On Thursday, a seven-member panel of the Supreme Court upheld an appeal filed by the Independent National Electoral Commission (INEC) and restored sections 77(5), 77(6), 77(7) and 84(2) of the Electoral Act 2026.
The supreme court, in its lead judgement delivered by Adamu
Jauro, held that the provisions voided by the Appeal Court in July are not
inconsistent with the 1999 Constitution.
The apex court consequently set aside the appellant court’s
verdict and restored the Federal High Court’s ruling, which had dismissed the
suit filed by the Zenith Labour Party (ZLP) challenging the provisions.
The Supreme Court also awarded N2 million in costs against
the ZLP.
The ruling has far-reaching implications for political
parties and candidates ahead of the 2027 elections, particularly regarding
party membership registers and candidate nominations.
WHAT THE SECTIONS SAY
Section 77(5) of the Electoral Act provides that only
members whose names are contained in a political party’s membership register,
submitted to INEC at least 21 days before a primary, congress, or convention,
can participate in the exercise.
Section 77(6) states that a party cannot use any membership
register other than the one submitted to the electoral commission for its
primaries, congresses, and conventions.
Under section 77(7), a party that fails to submit its
membership register within the stipulated period cannot field a candidate for
the election.
Meanwhile, section 84(2) stipulates that political parties
shall nominate candidates for elective positions through direct primaries or
consensus.
In the suit challenging the constitutionality of the
affected sections at the federal high court in Abuja, ZLP argued that the
provisions amounted to interference in the internal affairs of parties and
conflicted with sections 221 and 222 of the constitution, which recognise the
right of political parties to determine their candidates.
In a judgement delivered in May, Mohammed Umar, the trial
judge, dismissed the suit. The ZLP subsequently went to the court of appeal in
Abuja.
On July 16, a three-member panel of the appellate court
upheld the appeal in part and declared sections 77(5), (6), (7) and 84(2) of
the Electoral Act unconstitutional.
The court held that the constitution already provides the
conditions for qualification and disqualification of political parties and
candidates, and that the national assembly could not impose additional
restrictions that conflict with constitutional powers granted to political
parties.
Dissatisfied with the ruling, INEC approached the supreme
court.
In the appeal marked SC/CR/495/2026, the electoral
commission asked the apex court to set aside the court of appeal’s decision and
restore the federal high court judgement.
Consequently, the supreme court set aside the decision of
the court of appeal and restored the trial court’s judgement.
IMPLICATION OF THE RULING ON CANDIDATE NOMINATION
Although the judgement does not name or disqualify any
individual candidate in the 2027 elections, the legality of a party’s
nomination process may now be assessed in light of the restored provisions.
For some candidates who have already emerged, the
implications are more fact-specific. Their nominations would have to be
assessed based on whether their parties complied with the applicable
membership-register requirements and whether the nomination process complied
with section 84(2).
Politicians whose candidature may be affected by the supreme
court ruling include Donald Duke, the Peoples Redemption Party (PRP)
standard-bearer for the 2027 presidential election and former Cross River
governor; Kingsley Chinda, All Progressives Congress (APC) governorship
candidate in Rivers; Isa Pantami, Peoples Democratic Party (PDP) governorship
candidate in Gombe; Ovie Omo-Agege, Delta central senatorial candidate of the
Nigeria Democratic Congress (NDC); and Victor Ochei, his Delta north counterpart.
DONALD DUKE
Duke joined the PRP shortly before its May 25 presidential
primary and was handed the ticket. Subsequently, Yakubu Kingsley, a PRP
aspirant, filed a suit at the federal high court challenging the former
governor’s candidacy.
Kingsley alleged that Duke was not a PRP member when the
party submitted its membership register to INEC on May 4 — 21 days before the
primary election was conducted. Judgement has been reserved for November 2.
KINGSLEY CHINDA
On May 21, Chinda, an ally of Nyesom Wike, minister of the
Federal Capital Territory (FCT), emerged as the APC gubernatorial candidate for
Rivers state for the 2027 elections.
The lawmaker, who represents the Obio/Akpor federal
constituency of Rivers, stirred controversy after appearing before the APC
screening panel days before the party’s governorship primary, without formally
announcing his defection from the PDP to the ruling party.
