Constitutional Conundrum: In-depth Decoding The Enigma Of The Word ‘and’ In Section 134(2)(B) Of Nigeria’s 1999 Constitution
By: Hon. Prince Ankot A. Cobham Esq.
Following barrage of views, questions and submissions that has evolved from the interpretation of the word ‘AND’ as found in section 134 (2) (b) of the Constitution of the Federal Republic of Nigeria and the brain hassle clouded with heightened debates over it interpretation or the intention of the Legislature in respect of this three letter word as used in the letters of the law. Some have contended that the Constitution intends that having
a.) majority of votes cast,
b.) one-quarter of the votes cast in 24 States of Federation and
c.) one-quarter of the votes cast in the Federal Capital Territory, Abuja supposed to be a sine qua non for any Presidential Candidate to be declared a winner or duly elected. While others are of the view that a Candidate does not need to have majority of votes cast in the Federation and one-quarter of the votes cast in the Federal Capital Territory inclusive to be declared a winner if the said Candidate already had one-quarter of the votes cast in two-thirds (24) or more than 24 of the 36 States of the Federation.
With respect to several eminent and erudite commentators and without being immodest, it is my view that no matter how rum, exhilarating, welcoming, wonderful, educative and morally right these barrage of views should be as it is inextricably linked with the wishes and desires of the Nigerian people for an effective, effectual, judicial and judicious interpretation of the said section by the Election Tribunal who are seen by Nigerians as the last hope in determination of who truly won the February 23rd, 2023 presidential election and to govern them for the period of 2023 to 2027.
I wish to state that it is advisable when we read an Act of Parliament, the first and fundamental point of note is that, it is not like reading a novel, textbook or a newspaper. Legislative text must be read according to the principles and rules as decided upon by the Judges and the statute itself. Special skills are required to understand the intention and the actual meaning of the letters of the law.
I therefore humbly join the legal ring to posit my views or candid opinion as it borders on this biting three letter word ‘AND’ in section 134 (2) (b) of 1999 Constitution (as amended) which provides thus:
Section 134 (2)
“A candidate for an election to the office of President shall be deemed to have been DULY elected, where, more than two candidates for the election-“
(a) “he has the majority of votes cast at the election; AND”
(b) “he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation AND the Federal Capital Territory, Abuja”.
It is my hope, this elaborate submission on the subject matter will elucidate, provide a better understanding and serve as a guide of how the legal world can approach this current troubling legal epidemic ‘AND’.
Before we settle into the legal arena about the subject matter, let’s firstly consider the plain (dictionary) meaning of the word ‘AND’, its usage and some synonyms.
Advanced Learner’s Dictionary defines the word ‘AND’ as a “word used to connect words or connect parts of sentences (not to disconnect), connecting two things or people” and gives examples of it usage as follows, “bread and butter; a table, two chairs and a desk; do it slowly and carefully; a knife and a fork; my father and mother” and I add LP, APC and PDP are in the election tribunal meaning instead of writing (a) LP is in the tribunal, (b) APC is in the tribunal, (c) PDP is in the tribunal, but the three distinct parties in the tribunal are joined together with the word ‘AND’.
SYNONYMS of ‘AND’ are: also, including, furthermore, moreso, along with, in addition, together with, as well as…” all of the above having the same meaning and purpose.
The word ‘AND’ therefore signifies conjunction and not disjunction, it connects and doesn’t disconnect.
It is a logical operator that requires both of two inputs to be present or two inseparable conditions to be met for an output to be MADE or for a STATEMENT OF the LAW to be EXECUTED.
Now, using legal lenses on the subject matter, statutes contain definitions of certain words and expressions used in an Act. The definition gives the interpretation of certain words or expressions, they may contain or exclude something, may be of a restrictive, extensive, ordinary or special nature. But, it is a legal practice where a word or phrase has been defined prima facie in one provision, that definition governs that word throughout the body of an Act, unless expressly excluded elsewhere with another interpretation because it is an old-hat that “the express mention of one thing is to the exclusion of another”.
