Awolowo vs Shagari: Finding The Two-Third of 19 States

Rehashing a notorious litmus test on the constitutional requirements for validly emerging as Nigeria's President

1. The Handover Dinner

2. Finding (x): What Is The Two-Third of 19 States?

3. Awolowo Goes To The Court (I)

4. Awolowo Goes To The Court (II)

5. Dissenting Judgements

6. Postscript: Tinubu And Section 133 (b) of the 1999 Constitution 

7. Footnotes

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1. The Handover Dinner

Shehu Shagari at his swearing-in ceremony as Nigeria’s first democratically elected President (HistoryVille/Unknown)

It rained cats and dogs on October 1, 1979; the day Lieutenant-General Olusegun Obasanjo handed over power to Alhaji Shehu Shagari at the Race Course, Onikan, Lagos. The transition from military rule to democratic governance in Nigeria, the first of its kind, was in fulfilment of General Murtala Muhammed’s promise to ensure that Nigeria returned to democracy by October 1, 1979. General Muhammed was Lt-General Obasanjo’s boss. Unfortunately, General Muhammed was assassinated on February 13, 1976, leaving his deputy, Lieutenant-General Obasanjo, with the onerous task of completing the democratic transition programme. A programme he duly completed.

About five months prior to his murder, on October 18, 1975, General Murtala Muhammed had set up a 50-man Constitution Drafting Committee (CDC) to begin the process of ushering Nigeria into its 2nd Republic. While the CDC was led by eminent legal practitioner Chief F.R.A. Williams, General Muhammed declared at its opening session at the Nigerian Institute of International Affairs in Victoria Island, Lagos, that “the Supreme Military Council have carefully discussed and agreed on an executive Presidential system of government (for Nigeria)”. But General Muhammed did not live to see the CDC complete its work. Eight months after his tragic death in February 1976, Lieutenant-General Obasanjo announced on October 1, 1976 that the CDC had fulfilled its assignment. A Constituent Assembly was then convened on October 1, 1977 to debate the Draft Constitution. The Constituent Assembly confirmed the motion that Nigeria should model its democracy after the presidential system of the United States, with provision for offices of the President, a 95-member Senate and 499-member House of Representatives. The Assembly also confirmed that Nigeria was ready for local and national elections. Meanwhile, General Obasanjo had created the Federal Electoral Commission (FEDECO) in May 1977 and the Commission swiftly sprung to work as the electoral umpire for the 1979 elections.

A total of 52 political associations soon applied to FEDECO to be registered as political parties, but FEDECO, the electoral body, only registered only six, namely: Great Nigerian People’s Party (GNPP), National Party of Nigeria (NPN), Nigeria Advance Party (NAP), Nigerian People’s Party (NAP), People’s Redemption Party (PRP) and the Unity Party of Nigeria (UPN). 

FEDECO then held the presidential election on August 11, 1979, and on August 16, 1979, the Michael Ani led electoral commission declared Shehu Shagari of National Party of Nigeria (NPN) as the winner of the presidential election, after scoring 5,688,857 votes. The Party was also declared to have won 36 seats in the senate and 168 seats in the House of Representatives, making it Nigeria’s ruling party of the 2nd Republic.

To mark the transition, Obasanjo organised a hand-over dinner for Shagari at the Federal Palace Hotel, Victoria Island, Lagos on September 30,1979. There, the General minced no words about the requirements of Nigeria’s new presidential system of government.

“I am handing over Nigeria in its totality—its past, present and future, its assets and liabilities, its infrastructure, its resources, its constitution”, he began.

“…the opportunity which lies within your grip now is that of actualising in yourself a truly national leader, a statesman rather than a politician. Similar opportunity (sic) has been allowed to slip off the grip of our political leaders in the past. I hope and pray that you, Alhaji, Shehu Shagari, will in your case grip firmly the opportunity and refuse to let it slip. Under our new system and within the context of our nation, a Nigerian who aspires to be truly a national leader and who only entrenches himself firmly at home within his tribe and without stretching out and seeking accommodation widely and across ethnic boundaries will end up being a home leader. The whole country is your constituency and you must be father to all, irrespective of their political views or inclinations”.

Thus, just a day after the enumeration of Lt-Gen’s lofty ideals for the future of Nigerian democracy, Alhaji Shehu Shagari was ceremoniously ushered into the Presidential Lodge at Marina, Lagos as Nigeria’s first democratically elected President.

But there was a residual clause in the entire democratic transition charade that puzzled Nigerian political observers at the time. Specifically, it concerned the question about whether the whole country was really Shehu Shagari’s constituency? In short, did Shagari meet the constitutional requirements of Section 34 A (1) c) (i) (ii) needed for validly winning the 1979 presidential election?

[Read: Umari Dikko, Nnamdi Kanu and Buhari’s Tough Love For Fugitives]

Finding (x): What Is The Two-Third of 19 States?

Map of Nigeria’s 1979 Presidential election (Wikimedia)

The law that governed the 1979 elections was the Electoral Decree (1977), as amended by the Electoral (Amendment) Decree of 1978. With regards to the presidential election, the relevant electoral provision was Section 34 A (1) c) (i) (ii). The provision read:

Section 34 (A) (1) — A candidate for an election to the office of President shall be deemed to have been duly elected to such office where:

c) there being more than two candidates –

i) he has the highest votes cast at the election, and

ii) 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.

At the presidential election, five major aspirants squared off for the chance to occupy the Presidential Lodge at Marina, Lagos by winning the highest votes cast at the election and one-quarter (or 25%) of the votes cast in each of at least two-thirds of the 19 states of the federation. These aspirants were Alhaji Ibrahim Waziri of the Great Nigerian Peoples Party (G.N.P.P.), Chief Obafemi Awolowo of the Unity Party of Nigeria (U.P.N.), Alhaji Shehu Shagari of the National Party of Nigeria (N.P.N.), Alhaji Aminu Kano of the Peoples Redemption Party (P.R.P.) and Dr. Nnamdi Azikiwe of the Nigerian Peoples Party (N.P.P.).  

