If the federal capital territory (FCT) is NOT the 37th State of the Federation, would be like a Compulsory Question in an Examination that Must be attempted and be passed!
There are many Schools of Thought in Jurisprudence, the Science of Law!
These Schools of Thought in Jurisprudence are:
1. The Natural Law School of Thought,
2. The Positive Law School of Thought,
3. The Sociological Law School of Thought,
4. The Historical Law School of Thought,
5. The Feminist School of Thought,
6. The Marxist School of Thought, and
7. The Legal Realism School of Thought.
For the current issue at stake in Nigeria, the interpretation of the relevant sections of the Constitution, the Legal Realism School of Thought is most appropriate and most applicable.
The Legal Realism School of Thought simply maintains that a law is only a law when it is duly interpreted by the court, and in our situation, the Supreme Court of Nigeria.
In its extremity, the School claims that any law not yet tested in the court should not be regarded as a valid law. An American jurist named Llwendollyn Holmes, is the chief proponent of Legal Realism School of Thought.
The relevant sections of the Principal Law, the 1999 Constitution of the Federal Republic of Nigeria as amended, are Sections 134 and 299.
S.134 deals with the 25% of the total votes cast in at least 2/3 of the States in the Federation AND the Federal Capital Territory, FCT.
The use of the word “AND” suggests something additional to be complied with!
S.299 deals with the status of the FCT whereby the Constitution shall apply to the FCT as if it is one of the States of the Federation.
With reference to the Legal Realism School of Thought, only the Court can validly interpret the full and joint impacts of Sections 134 and 299 of the 1999 Constitution.
The Court, most especially the Supreme Court, under Section 6 of the 1999 Constitution has the principal duties of interpretation of the Law and adjudication in cases of disputes.
The Supreme Court will have to decide whether the FCT has actually been treated as a State or it has not been so treated.
There are instances to show that FCT has not been treated as a State!
For instance, the FCT has no Ministerial slot in compliance with the same Constitution that says every State would have a Ministerial slot.
The FCT Minister attends the Federal Executive Council meetings where none of the 36 state Governors attends.
Again the FCT has no Governor as in other 36 states.
The Governorship and the State Assembly elections of 18th March 2023 did not take place at the FCT!
Based on the above four important observations, the FCT can not be said to have been treated as a State!
However, there are some instances where the FCT had been treated as if it is a state!
Such instances include the attendance of the National Economic Council meeting and the National Council of States meeting by the Minister of the FCT representing the Territory and he/she attends such meetings in company of the 36 state Governors.
Depending on the preponderance of the evidence and observations such as listed above, and depending on the weight allocated to these evidence and observations, the Supreme Court would come out with an interpretation that the FCT is the 37th State of the Federation OR that the FCT would remain a Special Territory and NOT the 37th State.
In respect of the the fulfillment of S.134 of the 1999 Constitution, if the FCT is interpreted to be the 37th State, then a Presidential Candidate can only be validly and lawfully declared as the President-Elect if he has the 25%of the votes casts in at least 24 and 2/3 States of the Federation; and in the 25th state, he or she will only require to have 17%, ( i.e. 25% of 2/3) and not 25% of the total votes cast in the FCT!
This is the settled legal mathematics, drawing from the 1979 ingenious submission of Chief Richard Akinjide, SAN of blessed memory!
If however the Supreme Court decides that the FCT is not the 37th state but must be treated as a Special Territory, then a Presidential Candidate can only be validly and lawfully declared as President-Elect, if and only if he/she has at least 25% of the votes cast in 24 states, AND IN ADDITION, at least another 25% of the votes cast in the FCT.
Where a candidate is in default of S.134 of the 1999 Constitution, there will be run off elections between the two candidates with highest number of votes cast.
In application of all of the above legal analyses to our present National Situation, the following are my submissions as a baby Constitutional lawyer:
1. The INEC declaration of Asiwaju Bola Ahmed Tinubu as the President-Elect is on the assumption that the FCT is the 37th State of the Federation.
2. If eventually the Supreme Court interprets Sections 134 and 299 of the 1999 Constitution to conclude that the FCT is not the 37th State of the Federation but a Special Territory, then the INEC declaration of Asiwaju BAT as the President-Elect would be invalid in which case a run-off election between Asiwaju BAT and Atiku Abubakar would have to be arranged.
In conclusion, the Supreme Court has important role to play in the joint and composite interpretation of S.134 and S.299 of the 1999 Constitution of the Federal Republic of Nigeria.
A law is only law, when it is interpreted by the Court, this is the position of the Legal Realism School of Thought in Jurisprudence!
– Phillips Salawu, B.Sc, M.Sc, PhD, D.Sc, FCA, FCTI, FCS, FFIA, CPFA, ACIB, LLB;
Deputy Governor, Kogi state (2003-2012)