What this means is that wherever the word ‘AND’ is found in the constitution and the intention of the Legislature has been defined in a particular provision or anywhere in the entire body of the law, it should be construed to mean the same, unless it is expressly excluded elsewhere to mean another thing.
This is to the effect that, the purpose of definitions is to avoid frequent repetition in the description of the object to which the word or phrase thus defined is referred to except it is expressly stated elsewhere with another meaning. We should not forget interpretation of law itself majored on precedents.
Hence, having painstakingly gone through over 50 sections of our Constitution from it genesis to revelation where the word ‘AND’ appeared and the appearance of two ‘AND’ itself in the said section 135 (2) (a) and (b), It is my earnest submission that the intention of our lawmakers was for the word ‘AND’ to connote conjunction and not disjunction, connection and not disconnection, to stand for two or more entangled conditions to be met for any provisions that involves its usage to be deemed duly executed or valid.
This is because a definition should not be read in isolation, it should be read in the context of its usage. If the definition itself is ambiguous, it must be interpreted in light of other provisions of the Act.
The legal implications of the above for an example is that the interpretation of the word ‘AND’ in Section 134 (2) (a) and other sections of the Constitution by lawyers or judges should also be applicable to the word ‘AND’ in Section 134 (2) (b) simpliciter, as will be seen in further explanation.
CONSIDERATION OF THE DISPUTED SECTION 134 (2) (B) IN THE LIGHT OF STATUTORY INTERPRETATION.
Statutory Interpretation:
One of the most substantial and the principal duties which are vested in the judiciary is the interpretation of the statutes.
Statutory interpretation is the process by which a court looks at a statute and determines what it means. We can also put it to be a process by which a judge decides what the words in a statute mean or the intention of the draftsmen to apply them to the facts in the matter in order to arrive at justice, nothing more or less but absolute justice. And in doing this, they strictly abide by the boundaries framed by the legal frameworks which encompasses certain laws, statutes, the Constitution and delegated legislations and history of the said law.
TWO ASPECT OF INTENTION OF LEGISLATURE
The intention of the legislature is essentially constructed of two aspects:
1) The concept of meaning and
2) The concept of purpose or intention and object.
The first connotes an understanding derived from the literal meaning of the words of a statute. The second points to the spirit and reason pervading through the statute. Lawyers and Courts have to keep these aspects in mind while reading a statute; and are aided in this task by certain sources of legislative intent. These popularly include:
- The text of the statute as proposed to the legislature.
- Proposed amendments to the statute, whether accepted or rejected, with reasons thereof.
- The record of hearings on the topic.
- Other relevant statutes that can be used to understand the definitions in the statute on question
- Relevant statutes which indicate the limits of the statute in question; such as previous statutes on the same matter. In this case, section 126 (2)(b) of the 1979 Constitution should be in focus.
- Legislative intent, which is the reason for passing the law etc etc.
For the purpose of interpreting statutes and to prevent any wrongful interpretation of the laws, the court follows certain rules to shape these laws. And the three basic rules of interpretation of statutes are the Literal, Golden and Mischief rule as shall be considered accordingly.
LITERAL RULE:
It is a rule where the courts are expected to interpret the wordings of the law as plain as it is. GW Paton, elucidating the literal rule said:
“Whatever the result, if the meaning of the wordings of law is plain then they should be applied”.
Meaning using the literal rule of interpretation, the word ‘AND’ in Section 134 (2) (b) should be interpreted to mean ‘And’, also as a conjunction and not disjunction. Hence, whatever the result, it should be applied.
In that, this is because it is believed that the ordinary meanings of words contain the true intention of the legislature. This view was supported by Tridal, C.J. in the Sussex Peerage Case. It is stated that the mere inconvenience of words when applied in their ordinary (plain) sense is not enough reason to depart from the ordinary meanings of the words. This view was also shown in the case of ADEGBENRO V. AKINTOLA.
