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A fortnight ago, I wrote a piece titled “Exploring Legal Windows for Defeated Aspirants in Nigeria’s Party Primaries.” In that intervention, among the issues interrogated was the competence of the Independent National Electoral Commission (INEC) to impose a timetable for the conduct of party primaries on political parties. My position was firm and unequivocal. I argued that the exercise of such power by the Commission is ultra vires its statutory authority. Indeed, I asserted that the act of pigeonholing political parties into a prescribed timeframe for the conduct of their primaries constitutes an unwarranted intrusion into the internal affairs of political parties and an infraction on their autonomy. Political parties are not agencies or parastatals of government, and neither are they appendages of the INEC.
The point was made forcefully that what the law permits the Commission to do is to ensure that the submission of candidates’ names does not exceed 120 days before the conduct of the general election. Up until that point, political parties are at liberty to determine their own schedules and timelines without interference from the Commission. The Electoral Act, in my respectful view, does not donate to INEC the power to dictate when political parties must conduct their primaries. As fate would have it, just as that publication appeared in my column, the judgment of My Lord, Justice M. G. Umar, in Youth Party v. INEC was delivered. Significantly, the judgment aligned completely with my reasoning. The learned trial judge held that INEC lacked the legal competence to impose timelines for party primaries beyond what is expressly provided in the Electoral Act.
However, while the debate on the implications of that decision was still raging, another court of coordinate jurisdiction, that is, another division of the Federal High Court, presided over by Honourable Justice James Omotosho in the case of SDP v. INEC, rendered a partially contradictory judgment. In one breath, the learned judge agreed that the 120-day submission period prescribed by law cannot be compromised.
Yet, in the same judgment, he simultaneously held that INEC possesses the authority to issue regulations and guidelines, particularly regarding the timetable of electoral activities, that impairs the liberty given to political parties on the conduct of party primaries. This has automatically and naturally generated confusion concerning when political parties may or may not conduct their primaries. Beyond the confusion lies the controversy that the latter judgment has generated among legal practitioners, political stakeholders, and electoral observers generally. I have read several interventions on the issue. While some commentators align with my position and that of Justice M.G. Umar, others have taken a contrary view. This intervention is not intended to be a post-mortem or an autopsy of the judgment delivered by Justice Omotosho, nor is it meant to constitute a formal review of that decision. Rather, my objective is to examine the rationality or otherwise of the conclusions reached therein and to highlight the practical consequences that may flow from such reasoning. Before delving into the substance of this discussion, however, permit me to appreciate the detailed legal analysis offered by Festus Okoye, who is not only a distinguished legal practitioner but also a former National Commissioner of INEC with vast experience in electoral administration.
His position, which additionally relies on the decision of the Supreme Court in INEC v. NNPP, aligns completely with my reasoning and that of Justice M.G. Umar. In that case, the apex court effectively denigrated guidelines of the nature presently in contention and invalidated actions similar to those now being undertaken by the Commission. It is therefore unfortunate that the Commission, under the leadership of a Chairman who is himself a Senior Advocate of Nigeria and from whom much is expected on matters of law, appears unwilling to accept the implications of that authoritative pronouncement, assuming hitherto he was ignorant of the legal position but what now after? A similarly brilliant position was advanced by Monday Ubani, SAN. I also read the intervention of Dr Atake, which, as correctly observed by Ubani, regrettably missed the central issue in contention. More troubling, however, is the fact that despite the clear pronouncements in the NNPP case, INEC has elected to appeal the decision. Beyond what I consider an error of judgment lies in a series of practical consequences that the Commission ought to have perceived before embarking on this appellate adventure.
The consequences are potentially unimaginable and could ultimately derail the democratic transition process itself. Wisdom, in my humble view, should have dictated compliance rather than confrontation. INEC’s decision to appeal may amount to institutional self-destruction. Assuming, for instance, that the appellate court ultimately rules in favour of the Commission, what becomes of those political parties that have already relied upon the judgment of Justice Umar and consequently refrained from conducting their primaries within the period prescribed by INEC? Would such parties be shut out of the electoral process?
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Would that not further inflame an already heated political environment and create conditions capable of undermining democratic stability? This is one of the inherent dangers in the unfolding developments. I shall later itemise some of the potential consequences, but suffice it to say at this stage that the boat may already have sailed, the remnants being regrets. Again, the preliminary point that must be made is that the latter judgment of Omotosho J signals what appears to be the resurrection of judicial anarchy. One would have thought that, following the repeated interventions of the National Judicial Council (NJC) and the various Heads of Court on the dangers of conflicting judgments, the era of courts of coordinate jurisdiction issuing contradictory decisions on the same subject matter had been permanently buried.
