25% Votes: INEC Playing the Devil’s Advocate on FCT Abuja Status – Barrister Fred Oghenesivbe

The Independent National Electoral Commission, INEC, recently stated that it is not compulsory for the President-Elect, Bola Ahmed Tinubu, to garner 25% of votes cast in the Federal Capital Territory, FCT Abuja, on the ground that he polled 25% or above in 29 states, to clinch the highest number of votes cast.

In the same vein, INEC submitted that FCT Abuja is like any other State in Nigeria without special status, and that it is not mandatory for Tinubu and the All Progressives Congress, APC, to score 25% in FCT, a declaration that has generated multifaceted legal opinions.

In swift reaction to INEC’s claim, Barrister Fred Oghenesivbe, the Executive Assistant on Communications to Delta State Governor and Peoples Democratic party, PDP, Vice Presidential Candidate Dr. Okowa, has accused INEC of playing the devil’s advocate by deliberately and willfully misinterpreting relevant sections of the Constitution of the Federal Republic of Nigeria, 1999, as amended, more particularly the sections which referred to FCT Abuja special status.

He disclosed that the PDP, her Presidential Candidate, Vice Presidential Candidate, Atiku Abubakar, Dr. Ifeanyi Okowa and their legal team were correct in asking the Elections Petition Tribunal to order the withdrawal of the Certificate of Return issued to Bola Ahmed Tinubu and his Vice, for not meeting the 25% votes requirement in FCT Abuja, as stipulated in Section 134(2) of the Constitution.

According to Oghenesivbe, Section 301 of the Constitution of the Federal Republic of Nigeria, 1999, provides: “Without prejudice to the generality of the provisions of Section 299 of this Constitution in its application to the Federal Capital Territory, Abuja, this Constitution shall be construed as if – (a) references to the Governor, Deputy Governor and the Executive Council of a State (howsoever called) were references to the President, Vice President and the Executive Council of the Federation (howsoever called) respectively;”

He argued that the provisions of  Section 301 of the CFRN, 1999, is to the effect that the President and Vice President of Nigeria doubles as Governor and Deputy Governor of the FCT Abuja, while the Federal Executive Council plays the role of  FCT Executive Council.

Oghenesivbe noted that the direct and unambiguous meaning of Section 134 (b) of the Constitution expressly confirmed that for a presidential candidate to be declared President-Elect, he or she must have the highest number of votes cast at the election, he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all states in the Federation AND the Federal Capital Territory, FCT Abuja.

Flowing from the above, Oghenesivbe who is also a Solicitor and Advocate of the Supreme Court of Nigeria, argued that for the fact that the President-Elect will automatically become the Governor of the FCT, “he MUST garner 25% of votes cast in FCT, Pointing to show that he’s both President-Elect of Nigeria and Governor-Elect of the FCT Abuja, while the Vice President-Elect doubles as Deputy Governor-Elect of FCT Abuja, respectively, going by the plain and unambiguous expression of Section 301 of the CFRN, 1999.”

He further maintained that FCT Abuja is not expressly one of the states in Nigeria, but must be accorded recognition as if it were a state in Nigeria, noting that Section 3 (1) of the constitution listed 36 states of the federation but FCT Abuja was never listed as one of them…

“Meaning that FCT Abuja enjoys a special status which is why the President and Vice President doubles as Governor and Deputy Governor, while the National Assembly makes Law for the FCT, whereas these special characteristics are not applicable to the 36 states of the federation listed in Section 3(1) of the constitution of Nigeria, 1999, as amended.

“It’s laughable for INEC to declare that FCT Abuja does not enjoy special status. It does, judging from the provisions of Section 297, 298 and 299 of the constitution, and further consolidated by section 130 (which excluded FCT as one of the states of the federation) and 134 (2) which made it COMPULSORY for presidential candidate to score 25% votes in addition to at least 24 states or more before he can be declared President-Elect in Nigeria, respectively.

“Even if a presidential candidate score 25% and above in 29 or 30 states, it is MANDATORY for him or her to score 25% in FCT Abuja, because of the dual capacity as President of Nigeria and Governor of the FCT.

“If INEC waves the 25% in FCT as in the instant case, conducting presidential election in FCT becomes irrelevant. The questions is why should FCT residents vote when they have no say in who becomes their Governor or President? And that’s exactly what INEC stated in their frivolous defence of illegality.

“Section 134 is expressly clean and direct to the point. It stated that the total votes cast in at least two-thirds of all the states of the federation, meaning it can be above two-thirds as in the instant case of Tinubu’s win in 29 states, but the 29 states AND or PLUS the FCT 25% voted, period.

“Let’s look at it this way. If Governor of Delta State request to see two-thirds of his political appointees AND Olorogun Barr Fred Latimore Oghenesivbe, JP, it connotes that the governor needed to see two-thirds of his political appointees plus Olorogun Barr Fred Latimore Oghenesivbe, JP.

“In this scenario, Oghenesivbe must be present together with the 2/3 of the appointees. This is exactly the intendment of the framers of the constitution in Section 134(2) that before a presidential candidate can be declared President-Elect he must score 25% votes in not less than 24 states or more plus another 25 votes in FCT Abuja.

“It is settled Law in Ogunyade v. Oshienkeye & Anor (2007) LPELR-2355(SC) where the Supreme Court held that; “In grammar or syntax, a sentence does not end with the word “and.”  It is a conjunction ….connecting word of phrases …signifying that something is to follow in addition to that which precedes…,” meaning Tinubu’s 29 states win in addition to 25% votes in FCT. See also the Black’s Law Dictionary, Sixth Edition at page 86.

“I humbly summit that INEC goofed in declaring Bola Ahmed Tinubu as President-Elect without the COMPULSORY 25% votes in FCT Abuja, where he doubles as Governor-Elect. He can’t be Governor-Elect of FCT without scoring 25% votes as stated in Section 134(2)(b).

“The Election Petitions Tribunal and/or the Courts above shall do justice in this matter, so as to preserve our constitution and Nigeria’s fragile democracy,” Oghenesivbe assured.

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