Applying the literally rule therefore means for a presidential candidate to be declared duly elected, the interpretation of the word ‘AND’ no matter its consequences or inconveniences must stand for three (3) inseparable conditions to be met as follows:
a.) scoring majority of votes cast, AND
b.) scoring one-quarter of the votes cast in 24 States of Federation AND
c.) scoring one-quarter of the votes cast in the Federal Capital Territory, Abuja.
Golden Rule:
The golden rule of interpretation is a modification of the literal rule. Where the literal rule lays emphasis on the literal (plain) meaning of the words used in legal language, the golden rule interprets the words in such a way that the absurdities and anomalies of literal interpretation are avoided. The golden rule modifies the language as well as the grammar of the words used in statutes and other documents of interpretation, thus providing the actual meaning of the words. The golden rule says, unless there is any ambiguity or absurdity in the wordings of the law, the ordinary sense of the law should be resorted to hence it is rarely used by the court.
Golden rule can be used in a narrow and wider sense.
As stated earlier, Golden rule are to be applied in situations where the literal rule might cause absurdity, however, a Judge applying it is expected to look to whether a word or term or phrase is used elsewhere in the STATUTE in a way
that sheds additional light on a disputed PROVISION. I hereby submit based on the above valid assertion that the word ‘AND’ and the entire wordings of the law in section 134 (2) (a) sheds additional light on the word ‘AND’ in section 134 (2) (b) and is expected to be applied respectively and accordingly. I am saying this to say, if the interpretation of ‘AND’ in section 134 (2)(a) is to conjunct or connect subsection 2 (a) and (b) as two inseparable conditions (considering the word shall in the provision which connotes mandatory) to be made by a candidate before he is deemed to be duly elected, same should also be applicable to the ‘AND’ in sub section 2(b) as two inseparable conditions to be made. Meaning the candidate has to score 25% in 24 States of the Federation and also score 25% in FCT, ABUJA to be deemed duly elected.
This is to the effect that, in Golden rule usage also, a lawyer or a judge might also ask whether Legislature used
different language with the same word elsewhere in a meaningful way
If you will ask me whether Legislature used the word ‘AND’ in a meaningful way, my answer will absolutely be yes as we consider some few sections of the Constitution with the usage of the word ‘AND’ like section 1, 2, 3, 4, 133 (2) (a), 134 (2) (b) etc. and what they stand for:
Section 1(1):
“This Constitution is supreme ‘AND’ its provisions shall have binding force on all authorities ‘AND’ persons throughout the Federal Republic of Nigeria”.
The two AND above conjunct the constitution and its provisions; authorities and persons respectively.
Section 2:
“Nigeria is one indivisible AND indissoluble sovereign state to be known…” (meaning Nigeria is IMPOSSIBLE of undergoing DIVISION AND INCAPABLE of being DISSOLVED. Two issues,it cannot be divided and dissolved).
Section 4(1):
“The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate AND a House of Representatives”.
It is undebatable that the elementary meaning of the AND above connotes; for the National Assembly to be deemed duly National Assembly for the Federation, it has to be a bicameral Assembly, not one House but two.
Now let also consider the perturbing Section 134 (2) but not just the (b) part of it which is in contention but also (a) which also has the word ‘AND’ that will aid shed more light on (b):
Section 134(2)
“A candidate for an election to the office of President shall be deemed to have been DULY elected, where, more than two candidates for the election-“
(a) “he has the majority of votes cast at the election; AND
(b) “he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation AND the Federal Capital Territory, Abuja“
On the foregoing, if we want to apply the golden rule in it narrow meaning, it is once again my immodest strong conviction that if the AND in 134 (2) (a) above conjunct and connect subsection 2(b) to be two (2) inseparable conditions (that is scoring (a) highest votes AND also (b) scoring not less than one-quarter of the votes in each of at least two-thirds…) are to be made before a candidate for the position of the president in an election that involves 2 or more candidates is deemed to be DULY ELECTED.
Then, with an elementary knowledge, it means the troublesome ‘AND’ in Section 134 (2) (b) also means scoring 25% in 24 States of the Federation AND 25% in FCT, Abuja. There are two (2) inextricable conditions to be made in addition to one (1) in (a) making it three(3) inseparable conditions. And a candidate is not expected to meet only one (1) in (b) and leave the other one to be deemed duly elected.