His resignation as minority leader of the house of
representatives was made public in June, with Tajudeen Abbas, speaker of the
green chamber, saying the letter was dated April 23, 2026.
It was unclear at the time whether Chinda had also resigned
from the PDP and his name was included in the APC membership register submitted
to INEC.
ISA PANTAMI
Pantami withdrew from the APC governorship primary on May
19, left the party and joined the PDP, where he emerged as the Gombe
governorship candidate through a voice-affirmation process.
Hamisu Mailantarki and Usman Garry, governorship aspirants,
rejected the former minister’s candidacy on the grounds that he was not among
the four candidates who purchased nomination forms and did not participate in
the screening.
Last week, the federal high court in Gombe nullified
Pantami’s nomination and ordered a fresh primary. The PDP has now scheduled
September 29 for a fresh primary, but it is uncertain if the former minister
will contest, as speculation swirls that his name was not included in the PDP
membership register presented to the electoral umpire.
OVIE OMO-AGEGE
Omo-Agege contested the APC’s Delta central senatorial
primary in May but lost to Ede Dafinone. Following his defeat, the former
deputy senate president resigned from the APC on May 22, 2026, and joined the
NDC.
Within days, the NDC granted him a waiver to contest the
Delta central senatorial ticket, which he secured through a consensus
arrangement.
His case raises questions about the legality of his
nomination in light of the restored sections 77 and 84.
VICTOR OCHEI
Like Omo-Agege, Ochei, former Delta state house of assembly
speaker, left the APC after its nomination process was concluded and joined the
NDC in May 2026.
On May 28, the NDC approved a waiver for him to contest the
Delta north senatorial primary, and he secured the ticket.
There are several other candidates across different parties
whose candidature may be affected due to the supreme court’s judgement.
However, it is important to note that, in law, prior
membership in another political party does not, by itself, disqualify a person
from subsequently seeking nomination with another party.
In May, the house of representatives amended section 77 of
the Electoral Act, which deals with political party membership, to criminalise
dual membership of political parties.
Under the proposed law, individuals found guilty of
belonging to more than one political party simultaneously will face a fine of
N10 million and a maximum prison term of two years.
But the senate did not concur with the amendment, so it was
not transmitted to President Bola Tinubu for assent.
According to Yusuf Manjo, a lawyer and policy specialist,
the proper legal questions are whether the candidate met the applicable
requirements for party membership, participated in the relevant nomination
process, emerged through a valid primary, and satisfied the statutory
requirements for nomination.
Manjo said the issue of party waiver also requires careful
distinction.
“A political party may, where its constitution or applicable
guidelines permit, waive certain internal party requirements. However, a
political party cannot simply waive a mandatory requirement imposed directly by
an Act of the National Assembly,” Manjo said.
“Consequently, whenever the expression ‘waiver’ is used, the
first question should be: What requirement was waived, and where does that
requirement originate?
“If it is merely an internal party requirement, the party’s
constitution and guidelines may determine whether waiver is permissible.
However, if it is a mandatory statutory requirement under the Electoral Act, a
party cannot override the law by calling it a waiver.”
CAN INEC REMOVE A CANDIDATE NOMINATED IN BREACH OF THE ACT?
The lawyer said while INEC has administrative
responsibilities in relation to elections, disputes over the legality of a
particular nomination may be subject to judicial proceedings under the
Electoral Act.
“A general declaration that a statutory provision is valid
is therefore not the same thing as a judicial declaration that a named
candidate violated that provision,” Manjo said.
Another key issue is the distinction between an initial
party primary and a subsequent replacement or fresh primary.
Section 31 of the Electoral Act allows a party to substitute
a candidate who willingly withdraws not later than 90 days to the election.
Manju said where an initial candidate withdraws or is
otherwise lawfully replaced, the legal circumstances surrounding the subsequent
nomination must be examined.
“The relevant questions may include whether the withdrawal
was valid, whether a fresh primary was required, whether one was properly
conducted, which membership register applied, whether the aspirants were
qualified to participate, and whether the substitution complied with the
Electoral Act and applicable party rules,” Manju said.
Manju said the legality of a particular substitution cannot
be determined solely by referring to the supreme court’s general judgement on
sections 77 and 84.
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