Daily Justice

Lagos, Nigeria – Yusuf Datti Baba-Ahmed, the former vice-presidential candidate of the Labour Party, has publicly opposed the inauguration of President Bola Tinubu and Vice-President Kashim Shettima, arguing that their candidacy failed to meet constitutional requirements.

Speaking on Arise News’ Prime Time programme, Baba-Ahmed asserted that the Tinubu-Shettima ticket did not satisfy the legal stipulations necessary to assume office, though he did not specify the exact constitutional provisions in question. Despite his objections, the swearing-in proceeded as planned.
Baba-Ahmed’s remarks have reignited debates about the legitimacy of the 2023 presidential election, particularly concerning the constitutional requirements for a candidate to be declared president.

While he did not explicitly mention the Federal Capital Territory (FCT) vote requirement, an analysis of the election results reveals a significant point of contention: Tinubu’s failure to secure 25% of the votes cast in the FCT, a threshold some argue is mandatory under the Nigerian Constitution.

Section 134(2) of the 1999 Constitution of Nigeria (as amended) stipulates that a presidential candidate must secure the highest number of votes nationwide and at least 25% of the votes cast in at least two-thirds of the 36 states (24 states) and the FCT to be declared elected in the first round. The inclusion of the FCT in this provision has sparked legal and political debate, particularly in the context of the 2023 election, where Tinubu, the candidate of the All Progressives Congress (APC), did not achieve 25% of the votes in the FCT. The Labour Party’s Peter Obi won the FCT, garnering a significant share of the votes, while Tinubu and the People’s Democratic Party’s Atiku Abubakar fell short of the 25% threshold in the capital.

This has led to differing interpretations of the constitutional requirement. Some legal scholars and commentators, referencing Section 299 of the Constitution, argue that the FCT should be treated as equivalent to a state, meaning a candidate needs 25% in 24 of the 37 entities (36 states plus the FCT). Under this view, failing to secure 25% in the FCT would not necessarily disqualify a candidate who meets the requirement in at least 24 states. Prominent lawyer Femi Falana has supported this interpretation, stating that the FCT is effectively the 37th state for electoral purposes, and securing 25% in 25 states, regardless of the FCT, could suffice.

However, others contend that the specific mention of “and the Federal Capital Territory” in Section 134(2) implies a distinct requirement, suggesting that 25% in the FCT is mandatory, given its status as the nation’s capital and a symbol of national unity. This perspective is bolstered by the argument that the framers of the Constitution intended for the FCT to reflect a broad geographical and cultural acceptance of the winning candidate. A 2005 ruling by Justice Mohammed Lawal, cited in public discourse, is often referenced to support the view that 25% in the FCT is as essential as securing the highest national vote count, though this interpretation remains contested.

The Independent National Electoral Commission (INEC) declared Tinubu the winner, indicating that it did not consider the FCT’s 25% threshold a mandatory standalone requirement. Tinubu secured the highest number of votes nationwide (36.61%, approximately 8.8 million votes) and met the 25% threshold in at least 24 states, but his shortfall in the FCT has been a focal point for critics like Baba-Ahmed, who question the constitutional validity of his presidency.

The issue has spurred legal challenges, with opposition candidates, including Obi and Abubakar, filing petitions to contest Tinubu’s victory. These cases highlight the ambiguity in the Constitution’s language, particularly the use of “and” in Section 134(2), which some argue could be interpreted as “or” to avoid impractical outcomes, as noted in the case of NDOMA-EGBA v. CHUKWUOGOR (2004). Until resolved by the courts, the debate over the FCT’s electoral weight continues to cast a shadow over the 2023 election’s legitimacy.

Baba-Ahmed’s comments, while not directly addressing the FCT vote issue, align with broader concerns about electoral integrity and constitutional adherence. His appearance on Arise News has amplified public discourse, with social media posts reflecting strong sentiments that Tinubu’s inauguration was a “desecration” of the Constitution due to the FCT vote shortfall. These sentiments underscore the polarised nature of Nigeria’s political landscape.
The Labour Party has yet to issue an official response to Baba-Ahmed’s remarks, and the presidency has remained silent on the matter. As Nigeria grapples with economic challenges and security issues, the controversy surrounding the 2023 election continues to fuel tensions, with the judiciary likely to play a pivotal role in clarifying the constitutional requirements for future elections.