By reason of, it is a settled principle of law and an important requirement, that where a statute prescribes that an act MUST be done in a particular way, that act can only be said to be validly done when it is done in the PRESCRIBED MANNER. see SANUSI V. AYOOLA & ORS (1992) LPELR-3009(SC).
In LEE V. KNAPP (1967) interpretation of the word ‘stop’ was involved. Under section 77(1) of the road traffic Act, 1960 and its provided that “a driver causing an accident shall STOP after the accident.” In this case, the driver stopped for a moment after causing an accident and then moved away. Applying the golden rule the Court held that the requirement of the section had not been followed by the driver as he had not stopped for a reasonable time of period. Requiring interested persons to make necessary inquiries for him about the accident. This was to correct the absurdity of merely interpreting the word ‘STOP’ to mean stop by the court.
It is therefore my candid opinion that applying the wider sense of the interpretation of the word ‘AND’ FCT, ABUJA as used in the section, the drafters of the law intent was for the president to be deemed duly elected after meeting the required majority votes condition, 25% in 24 States condition, also condition of scoring at least a reasonable acceptable votes of 25% in FCT, Abuja, a place expected to housed him or her for 4 to 8 years outside his or her place of origin or political home. This was to correct the absurdity that was lacking in the 1979 and unused 1989 Constitution which did not capture the phrase “and FCT, Abuja”.
Mischief Rule:
It is a certain rule that lawyers and judges can apply in statutory interpretation in order to discover the Legislature’s intention. The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent. And the said Legislative intent is determined by examining secondary sources, such as committee reports, law review articles and corresponding statutes and history of the law as earlier postulated.
Under this rule it is the general policy or intention, reason or purpose of the statute that must be considered and the mischief the drafters of the law intended to correct or eliminate.
In applying the rule, the court is essentially asking what the mischief was that the previous law did not cover, which Parliament was seeking to remedy when it passed the law now to be interpreted by the court.
On this account, it is imperative and reasonable then to look at the mischief the modification intended to correct in one of the previous laws which was section 126 (2) (b) of the 1979 Constitution which provides thus:
“he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation”
On the above, why did the draftsmen not copied and pasted the section above in section 132 (2) (b) of the 1999 Constitution the same way in section 164 (7)(b) from the same 1979 Constitution, or the exact way in respect to the governorship election winner they copied and pasted section 164 (7) (a) & (b) of the 1979 Constitution in section 179 (2) (a) and (b) of the 1999 Constitution but reviewed it to add “AND FCT, ABUJA”. Arising from the above, it is my strong contention that their intention was well deposited, intelligible, known, not blurred and should be respected rather than the system be clouded with unnecessary political sentiments and sublime emotion. If truly Legislative intent as earlier stated, is also determined by examining secondary sources like the 1979 Constitution or other corresponding statutes.
That the mischief rule can produce different outcomes than those that would result if the literal rule were applied is illustrated by Smith v Hughes [1960] 2 All E.R. 859. Under the Street Offences Act 1959, it was a crime for prostitutes to “loiter or solicit in the street for the purposes of prostitution”. The defendants were calling to men in the street from balconies and tapping on windows. They argued that as they were not themselves “in the street” they fell outside the definition. The judge held that as the intention of the act was to cover the mischief of harassment from prostitutes, the quoted wording did apply, and the defendants were found guilty.
On this note, it my uncompromised view that, a mere fact the phrase ‘AND’ FCT, ABUJA was added, the intention of the reviewed section was to cover the mischief of unacceptability harassment of an elected president in Abuja being the seat of government hence making FCT, ABUJA a unique, special, outstanding Constituency in determination of the Presidential Election winner. Maybe to eliminate the mischief of once in our political history where members of the NPC, the party that controlled the majority of the Federal Parliament were booed in Lagos in 1953 for their position, almost leading to the first secessionist declaration. It was possible because the party had zero presence at the then Federal Capital Territory and seat of power.
