Neusroom Explainer: Can Buhari remain in office beyond May 29 as concerns grow over insecurity and 2023 elections?

Insecurity in Nigeria is threatening the nation’s general elections, with the Independent National Electoral Commission (INEC), the body responsible for conducting elections, hinting that Presidential and Gubernatorial elections scheduled to hold on February 25, and March 11, 2023, might be postponed or cancelled if the situation does not improve. 

Since Nigeria returned to democracy in 1999 after 27 years of military rule, the country has enjoyed 24 years of uninterrupted democracy, with elections being held every four years. However, the country is witnessing a rise in insecurity and terrorism, not just in the Northeast, where Boko Haram displaced over two million people since 2009, but in other regions. In the Northwest, ravaged by bandits, more than 3000 deaths were recorded as a result of insecurity in 2022 alone. The Southeast also saw a spike in attacks leading to the death of 627 people in 2022, notably by the activities of the proscribed Indigenous People of Biafra (IPOB) and the Eastern Security Network launched by Nnamdi Kanu in 2020. 

In light of the prevailing security crisis, on January 9, 2023, the Chairman Board of the Electoral Institute TEI, INEC’s training arm, Prof. Abdullahi Abdu Zuru said that “if insecurity in the country is not monitored and dealt with decisively,” the 2023 general elections might be postponed or cancelled “in sufficient constituencies to hinder declaration of elections results and precipitate a constitutional crisis.”

The hint of postponing elections generated mixed reactions from Nigerians on social media, with many suggesting that the present administration had eight years to fix insecurity but failed.

What is the position of the law when elections are cancelled or postponed beyond May 29, 2023, when a new President is expected to be sworn in?

Habib Abdulfatah, a legal practitioner, told Nuesroom that though INEC as an independent body is empowered by the constitution and the  Electoral Act 2022 to postpone elections based on some verifiable reasons, the constitution does not allow a sitting President to extend his tenure except in a situation where the country is at war.

“If there is an emergency or a circumstance that will hinder INEC from delivering a free and fair election, the commission has the right to postpone the election.”

In 2015, the then INEC Chairman postponed the February 14 Presidential election by six weeks to March 28, 2015, citing insecurity. Also, on February 16, 2019, at around 3 am, Prof Mahmood Yakubu altered the election schedule by one week from February 16 to 23 and March 2 to March 9 for the Presidential and Governorship elections, respectively. 

Nigeria, since the return to democracy in 1999, has not failed to hold an election in an election year. Abdulfatah said that while INEC is backed by the constitution to postpone an election, the law only provides for a sitting President to remain in power at the expiration of his tenure in case of war.

“The only time a sitting President can still stay in power beyond his tenure is when the country is at war, and this is provided under section 135 (3) of the 1999 constitution as amended.”

The law states: If the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time; but no such extension shall exceed a period of six months at any one time.

War, according to the Oxford Learner’s Dictionary, is “a state of armed conflict between different countries or different groups within a country,” and some legal experts disagree on the definition as it relates to the constitution. 

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Abdulfatah said that the law didn’t say insecurity but war. He does not believe that the insecurity plaguing the nation could be considered a war in the context of the constitution. 

“In the case of war, the President cannot use his veto power to extend his tenure but the National Assembly needs to make a resolution to extend his tenure.”

This, however, shall not exceed a period of six months at any one time.

However, Robert Clarke, a senior advocate of Nigeria (SAN), in March 2022, said that insecurity could be enough reason for the sitting President to extend an election.

“If the situation in which we are in now continues, and it is impossible to hold the 2023 election, the only consolation is that the constitution provides that the president can stay longer than eight years. I’ve always said it. It is in the constitution.”