the FCT is in actual fact the first time the matter is coming up for determination. Those who have already formed an opinion that there is a precedent to be followed might be misled into violence if their expectation is not met. They need to watch it.

Is Abuja one of the states of the federation? This is a major question of interest to many but it is not a new question. The judiciary has answered it before, yet the question has refused to go away. To imagine that those still raising it are unaware that the question had been answered before by the judiciary is simplistic. On two occasions: the cases instituted by Okoyede (2001) and Musa Baba-Panya (2015), saw our courts affirming that Abuja is one of the states of Nigeria. The decisions were hinged on Section 299 of the constitution which provides that Abuja should be treated as if it were one of the states of the federation. There are several reasons why the decision looks suspect. First, what immediately follows the provision suggests that there is a limit to when, where and how the provision is applicable. This is because if Abuja is to be treated as a state at all times, it would not have been necessary for the provision to immediately detail how the legislative, executive and judicial functions of Abuja were to be handled. They would have just been left to run as states handle theirs. 

A second reason why not everyone is persuaded that the drafters of the Nigerian Constitution intended to make Abuja a state of the federation is their failure to change their other provision which says that Nigeria shall have 36 states. Why couldn’t they simply say 37? In addition, the same Constitution formally describes Abuja as the Federal Capital Territory(FCT).  There is also the issue of whether an entity is exactly same as one that is treated like it. One school of thought provides an interesting analogy; that if a man choses to treat his stepson as if he is his son, it does not change the fact that a stepson and a son are not the same in all respects – a stepson can never successfully claim to be the biological son of a stepfather simply because the stepfather treats  him as a son. Although the executive is known for deciding on which judgments to obey, it does not help the case of Abuja as a state that judicial decisions directing it to be so treated have never been obeyed by successive administrations.

To make the attainment of 25 percent of the votes cast in a presidential election mandatory for Abuja treats it differently from other states. Perhaps that is a strong point because states are supposed to be equal in the eyes of the law. But that is not the only case where Abuja is virtually a stand-alone entity. Indeed, there are too many things found in a state that are nowhere in Abuja. It has neither its own governor nor a legislature. The president serves as its governor while the national assembly makes laws on its behalf. Why would such an entity be regarded as a state when it does not have several things that states have? What appears obvious is that although Abuja is not a state, it is a special Nigerian territory that can attract certain provisions such as the 25 percent requirement. To start with, it is the only part of Nigeria where citizens especially civil servants are attracted from all over the country through the principle of federal character to cohabit. Every presidential candidate ought to be able to score just 25percent of votes cast in such a location of diverse citizens that is a miniature Nigeria

It is also important to note that for a candidateto be elected as governor of a state, such a candidate must score 25 percent of the votes cast in at least two-thirds of what makes up a state. Considering that no one disagrees with the fact that the president is the governor of Abuja, is it too much for Abuja to be a mandatory place where such a president should meet that requirement? Many would agree that Abuja where a president stands-in as governor ought to be where the 25 percent requirement is not negotiable. Otherwise, there would be no basis for a president who could not attain that basic requirement to be imposed on the people of Abuja who apparently didn’t vote for the particular president. Ordinarily, this should not give room to debate, but unfortunately the subject has been so politicised that supporters of different parties are not likely to take any decision on it lightly. This is why the judiciary needs to take a comprehensive look at the subject once and for all. 

At the same time, a decision which categorically makes Abuja, the 37th state is likely to agitate those who would see it as an attempt to give more states to the North. In 1967 when General Yakubu Gowon turned Nigeria into 12 states, the North and the South had 6 states each. Some Nigerians didn’t think it was fair toin later years give  the North 19 of the 36 states, leaving the South with only 17. To elevate Abuja to a state thereby increasing the gap between the North and South respectively to 20: 17, is perhaps not the best way to attain the much desired unity in the country.  Our apex court can help stabilize the polity by halting the situation in which our constitution specifically provides for 36 states, yet we seem to have 37. The lessons of two-third of 19 states which we faced in 1979, ought to have persuaded us away from a figure that is odd-numbered. Otherwise, problems of two-thirds of 37 which await us in future can be resolved now.