What happens if governor elect defects after winning an election in Nigeria?

  • The article discusses the issues of violence and litigation that often arise during sub-national elections in Nigeria. 
  • It highlights the impact of the Electoral Act 2022 in limiting the duration of post-election matters to 180 days. 
  • The article provides insights into possible controversies that may arise after elections and how the law addresses them, using past cases as examples. 
  • The article covers various topics such as the requirements for vying for the office of a governor, conditions for being declared a winner, what happens in the event of a winner’s death, the tenure of a governor, and other related issues. 

In Nigeria, sub-national elections are usually marred with violence and controversies thereby leading to various litigations.   

In the past, before the Electoral Act 2022, These litigations could linger for several years. However, with the coming of the Act, all post-election matters are to be concluded within 180 days after a petition has been filed.  

Though Generally elections are riddled with various controversies, The struggle for who will occupy the number 1 seat in a state is usually embodied with more controversies.  

Nairametrics have put together a list of possible controversies that might arise post-election, what the law says about them and examples of such cases in the past and how the court ruled.  

Q: What qualifies a person to vie for the office of a Governor  

Answer: Section 177 of the 1999 Constitution clearly states the requirement that qualifies one to contest for the office of the Governor of a state.  

The section states that to qualify, “A person must be a citizen of Nigeria by birth, Must have attained the age of thirty-five years, must be a member of a political party and is sponsored by that political party; and has been educated up to at least School Certificate level or its equivalent.” 

Q: 4 What is required to be declared the winner 

Answer: Section 179 of the constitution speaks on Single Candidate and Two Or More Candidates  

Where two or more candidates are contesting, Section 179 (2) states that a Candidate shall be deemed to have been duly elected where he has the highest number of votes cast and not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State. 

Q: what happens if no candidate meets the requirements above? 

Answer: According to subsection 3, Where the above condition has not been met, the law stipulates that another election will be conducted between the candidate who secured the highest number of votes and the candidate who secured a majority of votes in the highest number of local government areas in the State,   

(3) states that “ in default of a candidate duly elected in accordance with (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 secured the highest number of votes cast at the election; and 
  • (b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there is more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate. 

Q: Who takes over if a Governor-elect dies before swearing in? 

Answer: Section 181 of the 1999 Constitution which provides for the death of a Governor before taking the oath of office stipulates that his running mate shall be sworn in as the governor. 

(1) states that “If a person duly elected as Governor dies before taking and subscribing the Oath of Allegiance and oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy governor shall be sworn in as Governor and he shall nominate a new Deputy-Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly of the State.” 

Example: In 2015, Prince Abubakar Audu of Kogi state died before the results were announced and he had polled the highest number of votes  

Though INEC had already declared the election inconclusive before Audu’s sudden death, he polled the highest vote of 240,867 in the November 21, 2015 governorship election.  

He was replaced with Yahaya Bello because Yahaya had the second-highest vote in the party’s primaries.  

Though Audu’s running mate had approached the court seeking to be declared as the winner, the Kogi State Governorship Election Petition Tribunal and the Court of Appeal declared Bello as the Governor.  

He subsequently approached the Supreme Court, but the apex court held that he was not entitled to the votes as the election was not concluded before the death of Audu. 

Justice Kudirat Kekere-Ekun held that since the election had not been completed and the final results issued by the electoral body, Faleke, as a running mate, cannot claim ‎victory in the election. 

The Apex court held that by virtue of Section 221 of the 1991 constitution, Bello, having become the governorship candidate of the APC, and legally sponsored by the same party, can lay claim to the votes of 240,867 cast for the party in the November 21, 2015 election in the face of the law. 

Q: What happens if both the governor-elect and deputy governor-elect die before assuming office? 

Answer: according to subsection 2 of section 181, in this situation, INEC shall immediately conduct another election for the office of the Governor and Deputy Governor of the state.  

Q: How long is the tenure of a Governor in office  

Answer: As stipulated by the constitution, Governors have two-term limits and currently, Nigeria has 18 incumbent governors that are not eligible for re-election.  

These governors are term-limited and cannot seek re-election for a third term because they have governed for 4 years and have been re-elected for another 4 years.  

Going by the provision of the constitution, a Governor is not allowed to occupy the office for more than two terms, that is, eight years cumulative of four years each. 

Q; can a winner defect after winning the election? 

Answer: Currently no law prescribes that a person voted into the office of the Governor of a State, would lose his seat if he defect to another political party different from the one on whose platform he won. 

This had made some candidates in the past defect as they see political parties as vehicles used to win elections.  

 In AG FEDERATION v ABUBAKAR & ORS (2007) LPELP-3 46, the Supreme Court held “that defection is “immoral, unconscionable and painful, but not illegal”. 

As stipulated under Sections 188 and 189 of the Constitution, the only circumstances wherein an elected Governor can lose his or her seat is either impeachment or permanent incapacity to discharge the duties of the office. 

Under this law, the Deputy Governor of the State would be sworn in as the Governor, 

Q: what happens in the event an election is declared inconclusive?  

Answer: As stipulated by the electoral act, a re-run of the election should be declared by INEC.the Act. 

INEC declares an election inconclusive, where the margin of victory in an election is lower than cancelled votes or where the vote difference between the leading candidates is less than a thousand.  

Example: In 2018, at the Osun Governorship election, thousands of votes were cancelled in various local governments. They were annulled based on irregularities or anomalies during the election. 

INEC consequently declared the 2018 Osun governorship election inconclusive. The margin between Ademola Adeleke of the PDP and Gboyega Oyetola of the APC who were the two leading candidates was less than the total cancelled polling unit votes.  

The election which was held to replace the then-incumbent Rauf Aregbesola had 48 candidates who contested for the office. 

Adeleke polled 254,698 votes while Oyetola polled 254,345 which brought the margin of victory between the duo to 354 votes. 

These 354 votes were far lower than the number of voided ballots which was above 3000 thereby leading to a declaration that the election was inconclusive and a later date was fixed for a Rerun of which Oyetola emerged the winner. 

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