Introduction
There are lot of controversies over the interpretation of the Nigerian constitution in regard to the requirement for the presidential election. Most of the arguments are biased towards the preferred candidate of the interpreter. Constitutional interpretation allows individuals to justify their actions and government to legitimize their policy decisions. Interpreting the Constitution requires figuring out what the people who framed or amended it meant by the words they put in it.
Methods of Interpretation
Different judges sometimes use different methods to interpret the constitution; judges may not always agree on the meaning of a provision in the constitution. There are several accepted methods of interpretation that shed light on the meaning of the constitution. Since we copied our system of government from the Americans, let us examine how portions of constitution are interpreted in USA. The Supreme Court is the highest tribunal of the United States for all cases and controversies arising under the constitution. The USA Supreme Court has been using several methods or principles of interpretation of a particular provision within the constitution. This article summarizes the most common methods of constitutional interpretation into five and applies them to the presidential election section of Nigerian constitution. These methods are used in courts worldwide without being given specific names.
(1) Textualism – the text and language of the constitution, relying on common understandings of what the words meant at the time the provision was added.
(2) Intentionalism or originalism (original intent) – intentions of those who drafted or ratified the provision
(3) Prior precedents (usually judicial)- cannot thrive if historical data are not available.
(4) Fundamentalism (based on moral values (moralism), ideology – what the country stands for (Structuralism), historical practices, culture or beliefs in the country, spirit of the country, the social, political, and economic rights)
(5) Modernism or instrumentalism (living Constitution) – pay as you go interpretation. It depends on the current situation and opinion, to be adapted to current needs. So, it depends on what the judges think is good for the country at that moment. This allows room for judges to impose their own subjective values.
In a simpler classification of methodology of interpretation, textualism and intentionalism are classified as originalism while the rest methodologies are classified as pragmatism. Persons who favor heavy reliance on originalist sources (text and intentions) are commonly called “originalists.” Persons who favor giving a more substantial weighting to precedent, fundamentals, or consequences, are called “non-originalists or pragmatists.” We shall use these two classifications to analyze and draw conclusion on the interpretation of Nigerian presidential electoral requirements.
As a reminder, Section 134, subsection 2, of the 1999 Constitution states:
A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
- he has the highest number of votes cast at the election; and
- he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
Pragmatism Interpretation
Pragmatist often involve weighing and balancing the likely practical consequences of Originalist interpretations of the Constitution. Pragmatism weighs the future moral costs and benefits of an interpretation to the country, selecting the interpretation that may lead to the perceived best outcome. A pragmatist is therefore a non-originalist who gives substantial weight to judicial precedent or the consequences of alternative originalist interpretations, so as to sometimes promote stability or morality or the public good. So, a pragmatist predicts interpretation of the constitution based on historical data, community values, or current affairs.
The most commonly cited source of constitutional meaning by pragmatists is the prior decisions on questions of constitutional law. Judicial precedent provides possible principles, rules, or standards to govern judicial decisions in future cases with arguably similar facts.
Pragmatism allows the constitution to be lively to match more enlightened understandings on current matters. Pragmatism therefore allows judges to have the right to exercise discretion. The greatest disadvantage of this is that a biased political judicial activist may be careless and misguided in his or her effort to enact a political agenda into constitutional law.
Amidst many disadvantages of pragmatism, one advantage stands out. Pragmatism allows judges to cut off crises that could result from inflexible interpretation of a provision in the Constitution that no longer serves its original purpose. Let us apply pragmatism to the Nigerian presidential election law.
Was there a precedent? What national value is there to protect? Is there any consequences for interpreting the legal document directly?
Yes, there was a precedent. In 1979, there were 19 States and the Federal capital was part of Lagos State. In 1999, the Federal capital had shifted and FCT was not officially recognized as a State. One can read the intention of the drafters not to leave out counting FCT as a State as in previous law. Hence, they specifically added “And FCT” in the second requirement stated above.
It is not the job of the drafters to ensure that the total number of States is divisible by 3. It is the job of the government to understand the context. Obviously, we are back to the same crisis of 1979 when two-thirds of 19 was twelve two-thirds. Today again, two-thirds of 37 is twenty-four two-thirds. In order to resolve this crisis, the government needs to create two or five more States.
Do we really have a national identity to protect? Nigeria runs a unitary federal government. The unity of the country is not threatened by applying originalism method of interpretation. Lastly, there are no moral consequences that are involved.
Originalism Interpretation
In many definitions, the textualists and intentionalists are both called originalists because they both use the text of the constitution to interpret.
A textualist is an originalist who gives primary weight to the text and language of the constitution.
Intentionalist is an originalist who gives primary weight to the intentions of framers and ratifiers. The primary intention of the framers is to provide simple and non-ambiguous provisions.
Textualist focuses on the meaning of the text of a constitution. Textualism requires proper understanding of the Language of the legal document and how sentences are constructed in that Language. Textualism emphasizes how the terms in the Constitution should be understood, as well as the context in which those terms appear.
Originalists are skeptical of the ability of judges to determine collective intent.
Originalism does not give a judge the right to create new constitutional rights or destroy old ones. Any time he does so, he or she violates the limits of his authority and the rights of the legislature and the people.
Originalism in the long run better preserves the constitution. Non-originalism (pragmatism) allows room for judges to impose their own subjective values. Judges need neutral, objective criteria to make legitimate decisions. The understanding of the framers and ratifiers of a constitutional clause provides those neutral criteria.
How does intentionalist interpret? One would think that he or she should rely on the original framers if some of them are still alive. No, that may never give the original intent because the current situation in the country may have created a bias in him or her. So, intentionalist has to work with the text of the legal document, just like the texualist but with focus on determining the intent of the drafters. Let us apply originalism to the Nigerian presidential election law.
Only the second part of the requirements stated above is in dispute. Applying originalism, if 25% FCT is critical, the drafters would have used one of these two options to make it clear:
- The second criterion would have had 25% added before FCT as follows:
he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and not less than one-quarter of the votes cast in the Federal Capital Territory, Abuja.
- The other option is to create a third criterion as follows:
A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
- he has the highest number of votes cast at the election; and
- he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation
- he has not less than one-quarter of the votes cast at the election in the Federal Capital Territory, Abuja.
The two options are the same but just different in style of presentation. We also notice that in using any of these two options, the FCT has been separated out and cannot be considered as a State, which violates the intent of the framers as stipulated in another section that FCT should be treated as a State. The framers were wise. None of these two options are used in the constitution. The word “and” is conjunctive to ensure that FCT is counted as a State as also referenced in another section of the constitution. The original intent of the word “And” has also been explained under pragmatism.
In conclusion, this third requirement that is not in the constitution, that many lawyers are adding because of the conjunctive word “And” is self-serving. Most of these lawyers know this. 25% of votes in FCT is not a requirement for the presidential election.
- Dr. Abiodun Olowe, a professor of Engineering, contributes this article from Houston in the United States of America, USA. Though not a constitutional lawyer, he has led and participated in the drafting of various constitutions both for online and on land communities. He has also read books on constitution writing techniques and rule of law. Therefore, he wrote this article based on his knowledge and experience in constitution writing and interpretation.
