Section 24
Conduct and postponement of election in emergency(1) In the event of an emergency affecting an election, the Commission shall, as far as practicable, ensure that persons displaced as a result of the emergency are not disenfranchised.
(2) Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable.
(3) Where an election has commenced and there is reason to believe that there is or has been substantial disruption of election in a polling unit or constituency or it is impossible to continue with the election occasioned by threat to peace and security of electoral officials and materials, the Commission shall suspend the election and appoint another date for the continuation of the election or the process.
(4) Where the Commission appoints a substituted date in accordance with subsections (2) and (3), there shall be no return for the election until polling has taken place in the area or areas affected.
(5) Notwithstanding subsection (3), the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made.
(6) The decision of the Commission under subsection (4) may be challenged by any of the contestants at a court or tribunal of competent jurisdiction and on such challenge, the decision shall be suspended until the matter is determined.
This section empowers the Independent National Electoral Commission (INEC) to postpone an election due to emergencies before the commencement of any election or during the period of the conduct of any election.
Following the displacement of citizens following from Insurgency in parts of the country, an amendment to the repealed 2010 Act in 2015 recognized the right of the displaced persons (IDPs) to vote and not be disenfranchised. This provision is retained in subsection (1) of the 2022 Act.
While the provision to address likely or foreseeable emergencies or threat to an election was part of the repealed Act (e.g., likely serious breach of the peace or natural disasters), the 2022 Act goes a step further to address emergencies resulting from threat to peace and security of electoral officials and materials after commencement of an election.
There have been widespread instances of substantial disruptions of elections at polling units by political thugs. This informed the inclusion of subsection (3) which formally recognises the power of INEC to suspend the election and appoint another date for the continuation of the process, although this position has been repeatedly upheld by the courts.
In cases such as stated in this section, no declaration of result can be made by INEC until voting takes place in the affected areas except where the result of the election will not be affected by the non-voting in the affected areas. This is essentially to save public funds, time and other resources that will be spent conducting fresh elections in the affected areas which would not affect the overall result of the election. This decision is however subject to judicial review.
NOTE: Where the conditions in Section 24 (3) is found to be present and satisfied, it can trigger the application of the “Margin of Lead” principle. The Margin of Lead principle is defined in Clause 62 of the INEC Regulations and it applies where the difference in the total number of votes cast between the two leading candidates in an election is more than the total number of votes canceled or voided for reasons under sections 24 (3) (violence), section 47(BVAS malfunction) & 52 (over-voting) of this Act. In such cases, the election is deemed to be inconclusive, and no declarations can be made until supplementary elections are conducted.
Regulation 62 states as follows:
“Where the margin of lead between the two leading candidates in an election is NOT in excess of the total number of voters who collected their
Permanent Voters’ Cards (PVCs) in Polling Units where elections are postponed, voided or not held in line with Sections 24(2 & 3), 47(3) and 51(2)
of the Electoral Act 2022, the Returning Officer shall decline to make a return for the constituency until polls have been conducted in the affected
Polling Units and the results collated into the relevant forms for Declaration and Return. This is the Margin of Lead Principle and shall apply wherever
necessary in making returns for all elections in accordance with these Regulations and Guidelines.”
On Power of Independent National Electoral Commission to postpone election, the court held that –
“By virtue of section 27(1) of the Electoral Act, 2006, where a date has been appointed for the holding of an election and there is reason to believe that a serious breach of peace is likely to occur if the election is proceeded with on that date, it is impossible to conduct elections as a result of natural disasters or other emergencies, the Independent National Electoral Commission may postpone the election and shall in respect of the area or areas concerned appoint another date for the holding of the postponed election. In the instant case, the postponement of the gubernatorial election in Enugu State to the 28th of April, 2008 was quite valid and constitutional.”
OKWUOSA V. OBIORA (2009) 8 NWLR (PT. 1147) 593“… The provision gives power to the Independent National Electoral Commission to postpone any election due to intervening factors stated under the Act, before the commencement of any election or during the period of the conduct of any election.”
PDP VS. SYLVA (2012)13 NWLR(PT.1316)85The respondent challenged the decision of INEC to cancel and reschedule the 2012 Governorship election in Bayelsa state. In dismissing the contention, the Supreme court per Justice Rhodes Vivour held that “INEC has the sole responsibility to fix dates for elections and to my mind if INEC fixes a date for elections and for whatever reason be it logistics, I do not think anyone has a cause of action against INEC for cancelling the election (not held) and rescheduling elections for another day"
AJA V. ODIN (2011) 5 NWLR P. 538, PARAS.E-GWhere INEC has published a notice, it is legally allowed to postpone the date where there is an emergency or natural disaster that will make it impossible to conduct the election or where it will result in a serious breach of peace.
On the Need to Prove Substantial Disruption of Election in a Polling Unit or Constituency in a Petition.
PDP & ABUBAKAR ADAMU V. HAMISU SAMAILA, APC & INEC (CA/S/EP/SHA/34/2023) (Unreported)
The Court of Appeal held that mere disruption at the polling unit during the election does not call for INEC to conduct a re-run/supplementary
election in the affected polling units. Section 24 of the Electoral Act, 2022 which talks about elections being postponed or rescheduled to another
date where emergencies/disruptions take place so that nobody is disenfranchised, will not avail a party/petitioner who fails to plead and lead evidence
on what caused the disruption in affected polling units as not every disruption of election can lead to supplementary election. Evidence must be given
on the extent and magnitude of the alleged disruption, or evidence that would warrant the declaration of the result inconclusive.
ADEBUTU & ANOR V. INEC & 2 ORS. (CA/IB/EP/GOV/OG/22/2023) (Unreported)
The Court of Appeal held that the evidence tendered was insufficient to establish that elections were disrupted in disputed polling units or that the
number of persons who collected their PVCs in the disputed polling units exceeded the Margin of Lead between the two leading candidates, therefore,
a supplementary election could not be ordered by the Court.
See also OBI EBAM NDEP & PDP V. INEC, APC & ISONG (CA/C/EP/SHA/CR/37/2023) (Unreported) on the need for a petitioner to prove that the circumstance or conditions in section 24 (3) exists before the Margin of Lead principle is applied and a supplementary election ordered.
On INEC’s announcement of a Substituted Date for Election in Cases of Threat to Peace and Security of Election Officers/Materials or Disruptions.
OHUABUNWA & PDP V. INEC, KALU ORJI UZOR & APC (CA/OW/EP/SEN/AB/13/2023) (Unreported)
The Tribunal and Court of Appeal held that the Statement of a Resident Electoral Commissioner (REC) made via a recorded press
briefing to the effect that elections in disputed polling units would be rescheduled to another day for reasons of logistics and
security was not equivalent to an announcement of the postponement of the election for the purpose of supplementary election.
The respondents had challenged the admissibility of the video and the identity of the official (the REC) in the press briefing.
They also noted that the date of the press briefing was not stated and there was no mention of any date for the holding of the said
supplementary election; therefore, the provision of section 24(4) dealing with substituted date for election could not be activated.
For further reading on visit Nigeria International Election Observation Mission Final Report P.21
