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Constitutional conditions before a candidate can be declared winner of Nigeria’s presidential election

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Constitutional conditions before a candidate can be declared winner of Nigeria’s presidential election

By Teingo Inko-Tariah

As we approach the date set for the presidential elections, it is necessary for us to know what the constitution says about how a candidate can become the duly elected president of the Country.

I will reproduce the relevant provisions of the Constitution and attempt to explain the same in simple terms.

Section 134(2) of the 1999 CFRN provides as follows:

(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.

Explanation: Since there are more than two candidates in the elections (about 70, based on INEC’s count), this is the relevant section that applies to the 2019 election. The winner, according to the law, will be the candidate with the highest number of votes by simple majority and at least ¼ of votes cast in at least each of any 24 States in Nigeria, that is 2/3 majority

But what happens if nobody meets the above conditions? Here is what Section 134(3) prescribes:

(3) In default of a candidate duly elected in accordance with subsection (2) of this section, there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be –

(a) the candidate who scored the highest number of votes at any election held in accordance with the said subsection (2) of this section; and

(b) one among the remaining candidates who have a majority of votes in the highest number of States, so however that where there is more than one candidate with a majority of votes in the highest number of States, the candidate among them with the highest total of votes cast at the election shall be the second candidate for the election.

Explanation: If no winner emerges tomorrow based on an application of the provisions of s.134 (2), for instance, if the person with the highest number of votes does not get up to 25% of the votes in each of at least 24 states of the federation, then INEC shall conduct a second election. That second election will feature the candidate who has the highest number of votes and the candidate with the majority votes in the highest number of states.

But if we have a situation where more than one candidate has majority of votes in the highest number of states, for instance, two candidates won the majority in 14 states each, then the one who will participate in the second election shall be the person with the highest total number of votes among them.

All of that brings us to Section 134(4):

(4) In default of a candidate duly elected under the foregoing subsections, the Independent National Electoral Commission shall within seven days of the result of the election held under the said subsections, arrange for an election between the two candidates and a candidate at such election shall be deemed elected to the office of President if – (a) he has a 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.

Explanation: Within 7 days of the result of the main election, where there is no clear winner, INEC shall conduct the second election between the two candidates in line with s.134 (3). The winner of that second election must poll the highest number of votes by simple majority across the Nation and at least ¼ of votes cast in at least each of any 24 States in Nigeria, i.e. 2/3 majority principle.

But what if this condition is also not met? Section 134(5) prescribes the final solution:

(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall, within seven days of the result of the election held under the aforesaid subsection (4), arrange for another election between the two candidates to which the subsection relates and a candidate at such election shall be deemed to have been duly elected to the office of President, if he has a majority of the votes cast at the election.

Explanation: Where no winner emerges after the second election, INEC shall within 7 days from the date of the result of the second election arrange for another election (a third one) between the two candidates who took part in the second election and the Candidate with the highest number of votes by a simple majority shall be declared the duly elected President.

Phew! Let’s hope it doesn’t get to this on Saturday! Happy Election Day, Nigeria!

  • Follow this writer on Twitter: @iamtennygee

Teingo Inko-Tariah is the Managing Partner of Accord Legal Practice.

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