Can a candidate become president without 25% of votes in FCT? [Pulse Explainer]

As Nigerians look forward to the emergence of a new president following the February 25 presidential election, an aspect of the constitution that’s not quite clear has got them asking questions. 

From the results so far announced by the Independent National Electoral Commission (INEC), it is projected that the presidential candidate of the ruling All Progressives Congress (APC), Bola Tinubu, will secure the highest number of votes.

But according to the constitution, having a majority of votes is not enough for any presidential candidate to be declared a winner by INEC. 

Section 134 (2) of the constitution stipulates that a candidate is required to secure the majority of votes, as well as 25% of the votes cast in two-thirds of the 36 states AND the Federal Capital Territory (FCT).

These are the two grounds on which INEC can declare a presidential candidate a winner of an election, otherwise, the election would be declared inconclusive and a runoff would be conducted.

As things stand, Tinubu is clearly in the lead — having secured the highest number of votes announced at the National Collation Centre — but failed to secure 25% in the FCT. 

This has led to a social media argument where many opined that the APC candidate cannot be declared the winner of the 2023 presidential election because he didn’t get the 25% of votes in Nigeria’s capital.

On the other hand, those who disagree with this position argue that it is not mandatory for a presidential candidate to secure 25% in the FCT as long as the candidate can procure the required 25% in the minimum 24 states. 

A constitutional perspective to the argument explains that the FCT can be explained as one of the states in the country, and not a separate entity a presidential candidate must win or procure 25% from.

Section 299 provides that “The provisions of this Constitution shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation.”

This implies that the FCT can be regarded as the 37th state of the federation. 

This perspective aligns with the position of Femi Falana, a Senior Advocate of Nigeria (SAN). In his interview with Channels TV in January 2023, the lawyer submitted that the FCT can be treated as a state.

Falana said, “Today, the courts have ruled that pursuant to Section 299 of the constitution, that the FCT should be treated as a state. That is the law.

“You don’t have to win the FCT; if you meet the requirement; that is two-thirds of the majority of states in the country. You don’t have to win the FCT.”

Regardless of his failure to secure 25% in the FCT, if INEC decides to declare the candidate with the highest number of votes as the winner of an election, it means that, in its interpretation of the law, the electoral body sees the FCT as the 37th state of the federation. 

If this particular point is contested by other candidates, the Supreme Court will have to make a clear decision on what the provision means.