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•Confusion, uncertainty loom as ruling sets tribunal landmines for defectors, latecomers
By Omoniyi Salaudeen and Lukman Olabiyi
The 24 September Supreme Court ruling on Section 77 of the Electoral Act 2026 has finally settled the controversy over political parties’ autonomy in relation to membership registers and internal electoral processes, returning strict statutory discipline to Nigeria’s candidate nomination system.
The apex court set aside the 16 July 2026 judgement of the Court of Appeal, which had voided several restrictive sections of the Electoral Act as unconstitutional, and fully restored the statutory requirements for candidate nominations and party primary processes. By overturning the lower court’s decision, the Supreme Court firmly re-established the mandatory requirement for parties to submit verified membership registers to the Independent National Electoral Commission (INEC) at least 21 days prior to any primary, congress or convention. Only individuals whose names were included in that submitted register are eligible to vote or contest.
Legal experts say the judgement does not execute automatic disqualifications or issue sweeping orders against candidates already published by INEC, but its operational impact is immediate and far-reaching. It creates a potent legal threshold for aggrieved aspirants and opposition strategists, exposing politically sensitive nominations to high-stakes judicial challenges.
Senior Advocate of Nigeria and former Second National Vice-President of the Nigerian Bar Association, Dr Monday Onyekachi Ubani, SAN, said the ruling had validated the National Assembly’s framework and strengthened INEC’s guidelines. According to him, the implications are far-reaching for aspirants, particularly those who seek to join a party shortly before its primary.
Ubani said: “The Supreme Court has finally laid to rest the issue of party autonomy. If you want to run for an election or be a voter, your name must be in the electronic register of the political party. The law says they must submit that register 21 days before your primary, convention or congress. If you don’t do that, of course your party will be excluded from having a candidate for the election.”
He explained that the National Assembly, through the Electoral Act, had established the legal framework governing party membership and nomination, whilst INEC subsequently issued guidelines to implement the statutory requirements. By upholding the relevant provisions, the Supreme Court has also strengthened the legal basis for INEC’s guidelines.
A party, he said, cannot subsequently rely on a different membership register from the one submitted to INEC within the stipulated period.
He noted that Section 84(2) of the Electoral Act provides a legal avenue for an aspirant to challenge non-compliance with the law and INEC’s guidelines.
“Subsection (6) says you cannot use another register other than the one you have submitted earlier. So, if at the end of the day the party chooses to use another register different from the one it submitted, that again becomes an issue for which an aspirant can go to court under Section 84(2) to say this man has not complied with the Act itself or the guideline of INEC,” he said.
Ubani explained that the provision represented a significant departure from the 2010 Electoral Act, which did not contain a comparable penalty for failure to submit membership registers. He recalled allegations involving some political parties during the 2023 elections over failure to submit their registers to INEC, saying the 2022 amendment introduced consequences for such non-compliance.
“Under the 2022 Act, they made that amendment and took care of it. There are consequences if you fail to submit your register prior to your congress, convention or primary election. So it has implications,” he said.
On whether INEC can now unilaterally remove already-published candidates, Ubani cautioned that the judgement is not self-executing.
“I don’t think that judgement itself is self-executing. I don’t think INEC will now begin to look into any register, especially for those names that have been published, and say, ‘Remove this name.’ INEC on its own cannot, because that will be an exercise of judicial function. It’s only the judiciary that has that right. It’s only an aspirant who has locus standi that can go to court and say this person did not comply, his name is not in the register,” he stated.
According to him, pre-election disputes are subject to statutory time limits. “But of course, remember that 14 days must have elapsed. So if you want to take it now as a pre-election issue, you are statutorily barred, unless the matter is already pending,” he added.
On the growing practice of late defections, Ubani maintained the ruling could make such movements more difficult, because a prospective aspirant’s name must appear on the register submitted 21 days before a primary.
“That was the reason for this enactment by the National Assembly. It was there initially, but there were no consequences. But that can no longer happen in the light of this particular provision that says your name must be in the register, and that name must have been submitted 21 days before the primaries. So, if your name is not in the register, of course it becomes an issue for which any aspirant can challenge,” he said.
He clarified that the responsibility for compiling and maintaining membership records rests with parties, not INEC.
“Not INEC. It is the party. The party will take your name, your address, your gender and some other requirements. Address is very key, your name is very key, your gender and your state. Those are the requirements. So it is the party that keeps the record and then submits,” he clarified.
