ON SECTION 134 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (AS AMENDED), THE DEVIL IS IN THE DETAILS. April 08, 2023

 STANDING UP FOR THE NIGERIAN JUDICIARY:

INTRODUCTION!

Without mincing words, the Supreme Court has the final say on the interpretation of section 134 (2) (B) of the 1999 Constitution of the Federal Republic of Nigeria, regarding the legislative intent or the thinking of the drafters during the drafting process. NOT Dr. Datti Abba-Ahmed. He can express or hold an opinion on the issue as most legal pundits had done. However, such an opinion is not inviolate, sacrosanct, or overriding the decisions of the Tribunal or the Supreme Court. Therefore, declaring on national tv that the pending decision of the Tribunal or Supreme Court must mirror his interpretation of the section; otherwise, the military must intervene, is a rhetorical overkill and unprecedented in the history of political activism in Nigeria. That inordinate daring of the Nigerian judicial system motivated this essay.

THE CONTENTIOUS SECTION!

Under section 134 (2) (A) (B) of the Constitution of the Federal Republic of Nigeria, 1999:

(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, each of at least two-thirds of all the states in the Federation and the Federal Capital Territory, Abuja

ISSUES!

There are two issues here.

Issue Number One: Is the FCT a must-win territory to the extent that a candidate stands disqualified even if he wins at least two-thirds of all the States in the Federation, but has less than one-quarter of the votes cast at FCT?

In other words, a candidate must obtain at least one-quarter of the votes cast at the FCT in addition to the two-thirds requirements of all the states of the Federation to be elected president.

Issue Number Two: Does subsection (B) invariably imbue the FCT with the status of a state for the purpose of calculating the two-thirds requirements of all the states of the Federation during the Presidential election, so that failing to obtain at least one-quarter of the votes cast in the city doesn't constitute adverse effects?

In other words, in calculating the two-thirds requirements, if a candidate is able to obtain at least one-quarter of the votes cast at the FCT, FCT is automatically counted as a state in addition to the other states where the candidate has at least one-quarter votes. Meaning, failing to obtain at least one-quarter votes at FCT is simply a minus but of no adverse impact.

Therefore, the "and" does not make the FCT a separate huddle to be surmounted by the winning candidate. And it's not a compulsory question a candidate must answer correctly to get promoted. It's simply saying that the FCT is in the same category as a state for the purpose of the presidential election and calculation of results. What do you think?

UNRAVELING THE AMBIGUITY!

If a winning candidate MUST UNFAILINGLY obtain at least one-quarter of the votes cast at the FCT, in addition to the 25% requirement of the other states in the Federation, why would the drafters of the subsection qualify such a weighty requirement with the word "and" in subsection (B)? It simply doesn't make sense.

Would it have been more appropriate to add an independent or standalone provision under a different subsection (C), specifically stating that in addition to having at least two-thirds in all the states of the Federation, the winning candidate must obtain at least one-quarter of the votes cast at the FCT, Abuja?

If that was what the drafters intended (extra huddle), reasonably speaking and in line with modern drafting culture, they would have stated it explicitly in that language to avoid ambiguity.

Therefore, in the absence of such a language, succinctly articulating an extra electoral huddle, injecting it into subsection (B) by anyone to impugn the integrity of the court ahead of the judgment or decision is an unmitigated willful judicial adventure

Above all, it's inconceivable that a constitutional drafting committee will impose "a must win" state or territory on candidates in a volatile country like Nigeria, unless of course, such a committee is inviting bloodshed in the territory during the election. That explains why most constitutions resort to a percentage of all the states of a given Federation. It's the same drafting culture in the United States of America and in most democratic countries of the world. There is nothing like a must win state or territory in America, contrary to what some commentators are telling Nigerians on tv.

Anyway, as the issues stand now, only judges can invade the imaginary mind of the drafters of that subsection to unravel the legislative intent or what they had in mind when they drafted section 134 (2) (B). And the answer is a few weeks away.

ANALYSIS!

Given the unmistakable autocratic tone of Dr. Datti Baba Ahmad, I'm worried if he has any reckoning of the principle of separation of powers and checks and balances.

And of what relevance is the court system to him if the Supreme Court's interpretation of the contentious section MUST be consistent or in accord with his understanding of the section?

His vituperation is understandable; however, it is blatantly misplaced. He is openly and unequivocally daring the entire Nigerian court system - pass judgment in my favor, or else there will be war.

Calling on the military to intervene borders on absurd sophistry. Labeling it incendiary rhetoric is an understatement. Insurrection, he wrote. Unequivocally. Murder, he wrote. Vehemently.

Indeed, we are all outraged at the brutality of the institutional failure, and he has the right to demand total rejection of the election or call for a revolution in the absence of justice. But certainly not on the strength of section 134 (2) (B) of the 1999 constitution that's yet to be interpreted by the appropriate court. I do not believe waiting for the court pronouncements before reacting would be unreasonable in the circumstance.

The fact that his opinion is sub judice makes his inciting route more treacherous. "If judges no interpret am my way, trouble go burst and sojas must take over the government." Really? This is hard to fathom. Why did you go to the Tribunal to seek justice in the first case if you're only going to be bound by a favorable decision? On this, I stand with Professor Wole Soyinka.

