Introduction
Nigeria's constitutional democracy is founded upon the supremacy of the Constitution. The Constitution of the Federal Republic of Nigeria, 1999 (the Constitution) sets itself apart from all laws and authorities and establishes its supremacy over other laws under section 1 by stating that the Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Under subsection 2, it distinguishes itself as the legal standard through which every law derives validity and where they fall short become null and void to the extent of that inconsistency.
The Constitution lays a foundation and sets the standard for elections, budgeting, governance, human rights and creates institutions and rules on how the arms and tiers of government interact and check each other. Under the Electoral Process, the Constitution sets up the Independent National Electoral Commission (INEC) and bestows on it the powers to register political parties and organise elections, among others. It also bestows the powers of law-making on the National Assembly, sets the standard of funding for INEC, sets qualifications for electoral positions, and sets up courts and tribunals that adjudicate on electoral matters.
In February 2026, the National Assembly passed the Electoral Act 2026 which was signed into law by the President, introducing major reforms aimed at strengthening Nigeria's electoral framework, improving political party administration, and enhancing democratic participation. The amendments addressed critical issues relating to party primaries, candidate nomination processes, internal party democracy, campaign finance regulations, the use of technology in elections, timelines for electoral activities, and the powers and independence of the INEC. The Act also introduced new compliance obligations for political parties, expanded provisions for transparency and accountability, and sought to improve citizen confidence in the electoral process ahead of the 2027 General Elections.
The Constitutionality of Section 77 of the Electoral Act 2026
Under the Constitution, the legislative powers of the Federal Republic of Nigeria are bestowed on the National Assembly, which consists of the Senate and the House of Representatives. The National Assembly has the power to make laws for the peace, order and good governance of the federation. It is pursuant to those laws that the Electoral Act 2026 was enacted.
One of the major provisions of the Electoral Act 2026 provides that political parties submit their register of members to INEC 21 days before congresses, conventions and primaries and that only members whose names appear on the register can vote and be voted for in congresses, conventions and primaries. It further states that political parties that do not submit will be ineligible to field a candidate for that election.
One of the cardinal rules of democracy, as enshrined in the Constitution, is the right to peaceful assembly and association, under which every person is entitled to assemble freely and associate with others. The constitution particularly provides for the right to form or belong to political parties, with the exception of the powers of INEC to deregister political parties under section 225A. A combined reading of section 77 of the Electoral Act 2026, Sections 4, 40 and 225A of the Constitution, shows that Section 77 may fall short of the standard for freedom of association as envisaged by the Constitution, as well as burden aspiring candidates and political parties with additional qualifications for contesting elections.
For clarity, Section 77 provides that, among others, a political party shall maintain a digital register of its members. Upon registration, a membership card shall be issued to the member. Furthermore, each political party shall make such register available to INEC not later than 21 days before the date fixed for the party primaries, congresses or conventions, and only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions. The section further states that a political party shall not use any other register for party primaries, congresses and conventions except the register submitted to the Commission and where a party fails to submit the membership register within the stipulated time shall not be eligible to field a candidate for that election.
While historically and even by the provisions of Section 77(3) of the Electoral Act, a political party is to issue a membership card to all registered members, the Supreme Court in Obi Vs INEC(No 1) [2023] 19 NWLR, when called upon to determine on the issue of membership of political party, held that "the issue of membership of a political party is an internal affair of the political party. It is not justiciable and the courts have no jurisdiction to entertain the same", and further held that the provision of section 77 (3) of the former Electoral Act 2022 which mandated political parties to submit the register of its members 30 days before its party primaries cannot be used to challenge membership of a political party, hence it is only a political that has the sole prerogative of determining who its members are.
In the same vein, qualifications for contesting elections across the board are provided by the Constitution, including age, education and the requirement of membership and only sponsorship of candidates by political parties. Hence, only the constitution provides for qualifications for contesting for office. This is reiterated by the Electoral Act, which states under section 85, thus:
" ... a political party shall not impose nomination, qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, EXCEPT as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution" (emphasis mine).
If the proof of membership of a political party is ultimately for the party to determine, as stated by the Supreme Court, and the right to associate under the constitution can only be restricted by INEC's powers to deregister political parties, what then is Section 77 trying to cure? In previous elections, aspirants seeking to contest elections would cross carpet when they were unable to get a ticket from a particular political party. This not only weakened political parties' structures but internal party democracy as well, leaving political parties weakened by disputes. While stopping cross carpeting, especially during the period for political primaries, is a valid reason for the existence of Section 77 (5), it must be done within the confines of the constitution. While Section 77 may look like a direct infringement of the Constitution on the face of it, it must be taken into consideration that mere exclusion from voting and being voted for does not mean exclusion from being a member of a political party. Political parties are still allowed to withdraw and substitute the candidate they submitted to INEC, and there is no restriction on who they substitute.
The Way Forward
There is a recent judgment ordering INEC to amend its timetable to bring it up to date with the timelines stipulated by the Electoral Act, which INEC has stated it will appeal. Ultimately, only the courts can decide on a constitutional breach. The provision of section 77 of the Electoral Act 2026 must be subjected to litigation as the provision of section 77(3) of the Electoral Act 2022 was, it is left for the courts and ultimately the Supreme Court to decide on an appropriate interpretation, taking into consideration the Constitution, Electoral Act and the thinking of the makers of both documents and put it to rest.
Finally, litigation must end at some point to allow INEC to conduct its duties of organising elections. Unending litigation brings uncertainty to the process and taints the integrity of elections.
