Who becomes Acting President if Court orders a rerun? Here’s what the law says

While no Nigerian president has been removed by the court, there is a growing feeling, particularly among the opposition, that the tribunal might order a rerun for the presidential election held on February 25, 2023.

It’s been 192 days after the hotly contested election and 98 days since Bola Tinubu was sworn in as Nigeria’s 16th president. However, the race for who will oversee the affairs of Africa’s biggest economy rages on.

The election, a three-horse race between Atiku Abubakar of the Peoples’ Democratic Party (PDP), Peter Obi of the Labour Party, and Bola Tinubu, who was declared the winner by the country’s electoral body, was allegedly marred by election violence, malpractice, and result manipulation.

What has followed the election is an intense legal battle, as Peter Obi and Atiku are seeking court intervention to overturn the election result.

‘#Eyesonthejudiciary’ has become a recurring trending hashtag on X (formerly Twitter), as supporters of Peter Obi seek to spotlight the judiciary and ensure that the judges deliver what they consider a fair judgment.

While it remains unknown how the judges will rule on the matter, some Nigerians consider a rerun as the most likely outcome, with Julius Abure, Labour Party chairman, alleging in July 2023 that the ruling party, All Progressives Party (APC), is already preparing for a rerun.

But who will become the Acting President when the court orders a rerun?

While in the past the court has ordered a rerun after months of legal battles at the state level, no presidential election has been overturned by the court since Nigeria gained independence in 1960.

In February 2009, nearly two years after the 2007 gubernatorial election in Ekiti, the Federal Appeal Court nullified the election that brought in Segun Oni and ordered a rerun. Although the Independent National Electoral Commission (INEC) declared Oni as the winner of the rerun, Kayode Fayemi reclaimed his mandate through the court on October 15, 2010, 41 months after the election.

During the period of the rerun (February 2009 and May 2009), Tunji Odeyemi, the then Speaker of the House of Assembly of Ekiti, became the Acting Governor according to the provisions of the Nigerian 1999 Constitution as amended.

According to section 191 (2) in scenarios where the seat of a governor of a state, and the deputy becomes vacant by reason of death, resignation, impeachment, permanent incapacity, or removal from office for any reason allowed by the law, ‘the Speaker of the House of Assembly of the State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the State who shall hold office for the unexpired term of the last holder of the office.’

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This was also witnessed in 2014 when Ahmadu Fintiri, the then Speaker of the House of Assembly of Adamawa State and now Governor of the State, was Acting Governor between July 2014 and October 1, 2014, after the impeachment of Governor Murtala Nyako and the voluntary resignation of the deputy governor, Bala Ngilari.

Although it is likely that a rerun declared by the Presidential Tribunal will be appealed by President Tinubu and APC, the power shift as allowed at the State level, where the third-ranking official in the state will be sworn in as Acting Governor, is applicable at the Federal level, if the Supreme Court affirms Tribunal’s ruling.

Section 146(2) of the constitution states, ‘Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of not more than three months, during which there shall be an election of a new President, who shall hold office for the unexpired term of the last holder of the office.’

The nullification of the February 2023 Presidential election by the Supreme Court implies the removal of both President Bola Tinubu and Vice President Kashim Shettima as they are considered a joint ticket.

If this happens, Senate President Godswill Akpabio, a member of the ruling party, APC, will be sworn in as Acting President – a position he’s expected to hold for not more than 90 days, during which INEC will conduct a fresh presidential election.