Some commentators have argued, why clothed Abuja with such a special status. And, my simple answer is, if all states or cities can’t be or be treated as the Nation’s capital…, therefore comes the uniqueness and peculiarity of FCT, ABUJA under the subject matter.
Let us therefore look into the purpose of the following letters of the law under the discuss:
- scoring highest number of votes cast in the election
- scoring ¼ (25%) in ⅔ (24) States of the Federation AND
- ¼ (25%) of votes cast in FCT.
- It is abundantly clear that the intention of the draftsmen in (a) above i.e “scoring highest number of votes cast” is to enable the electoral umpire determine without stress emergence of a winner in the election with simple majority. Hence, if it is 100 against 99, the candidate with 100 will be deemed to score the majority of votes cast.
- Mathematically, scoring ¼ means out of 100 votes, a candidate must only score 25 of it which is even a poor pass; however, the poor pass must not be in either ⅓ or ½ of the States of the Federation but in ⅔ of the Federation in addition to the highest majority of votes. It is my view that the drafters’ purpose was to checkmate the mischief of total unacceptability and illegitimacy of the elected president in the States of the Federation. Then, the powerful AND; FCT, Abuja.
- Importance of scoring ¼ (25%) of votes cast in FCT (ABUJA):
The coming into existence of Abuja began in 1975 with the setting up of the Akinola Aguda Committee by the then Head of State, General Murtala Mohammed in search of a new capital for Nigeria and in 1976, Abuja was announced and came in existence as the new Federal Capital Territory in 1991 as recommended by the Committee following a good number of reasons that informed the choice of Abuja which include “its centrality of location, ethno-religious neutrality, availability of enough land for expansion and non-ancestral dominance of the area by any of the nation’s major ethnic groups. Since then, Abuja began to harbor Nigerians from all walks of life, religion, people from different wombs etc therefore making it a peculiar and an important City in the Federation.
It is my submission that the drafters of the 1999 Constitution having witnessed these chose to depart from the wordings of section 126(2) (a) and (b) of 1979 even when Abuja was announced as the FCT in 1976 but the phrase was not captured in the 1979 Constitution. However, it was clothed with a special status when it has to do with Presidential Election in section 134(2)(b) of the 1999 Constitution to enhance not 100% or 75% nor 50% acceptability but just 25% acceptableness by the voters in Abuja who are people of different tribes, ethnicity, religious background etc.
On the foregoing, applying Mischief rule as it affects the word ‘AND’ under this prevailing circumstance from the river of knowledge as elucidated in the case above and comparison of the provisions of section 126 (2) (b) of the 1979 Constitution, 3 years after Abuja was announced as Federal Capital Territory and section 134 (2) (b) of the 1999 Constitution, 9yrs after Abuja became FCT on this same subject matter as provided below:
1979 Constitution, section 126 (2)(b)
“he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation”
1999 Constitution, section 134 (2)(b)
“he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation AND the Federal Capital Territory, Abuja”.
It is my unbiased advice that from the current scenario, unlike section 126(2) of the 1979 Constitution which ended with ¼ of votes cast in 2/3 of the States of the Federation, it is instructive for our interpreters to carefully look and strive to know why the drafters of the 1999 Constitution had to repealed the said section in 1979 Constitution and added another phrase, “AND the FCT, Abuja” and not with “OR FCT, Abuja”. As it is my humble asseveration that there was a Mischief observed by the drafters in section 126 (2)(b) of the 1979 Constitution in the status of Abuja, its importance and peculiarity in Presidential Election being the seat of government where for instance, a minority from the a smallest State like Bayelsa can occupy as a President, such a candidate must have at least a poor pass (25% of the votes cast) acceptability in such a place to be deemed duly elected. Hence, they intended to correct it by using the word ‘AND’ to conjunct and connect with what was already in existence in the 1979 Constitution and the unused Babangida 1989 Constitution, instead of creating another subsection (2)(c) maybe for the purpose of saving time and space to read:
- “he has not less than one-quarter of the votes cast at the election in the Federal Capital Territory, Abuja”.
