By Dr. Isaiah Osifo
The Doctrine of Necessity has become important and needed for the following reasons:
1. The violation of Constitution brews crisis in a Democracy.
2. Constitutional crisis in a Democracy is resolved by seeking interpretation of the court.
3. There is no precedent that any democratically elected president in Nigeria was declared winner of a presidential election without scoring the 25 percent of votes cast at the election in FCT.
The controversy and the Constitutional crisis over the 25 percent FCT requirement to win a presidential election in Nigeria and it’s consequent threat to our democracy would have been avoided if INEC Chairman, Prof Mahmoud Yakubu had acted in the best of Nigerians by reliance on his own INEC guidelines that provide for a number of days for the resolution of petitions against the declaration of results before the announcement of the winner.
There were petitions and surplus notifications to the INEC chairman before his announcement of the result, that the winner of a presidential election in Nigeria requires 25 percent of total votes cast in the FCT.
Why was the haste to declare the winner of the presidential election and ignoring the fact that there is no precedent that any elected president of Nigeria was declared winner of a presidential election in Nigeria without meeting the 25 percent FCT requirement.
I have praised the innovations the actions of INEC leadership towards the conduct of credible elections in Nigeria.I still hold my opinion and commend the obvious improvements by INEC for the conduct of transparent elections in Nigeria.
However, this hurried decision by the INEC Chairman to declare the winner of the presidential election without seeking the input of the ministry of Justice on the emerging Constitutional clause and glaring electoral infractions in many parts of the country have erased the confidence of the majority of Nigerians on the impartiality of INEC Chairman.
For example, 1979 Constitution of Nigeria stipulated the 25 percent requirement in 2/3 of the States of the Federation without mentioning of Lagos, the then federal capital territory. The implication is that Lagos was not a specific requirement to win a presidential election in Nigeria. In the 1999 Constitution, FCT was specifically mentioned.
The incisive and educative treatise by learned Senior Advocate of Nigeria, Mike Ozekhomen, on the subject of the 25 percent FCT requirement to win a presidential election in Nigeria is sufficient in exposing the fallacy of INEC declaration of Presidential election result and a strong pillar for the resolution of the Constitutional crisis.
The simple meaning of “AND” has been made complex by INEC Chairman and others that care less about the survival of democracy in Nigeria. “AND” is not a latin word, but simple English word and its meaning is known to children in elementary schools.If the makers of the Constitution perceived the FCT as the 37th State in Nigeria for the purpose of declaring the winner of the presidential election, they would have not added FCT after mentioning “all” States of the federation.
The inevitable Constitutional requirements for the conduct of elections and announcement of results cannot be frustrated by the partisan approach of INEC chairman.In the year 2000, Al Gore the Democrat presidential candidate defeated George W Bush ,the Republican presidential Candidates with millions of majority of votes cast, but Al Gore was short of the US Constitutional requirement of the number of “Electoral College Votes” that was required to be declared as the winner of the presidential election.
The US Electoral body waited and delayed the announcement of the presidential election result until the controversial issues surrounding the counting of votes of the State of Florida was resolved by the US Supreme Court. The Florida votes were eventually counted, Al Gore had majority votes in the presidential election, but George W Bush had the required Electoral College Votes and was declared the winner of the election.
The question for INEC chairman, arising from the US 2000 presidential election experience is, why was the rush to declare APC/Tinubu the winner of the presidential election without seeking the interpretation of the Supreme Court through the office of the Attorney- General of the federation? Which would have served igerians better- the haste for a controversial declaration of APC/Tinubu as the winner of the presidential election, or a patriotic circumspection for the intervention of the department of Justice and the Supreme Court to resolve the issue before the declaration of the winner, or inconclusive for a bye election?
In the US presidential election of 2016, Hilary Clinton, the Democrat presidential candidate won the majority of votes cast at the election, but Donald Trump, the Republican candidate had the requirement of the Electoral College Votes and was declared the winner of the election.
The Nigeria presidential system is modelled after the US Presidential system and has striking similarities in Constitutional provisions and electoral laws.
The Nigeria Constitution is cleared on the requirements for the winner of a presidential election and the intention of the drafters is equally clear- You require:
1. Majority of lawful votes cast at the election.
2. Not less than one- quarter (25 percent) 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.
Accepting and knowing that the FCT enjoys the status of a State in the Federation by Constitutional inference, the makers of the Constitution would not have insisted on the addition of FCT after the emphasis on (ALL) the States of the Federation.
Femi Falana, (SAN),and others that hold the opinion that FCT is part of the States of the Federation are correct.
However, FCT for the purpose of the Constitutional requirement to win a presidential election in Nigeria, Femi Falana and others have a responsibility to explain why the insistence by the makers of the Constitution on the specific mentioning and the addition of FCT to all the States of the Federation.
The president and commande- in- Chief of the Armed forces of Nigeria and all Patriots of all Nigeria should work to save democracy and stability of Nigeria.
The doctrine of necessity has become so important and should be invoked for the purpose of resolving the Constitutional crisis in Nigeria. The doctrine of necessity is not in the military intervention in politics, and it is not in the composition of Interim Government.
The doctrine of necessity should be in the application of the office of the Attorney- General of the Federation and minister of Justice to approach the Supreme Court and seek for the interpretation of the 25 percent FCT requirement to win a presidential election in Nigeria.
This should not take more than five working days to achieve. The decision of the Supreme Court will be binding on all and there will be more time for the government, INEC and Nigerians to respond to the decision of the Supreme Court.
Public Policy Consultant.