Unfortunately, here we are once again. As Professor Chidi Odinkalu recently observed, Nigeria narrowly escaped the catastrophic consequences of similar judicial contradictions in the past, particularly in 1993. Though those developments eventually contributed to the truncation of the then democratic experimentation, the country may not be so fortunate this time around, particularly given the heightened political tensions currently pervading the polity. It is therefore not surprising that Femi Falana, SAN, has called for an investigation by the National Judicial Council on the conflicting judgments. Much as I would have liked to share the sentiments expressed by Professor Ojukwu, SAN on judicial independence, understandable as that may be, the looming dangers ahead compel a more cautious and pragmatic approach. Be that as it may, let me now descend into the specific areas of interest in this discourse. First, permit me to re-emphasise the fundamental principle that courts exist to advance democratic values through their pronouncements and not to undermine them. This explains why Indian jurisprudence remains a beacon of hope for emerging democracies around the world. The Indian courts have consistently utilised judicial interpretation to deepen democratic principles and strengthen democratic institutions. Reference can be made to the book titled, “10 Judgments That Changed India” by Zia Mody.
One expects no less from our own courts. I must readily concede that in recent years, our apex court, acting as a court of policy, has increasingly demonstrated an appreciation of this responsibility. The decisions in the Naira Redesign Case and the Card Reader Case readily come to mind. It is against this backdrop that I expected a purposive interpretation of the relevant provisions of the Electoral Act by the concerned judicial officers. I strongly recommend a digest of the work of Aharon Barak on Purposive Interpretation in Law. Now assuming, without conceding, that Justice Omotosho is correct, the implication would be that political parties that have conducted their primaries would merely preserve or embalm the names of their candidates until close to the expiration of the 120-day submission deadline before uploading them to INEC. If that is the case, what then is the practical purpose of compelling parties to conduct primaries several months earlier when the law itself permits the submission of candidates’ names much later? Would such an exercise not become meaningless?
More fundamentally, what is the rationale behind the statutory provision permitting submission of candidates’ names up to 120 days before the general election if not to afford political parties sufficient time to organise their internal affairs, resolve disputes, and fix timelines that are convenient to them? Had the legislature intended to circumscribe the period within which primaries must be conducted, would it not have expressly provided so? We must never forget the golden rule of statutory interpretation: expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another. By specifically providing a deadline for submission of candidates’ names, the legislature must be taken to have deliberately left political parties with the discretion to determine when to conduct their primaries by not legislating it. That is what purposive interpretation commands.
The argument that INEC requires sufficient time to process nominations is equally unpersuasive. That argument is completely defeated by the unanimous understanding that political parties are legally entitled to submit their candidates’ names as late as 120 days before the election. What if a party conducts its primary election about 180 days to the election but refuses to submit the list of its candidates until 120 days to the election? Would it have done anything wrong? Indeed, during the legislative process leading to the enactment of the Electoral Act, INEC itself voluntarily accepted the 120-day period in place of the earlier proposal of 180 days. Having accepted that period as sufficient for processing, it is difficult to understand the legal or practical basis for insisting on additional restrictions.
Equally implausible is the argument that the timetable is necessary to provide political parties with sufficient time to resolve disputes arising from their primaries. A political party is perfectly entitled to commit political suicide if it chooses to allow its internal disputes to fester until the submission deadline passes. That is not the business of the Commission. To insist otherwise is to transform the regulator into a meddlesome interloper in matters that properly belong to political parties. In researching comparative democratic practices across the globe, I was unable to identify any meaningful democracy, particularly among the advanced democracies, where electoral management bodies dictate the timing of party primaries in the manner presently being attempted in Nigeria. The global best practice is to permit political parties to determine convenient timelines for themselves, provided they comply with the statutory deadline for submission of candidates to the electoral regulator. Argentina experimented with a version of such regulation, but the arrangement has reportedly been suspended since 2025. Uruguay remains the only jurisdiction still experimenting with similar practices, and even there, the consequences remain subjects of ongoing debate. There is yet another dangerous dimension to this issue. Allowing political parties to keep candidate lists in abeyance until close to the expiration of the 120-day period may inadvertently create incentives that are profoundly unhealthy for our political culture. Since the law permits substitution only in cases of voluntary withdrawal or death, an overly restrictive framework could encourage desperate actors to seek extra-legal means of creating vacancies. Given the unfortunate character of our politics, such a possibility cannot be dismissed lightly. To borrow a popular expression, it may amount to an invitation to murder. In summary, beyond the legal afflictions surrounding the judgment in SDP v. INEC, the decision itself appears internally contradictory, seeking with one hand to give what it simultaneously takes away with the other. More importantly, the confusion generated by the conflicting judgments is unhealthy for Nigeria’s democracy and potentially dangerous for the country’s political stability. INEC should therefore immediately reconsider and abandon the appeal. Equally important, the National Judicial Council must proactively take charge of the adjudicatory process relating to politically sensitive cases and ensure greater coordination in the management of election-related litigation.The stakes are simply too high for the country to continue down the path of uncertainty. Democracy thrives on clarity, predictability, and institutional restraint. Once those pillars begin to crumble, the entire democratic edifice is imperilled. Nigeria cannot afford that risk at this critical stage of her democratic journey. A stitch in time saves nine.
