As regards to the Presidential election scheduled to take place on 25th day of February, 2023, there is a high likelihood that it may not produce an outright winner, and in such situation, there is going to be a run-off to decide who would become the next President of the Federal Republic of Nigeria after Muhammadu Buhari.

In my analysis, I am going to restrict my arguments and opinions to the provisions of the 1999 Constitution of the Federal Republic of Nigeria, As Amended (CFRN) because it is the grundnorm and any law with provisions that are inconsistent with it shall be declared null and void.

WHEN A RUN-OFF IS MANDATORY!

Section 134 (2) of the CFRN provides that:

"A candidate for an election to the office of the 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 in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja."

The above quoted provision of the CFRN means that for a candidate to be declared a winner of the presidential election, the candidate must have: the highest number of votes cast; and 25 percent of the votes cast in two-thirds of all the States in the country and the FCT. Two-thirds of all the States excluding the FCT is 24 States. However there is an ambiguity in the above provision. Is it that the FCT is regarded as a State thereby increasing two-thirds to 24.6, approximately 25 States; or that the candidate must also record a two-thirds victory in the FCT? This ambiguity can only be thrashed by the Court.

For clarity, I will take two-thirds to be 24 States, meaning that the candidate must record 25 per cent of votes cast in 24 States. If a candidate fails to meet this threshold, the CFRN says there must be another election, which I call "run-off".

WHO ARE THE CANDIDATES TO ENTER THE RUN-OFF?

Section 134 (3), CFRN provides that:

"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 has a majority of votes in the highest number of States, so however that where there are 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."

In clear terms, the runoff is going to be between two candidates. The first candidate is who recorded the highest number of votes, that is, simple majority; and the second candidate is the one, when the first candidate is excluded, got the majority votes in highest number of States.

Let me use a scenario to break it down for proper understanding. Assuming the election was conducted in Oth Republic having five States of - Ghan, Enth, Port, Seng and Score, and amongst three candidates whom are Sar, Dar and Bar. And the results were as follows:

Ghan: Sar - 5 votes, Dar - 4 votes and Bar - 3 votes

Enth: Sar -5 votes, Dar - 4 votes and Bar - 3 votes

Port: Sar 5 votes, Dar - 4 votes and Bar - 3 votes

Seng: Bar - 5 votes, Sar - 4 votes and Dar - 1 votes

Score: Bar - 5 votes, Sar - 2 votes and Dar - o vote.

Total votes: Sar - 21 votes, Bar - 19 votes and Dar - 13 votes.

From the above scenario, Sar got simple majority of 21 votes, so he is going to be the first candidate for the runoff. The second would be the person with majority of votes in the highest number of the States had it been Sar was not on the ballot. That person is Dar even though Bar had more total votes. Dar got the majority of votes in three States of - Ghan, Enth and Port; while Bar got the majority of votes in just two States of - Seng and Score.

However, where both Dar and Bar got majority of votes in the highest number of States, the second candidate is going to be the one with the highest number of votes cast, simple majority. This is possible if for example, in Oth Republic, there is a sixth State called 'Via' and from the results, Bar got 1 vote while Dar got 0 vote. In this situation, Dar has majority of votes in three States of - Ghan, Enth and Port; while Bar also has majority of votes in three States of - Seng, Score and Via. But because Bar secured the highest votes, which is 20 votes as against Dar's13 votes, Bar would be declared the second candidate for the run-off.

There are further conditions a candidate must meet before he can be declared winner of the runoff. They are stated in Section 134 (4) of the CFRN and are same with that of Section 134 (2) - highest votes cast and 25 per cent of votes cast in 24 States.

If at the end of the run-off, a candidate fails to get the highest votes cast and 25 per cent of votes cast in 24 States, then a simple majority run-off would be conducted to determine the next President of Nigeria as provided in Section 134 (5) of the CFRN.

THANK YOU!

Oke Nathaniel Atori, Esq. (Head, Actsmart Practitioners)