Why getting most votes is not enough to become Nigeria’s president

By Omeiza Ajayi

ABUJA – No candidate can become Nigeria’s president simply by polling the highest number of votes. The 1999 Constitution also demands that the winner shows support across the federation.

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Also, there is no fixed number of votes that guarantees victory in presidential. Neither 10 million nor 15 million votes means anything on its own.

Two conditions are set out in Section 134(2) of the Constitution. A candidate must first have “the highest number of votes cast at the election.”

The second condition is the spread. The candidate must have “not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the states in Nigeria and the Federal Capital Territory, Abuja.”

Nigeria has 36 states, and two-thirds of 36 is 24. The arithmetic is less settled once the Federal Capital Territory, FCT, is counted as a 37th unit, because two-thirds of 37 is about 24.7.

Lawyer Femi Falana (SAN) read the provision as meaning “25 states or 24 states plus the FCT”. The Constitution itself says in Section 2(2) that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.”

In 2023 and 1979

The question of whether 25 per cent in Abuja is a separate, compulsory test went to the Supreme Court after the 2023 election. Atiku Abubakar of the Peoples Democratic Party, PDP, and Peter Obi of the Labour Party, LP, argued that Bola Tinubu of the All Progressives Congress, APC, had failed it.

Tinubu scored about 20 per cent in the FCT, while Obi won the territory. The Independent National Electoral Commission, INEC, argued that by scoring 25 per cent of the valid votes cast in 29 states, Tinubu had already met the constitutional requirement for presidential election.

On Thursday, 26th October 2023, a Supreme Court panel led by Justice Inyang Okoro upheld the lower court’s ruling. The justices held that the FCT has no special status above the states.

Under that ruling, 25 per cent in Abuja is not a standalone condition for victory. Section 299 of the Constitution, which treats the FCT as a state, was central to the reasoning.

The arithmetic has been fought over before. In 1979, Obafemi Awolowo argued that two-thirds of the then 19 states meant 13 states, and that Shehu Shagari had reached 25 per cent in only 12.

The Supreme Court settled that dispute by concluding it would be “12 two-thirds”. That meant 25 per cent in 12 states and 25 per cent of two-thirds of a 13th.

When no one meets condition…

What happens when nobody meets both conditions is also spelt out in Section 134. INEC must, within seven days of the result, arrange a run-off between two candidates.

The first is the presidential candidate with the highest number of votes overall. The second is the candidate with a majority of votes in the highest number of states.

If more than one candidate ties on states, the one with the higher total votes takes the second slot. In the run-off, the winner must have a majority of the votes cast and also meet the spread requirement.

If that run-off also fails to produce a winner, INEC must, within another seven days, hold a third election between the same two candidates. In that round a simple majority of the votes cast is enough, with no spread requirement.

Rule in practise

The 2023 election shows how the rules worked in practice. Tinubu polled 8,794,726 votes; Atiku 6,984,520; Obi 6,101,533, and Rabiu Kwankwaso of the New Nigeria Peoples Party, NNPP, 1,496,687.

Tinubu’s winning total was roughly 36.6 per cent of the 24,025,940 valid votes cast. He and Atiku won 12 states each, while Obi won 11 states and the FCT, and Kwankwaso won Kano.

None of that mattered as much as the spread. Tinubu met the 25 per cent test in enough states to avoid a run-off, and the then INEC Chairman, Mahmood Yakubu, declared the result.