Late defection now impossible
Lagos-based human rights lawyer, Kabiru Akingbolu, said the judgement had effectively closed the door on late defections by politicians seeking to contest the same elective position on another platform. He argued: “The judgement has made it impossible for people to cross from one party to another at the dying stage or do a primary in Party A and move to another political party to contest for the same office and get the ticket. There can be a kind of arrangement between a placeholder or somebody who is not a strong candidate and say, ‘Oh, I have withdrawn,’ since the Electoral Act allows you to withdraw. But with this judgement, such an arrangement becomes difficult.”
He explained that the timing for submission of candidates’ names and the legal requirements governing party membership would now make late movement practically impossible.
He, however, noted the immediate impact on the 2026 electoral cycle and the 2027 general elections may be limited because the relevant primaries had already been concluded and the 14-day window for pre-election matters had lapsed in many cases.
“The judgement will not change so much in this 2026 election or 2027 election because you have just seven days and 14 days to file your pre-election matter, and the primaries for all the political parties had lapsed,” he said.
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He also questioned who would have the locus to challenge alleged violations.
“There is no way anybody can just come and file and challenge the nomination of anybody. More so, who is going to be the plaintiff or the claimant, depending on who will sue in court, and who will sue and complain to the court about the wrongdoing of the party?” he asked.
According to him, the law recognises an aspirant as a person who has participated in a party’s primary election, raising questions about the ability of outsiders to challenge a nomination.
“In this day where democracy has almost been turned upside down, all the norms and ideas of democracy are no longer there,” Akingboolu said.
Not retrospective
Senior Advocate of Nigeria, Dr Abiodun Layonu, cautioned against treating the judgement as a retrospective application of legislation. He said the apex court had authoritatively affirmed the validity of the disputed provisions.
Layonu said the question of whether the Supreme Court’s decision would operate retrospectively should be distinguished from the general legal rule governing retrospective application of legislation.
According to him, legislation ordinarily does not operate retrospectively unless the law expressly provides otherwise, subject to applicable constitutional limitations.
He, however, drew a distinction between the operation of legislation and the effect of a judicial pronouncement.
“The significance of the apex court’s decision was that it had now authoritatively determined that the disputed provisions of the Electoral Act were valid. Because the provisions were already contained in the Electoral Act from the time it was enacted, the Supreme Court’s validation amounted to a judicial affirmation of their legal status rather than the creation of a new law.
“It would therefore be inaccurate to simply describe the judgement as giving the Electoral Act retrospective effect. Rather, the Supreme Court had determined the legal status of the provisions as contained in the legislation, meaning that conduct occurring after the enactment of the law could be subject to those provisions where applicable,” he said.
He also cautioned against assuming that an earlier Court of Appeal decision could automatically be relied upon by a candidate seeking to avoid the consequences of the Supreme Court’s pronouncement.
Reinforces compliance
Human rights lawyer, Ige Asemudara, said the judgement had reinforced the need for strict compliance with statutory requirements governing party membership and participation in primaries.
Asemudara described the decision as one that would reinforce compliance with established electoral rules, particularly requirements relating to party membership registers.
He argued that persons whose names were not contained in a party’s membership register within the period prescribed by law should not seek to participate in the party’s primary process, especially where aspirants dissatisfied with the outcome of a primary in one party subsequently moved to another party.
He maintained that the Supreme Court did not create a new law through its judgement, but interpreted existing provisions of the Electoral Act and determined their constitutional validity.
He therefore rejected the suggestion that the decision should simply be characterised as a retrospective application of the Act, saying its practical implications would arise in cases involving persons participating in the electoral process where their conduct falls within Sections 77 and 84.
Tribunal landmines ahead
While the judgement restores statutory discipline, its ultimate fallout will depend on the existence of valid pre-election suits filed within statutory windows. Because political parties conducted several internal congresses and primary elections under the temporary cover of the July Court of Appeal judgement, those processes now face significant legal uncertainties.
Opposition parties across states now view the judgement as an opportunity to challenge the validity of primary processes conducted under relaxed rules. Opposition strategists are now scrutinising party rosters submitted to INEC relative to defection dates, setting up tribunal landmines post-election even where pre-election challenges missed deadlines.
Under Sections 29, 32 and 88 of the Electoral Act, only a Federal High Court order arising from a valid pre-election suit can disqualify a candidate for non-compliance with nomination rules. For candidates like those whose tickets were cleared under waivers — such as the high-profile governorship ticket in Rivers State — the candidacy remains on the INEC portal for now, but rests entirely on whether rival aspirants filed within the constitutional 14-day window.
Ultimately, the verdict serves as a powerful reminder across party lines that electoral mandates remain inherently vulnerable when political expediency clashes with strict procedural law.