COMPARABILITY OF SECTION SECTION 134(2)(A) &(B) (PRESIDENTIAL) AND 179(2) (A) & (B) (GOVERNORSHIP). (FCT & STATE CAPITAL) OF 1999 CONSTITUTION.
It is also my view that, if our legislature were confused they would have prescribes similarly wordings that for a Governorship Candidate in a State to be declared a winner or duly elected in an election he must inter alia have one-quarter of votes cast in at least two-thirds of the Local Government Areas of the State AND the State Capital. If the ‘AND’ in section 134 (2) (b) was not intended to be interpreted to mean that for a Presidential Candidate to be declared winner in an election he must have one-quarter of the votes cast in the Federal Capital Territory, Abuja or makes Abuja one among the equals, then a similar provision would have been made in respect of State Capitals too. The drafters of the said section would have put it the same way in section 179 (2) (a) and (b) in respect to Governorship election as provided thus:
Section 179 (2) (a) and (b)
“A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates –
(a) he has the highest number of votes cast at the election; AND
(b) he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State.”
Why ‘and’ the State Capital not added makes legislature intention about the peculiarity of FCT to be known, simple and undebatable.
From this provision, it is clear that for the purpose of the Presidential election, the Independent Electoral Commission would only regard and treat the Federal Capital Territory as the “37th State” of the Federation. Therefore requiring a candidate to score at least 25% votes cast in 24 States of the Federation and FCT, Abuja making it 25 election States before being declared a winner and deemed duly elected.
COURTS DON’T REWRITE THE LAW
“A verbis Legis non Est Recedendum” (you must not vary the words of a Statute).
Extreme care is usually taken by lawmakers in the drafting of law in order to structure their words to cover as many loopholes as possible and be void of ambiguity. It is therefore also advisable for extreme care to be taken by the judiciary in interpretation of the law void of sentiments and bitterness. We know words often have multiple meanings and people would always try to interpret words in ways which best suit their purposes. It is the function of the judiciary to determine the true intention of the lawmakers from the words used. If the lawyers and the courts believes in the two aspect of Intention of the legislature as earlier stated as:
1) The concept of meaning and
2) The concept of purpose and object.
The courts have to keep these aspects in mind while dealing with the word ‘AND’; and will be aided in this task by going through certain sources of legislative intent such as relevant statutes which indicate the limits of the statute in question; such as previous statutes on the SAME MATTER like section 126 (2)(b) of the 1979 Constitution. This is why no random person can interpret the laws except lawyers and the court; however, this privilege granted to the courts to interpret laws does not give the courts the authority to rewrite the laws or attach sentiments in its interpretation.
If the language of the Statute is clear, unambiguous, and ordinary then its meaning should not be varied but interpreted accordingly.
CONCLUSION
To this end, applying the 3 major canons of interpretation of statutes as elaborately explained de novo in this prevailing circumstance, it is my earnest desire that the Court will not go in the path that will vote down the provision of a law whose meaning and intention of the draftsmen are, prima facie, reasonably plain and lucid, it will be preferable to interpret them through their natural, ordinary meaning and purpose.
On this note, it is my hold out opinion until our court says contrary, that the intention of our draftsmen in respect to the word ‘AND’ in section 134 (2) (a) and (b) of the 1999 Constitution was to mean;
For a presidential candidate to be deemed duly elected in an election contested by two or more candidates he must score:
- highest number of votes cast in the said election
- ¼ (25%) in ⅔ (24) States of the Federation AND
- ¼ (25%) of votes cast in FCT, Abuja.
There are three (3) distinct compelling, deliberate and mandatory conditions for a presidential candidate to emerge as President or deemed duly elected. Hence, the legal world should therefore strive to interpret the said statutes to materialize the intention of the Legislature. Technicality and Illogical interpretation that may cause injustice should be strived to be prevented and avoided. This is because the world will not come to an end if the mallet of the law falls on anyone who fails to meet this mandatory and important constitutional requirement.
Nigeria, no man is above the law! So said “Section 1(1) of the 1999 Constitution”.