INEC'S TRAGIC FLAWS!

There is no doubt that the entire process was irredeemably flawed. I was involved and was brutally impacted. As a Senatorial Candidate under the Accord party in Edo Central Senatorial District, my votes were not recorded because there were no agents on hand to sign the collation records on my behalf. I couldn't afford the estimated M10.5N required of me to compensate our party agents on the day of the senatorial election. My party refused to release the Agents' Badges because they couldn't guarantee the payment and didn't want to be indebted to anyone when the election is over.

Today, I have no records of my performance at the poll after exactly one year of sacrifices, hunger, and deprivation. I persevered, firmly convinced the journey was ordained to happen.

However, coming to the finish line, the umpires turned off the time clock. And the screen went blank. No records of my performance. I SHOULDN'T BE IN THAT POSITION, NO ONE SHOULD. NIGERIA FAILED ME. Now I can only say, yes indeed, I ran a race.

It is the responsibility of INEC to count the votes, record them, and upload them to their central system or server electronically and manually, irrespective of the presence or otherwise of a candidate's agent at the polling units. This time, the system not only failed me, but it failed every Nigerian at home and abroad.

INEC has the resources to execute a credible and flawless election, but like most governmental institutions in Nigeria, it was humbled by organizational lapses and deliberate sabotage.

I don't know the educational field of Mr. Datti Baba-Ahmed, but section 134 of the 1999 constitution is not the best approach to attacking the credibility of INEC or seeking redress for what happened on February 25, 2023. I would have rather he waited for the final decision of the court before embarking on his lines of attack. INEC failed us abysmally. This is more than whether a candidate obtains or didn't obtain winning votes at a specific location. It was a horrendous flaw.

MOVING FORWARD!

The struggle is more than Mr. Peter Obi or the OBI-Dient Movement. It's an acute systemic nationwide institutional decay. What is wrong with INEC is what is wrong with the CBN, NEPA, NNPC, the Nigeria Customs and Exercise, the Nigeria Population Commission, the Armed Forces, the Police Force, and the Ministry of Education. Until we decentralize Abuja and transfer most of the power it has under the Exclusive Legislative List to the States and Local Government Councils, we will never have a credible presidential election, credible population census, reliable internal security, an uninterrupted educational system, or a competent civil service.

If more than 60 years after independence, Nigerians are still clamoring "It's the turn of my tribe to produce the next President," we should be courageous enough to reject our sense of denial and accept the inevitable truth that indeed that the geographical expression called Nigeria is incapable of living its full potential under the present Unitary System. We don't and can never reason as one nation-state like Egypt and build the befitting nation we deserve.

Given the enormity of our natural resources and the ingenuity of our human capital, Nigeria ought to be at the same level as India, Turkey, Iran, or UAE by now technologically and infrastructure-wise. We are not because, even if we profess to be one nation of equal rights and justice, we lied. We are never governed as one country. Ask President Buhari, who turned a populist progressive mandate in 2015 into a tribal conquest fulfilled.

We have only one option left - Regionalism and Decentralization of Power in line with the 1963 constitution. Please, don't bank on a revolution. We are too ethnically conscious to successfully embark on a concerted showdown with the system. It won't materialize. Ask the organizers of the #EndSARS protests at Abuja what happened to them. They were not disrupted or attacked by Police or Soldiers, but by well-organized armed hoodlums whose reality is starkly at odds with the motivations and goals of the peaceful protesters.

THE END.

My name is Barr Alex Ehi Aidaghese. I ran a race without a finish line. Despite everything, I still believe in Nigeria. I am firmly confident that the birth of a Nigerian Dream, in the spirit, strength, and scope of the American Dream, will happen in my lifetime. I'm the author of this piece, and God is watching all over me. I consider this work purely an academic exercise on behalf of the Nigerian Bench that, under the circumstance, can not defend itself. I'm not hired by any individual or a political party to write this essay. Politically, I'm an Awoist, and still the one man-gang I've always been.

I stood for President Jonathan when he proscribed the Boko Haram sect. I shut the Punch newspaper down for three days following the publication of my opinion - 100 thumbs-up and 400+ positive responses, approving and supporting my position. In a similar fashion, I stood for President Buhari when he detained Col Dasuki without trial, because the Defense Funds that Col Dasuki recklessly dissipated to his party folks is enough to elicit the death penalty in some countries of the world. The essay was the number one read for more than three years at the website of the Nigeria Village Square, where it was published. Both essays served the intended purpose - the discussions, debates, and protests over the two decisions were nip in the bud instantly. That's just a splinter of the volume of my unacknowledged, gratuitous works in the act of influencing or molding public debates for public benefit in Nigeria. And that's, by the way.

What am I saying? I follow the dictate of my conscience in the pursuit of what is good for Nigeria. Not money, not power or privilege. Thank God, I'm already comfortable, privileged, and powerful.

God bless you, and God bless Nigeria.

HAPPY EASTER, FOLKS. LET'S ENDEAVOR TO LIVE CHRIST LIKE. JESUS CHRIST LIVES. AND HE LIVES IN ME.

Cheers

Barr Alex Ehi Aidaghese

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