When the election results were compiled, Alhaji Shehu Shagari (N.P.N.) was declared the winner of the election after scoring 5, 688, 857 votes. Chief Obafemi Awolowo (U.P.N.) came a close second after scoring 4, 916, 651 votes. Dr. Nnamdi Azikiwe (N.P.P) came third after scoring 2, 822, 523 votes. Alhaji Ibrahim Waziri (G.N.P.P.) and Alhaji Aminu Kano (P.R.P.) came fourth and fifth after scoring 1,686, 489 and 1,732,113 votes respectively.

FEDECO earnestly declared Alhaji Shehu Shagari (N.P.N.) as Nigeria’s validly elected President on August 16, 1979, because, according to the Commission, he fulfilled the conditions of Section 34 A (1) c) (i) (ii) of the Electoral (Amendment) Decree of 1978 having gotten the most votes cast and having “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''. The Resident Electoral Commissioner of the Presidential election, F.L.O. Menkiti, stated that FEDECO interpreted section 34 A (1) c) (ii) by applying the “ordinary meaning” of the section, and that Alhaji Shehu Shagari received one-quarter of the votes cast, or 25%, in twelve states of the federation and 19.94% of the votes cast in Kano State, the thirteenth state. 

This means that Alhaji Shehu Shagari got 25% of the votes cast in 12 states out of the 19 states of the federation. However, in Kano state—the final state that was to make Shagari pass the constitutional test of “not less than two-thirds of all the states in the federation”—he received 243,423 votes out of the 1,220, 763 votes cast, which was less than one-quarter, or 25%, of the votes cast. However, FEDECO still went ahead to declare Shagari as Nigeria’s validly elected President. To justify its position, the Resident Electoral Commissioner for the Presidential election stated that the legal provision “in each of at least two-thirds of all the states in the Federation” was interpreted by FEDECO to mean “twelve two-third states”, i.e. twelve states and the two-thirds of a 13th state. This means that the electoral commission took two-thirds of the votes cast in Kano state, the supposed ‘final or the two-third state’, which was 813,842 votes and then sub-divided the one-quarter (or 25%) of it , which was 203, 460.5 votes. Since Alhaji Shehu Shagari got 243,425 votes, a number higher than the 25% of the two-thirds of the votes cast in Kano state, the commission viewed him as the validly elected winner of the presidential election. It then declared him the winner.

But this was a nebulous interpretaion of the electoral law, and it deservedly drew the ire of many teeming election obeservers. Was the two-thirds of 19 states twelve two-thirds or should it be rounded up as 13 states? Indeed, what did the drafters of law mean when they inked that a candidate must have not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the 19 states in the Federation?

Perhaps the Court would have a tenable answer; Chief Obafemi Awolowo of the UPN, the second-runner up in the Presidential election, was dying to find out.

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Awolowo Goes To The Court (I)

Center-right: Chief Richard Akinjide, Alhaji Shehu Shagari’s lead Counsel (TheNigeriaLawyer)

Following FEDECO’s announcement of Alhaji Shehu Shagari as Nigeria’s validly elected president having satisfied the provisions of Section 34 A (1) c) (i) (ii), Chief Obafemi Awolowo proceeded to the Presidential Election Tribunal to challenge the declaration in the case Chief Obafemi Awolowo v. Alhaji Shehu Shagari, Alhaji Ahmadu Kurfi and F.L.O. Menkiti. While Chief Awolowo’s petition consisted of a team of twenty-four lawyers, led by Chief G.O.K. Ajayi, S.A.N., Alhaji Shehu Shagari, the first respondent, proceeded to court with a team of twelve lawyers led by Chief R.O.A. Akinjide, S.A.N. The second and third respondents were represented by two counsels from the Federal Ministry of Justice.¹

After presentation of evidence and delivery of oral arguments at the Presidential Election Tribunal, the presiding Judge, B. Kaseem. J., agreed with the interpretation given to the Electoral (Amendment) Decree of 1978 by the third respondent, F.L.O. Menkiti. According to him:

“In the first place, we intend to apply the expression “two-thirds of all the states in the Federation”² which is the gravamen of this Petition, the literal construction of the expression which has been and still is the accepted canon of statutory interpretation in the highest court in England, and which is also approved by the Supreme Court of Nigeria … Considering the words used in the subsection, we are satisfied that they are plain enough and unambiguous. Fortunately, the petitioner and both counsels for the respondents agree with this view. Hence to apply them as provided by the legislature, will not, in our view, create any absurdity. Moreover, we cannot find any gap which has been created by the subsection, which if left unfulfilled will work injustice on any person affected by the subsection.³ On the contrary, we are satisfied that to read more into the subsection is to ask the first respondent to bear more burden in order to be elected,⁴ than what the legislature expressly require him to bear. In our view, that will result in doing injustice to him.

After analysing the election results from Kano State, the tribunal held:

In the circumstances, we are satisfied that the 1st respondent has satisfied the provisions of Section 34A (I) C) (i) and (ii) of the Decree and we therefore hold that he was duly elected President of the Federal Republic of Nigeria.

[Read: The Glorious Exit of Brother Paystack]

To be continued…

1. M. Olu Adediran, ‘Awolowo vs Shagari: A Case of Compromise Between Law And Political Expediency’ (1982) Journal of the Indian Law Instuitute 24/1, 41 <https://www.jstor.org/stable/43950790?read-now=1> accessed 30 April 2021

2. Emphasis mine

3. Emphasis mine

4. Emphasis mine