By Lawal Farouq Ayobami[1]

INTRODUCTION

The electoral climate in Nigeria is anchored with constant metamorphosis. These changes are brought to life by the National Assembly performing its law-making function vested by the Constitution of the Federal Republic of Nigeria 1999 (as amended). On the 19^th February 2026, President Bola Ahmed Tinubu, GCFR passed the Electoral Act 2026 into law and repealed the Electoral Act 2022. The 2026 Act introduced a lot of development which are pivotal to the democratic progress Nigeria need and plans to implement. Amongst the lots, this article examines the constitutionality of the provision of section 77(2), (4), and (7) of the Electoral Act 2026 which has now mandate submission of membership register to Independent National Electoral Commission (INEC) within statutory stipulated time and the conduct of primaries, convention and congresses be done based on the submitted membership register. The failure to comply with mandatory submission of the membership register to INEC, the Act stipulates that such political party shall not be eligible to field a candidate for that Election. This punitive provision has stirred constitutional debates amongst constitutional law scholars and lawyers alike.

EMPIRICAL VIEW OF SECTION 77 ELECTORAL ACT 2026

 Section 77 in the exact words of the Electoral Act 2026 provides:

• A political party registered under this Act shall be a body corporate with perpetual succession and a common seal and may sue and be sued in this corporate name.
• A party shall maintain a digital register of its members containing the name, sex, date of birth, address, State, Local Government, ward, polling unit, National Identification Number and Photograph in both hard and soft copies.
• Upon registration, a membership card shall be issued to the members.
• Each political party shall make such register available to the commission not later than 21 days before the date fixed for the party primaries, congress or conventions.
• Only members whose names are contained in the register shall be eligible to vote and be voted for in the party primaries, congress or conventions.
• A party shall not use any other register for party primaries, congresses and conventions except the register submitted to the commission.
• A party that fails to submit the membership register within the stipulated time shall not be eligible to field a candidate for the election.

By the literal interpretation of the above section, it is now mandatory for a political party to maintain a register of members (digital or otherwise), and this register of members must be submitted to the INEC not later than 21 days before the date fixed for party primaries, congress or conventions.[2] Only members contained in the Register of members will be allowed to vote and be voted for during primaries, conventions or congresses. Ultimately, any party that fails to submit its membership register within the 21-day period, INEC shall not allow such political party to participate in the Election.

The question which begs an answer is the constitutionality of this provision that disqualifies a party from participating in an election if it fails to comply with the requirement under section 77(4) of the 2026 Act.

The controversy doesn’t lie with the entire section; however, it is limited to the joint interpretation of subsections (2), (4) and (7). The strict requirement that only political parties that present their membership register to INEC not less than 21 days of their primaries and conventions will be allowed to participate in the GENERAL ELECTION. Will the disqualification of the political party not amount to the disqualification of the candidate under the platform? The constitutionality of this statutory sub-provision is in issue. There are two popular divergent opinions on this issue, which this article has labelled as the back and fore view of section 77(2),(4) and (7) of the Electoral Act.

BACKVIEW ON THE CONSTITUTIONALITY OF SECTION 77(2), (4) & (7) ELECTORAL ACT 2026.

 The Constitution of Nigeria evidently guarantees every aged citizen the right to vote and be voted for.[3] The right is boldly entrenched in the Nigerian constitutional doctrine and the principle of Universal Adult suffrage[4].

The National Assembly, in exercising it law making functions, must ensure that it is in strict compliance with the provisions of the constitution. It must act in accordance with the constitution; otherwise, the purported legislation will be null and void to the extent of its inconsistency.[5]

In AG Bendel v. AGF [6], the apex court shared its opinion on the exercise of legislative power by the National Assembly in the light of constitutional consistency, held thus:

“The legislative powers of the National Assembly cannot be exercised inconsistently with the constitution of Nigeria. When such is done, the exercised power shall be invalid to the extent of its inconsistency”.

On the first issue, whether the National Assembly can pass a law which affect the internal affairs of a political party. The Supreme Court made it clear in the famous case of INEC v. MUSA[7], that:

“The registration of political parties in Nigeria is governed by the provisions of the constitution of Nigeria, 1999. This is the sense of the ultimate source of any registration or guideline or exercise of power relating to registration of parties must be traced to the constitution but not in the sense that the constitution itself must make direct provisions relating to registration or its mechanism”.

The court of appeal in the same case held thus:

“INEC and National Assembly cannot constitute themselves exception. Once these political association complies with the simple requirement contained in the constitution, there is no pressing need for the National Assembly to make additional enactment to improve what were in the constitution and the INEC shall observe and respect same, namely, by recognizing those association as political parties through formal registration as of right. Those political Associations have acquired vested rights provided by the constitution, the Supreme law of the land. Those rights cannot be possibly divested from them either by the Electoral Act or INEC. And any body, institution or law made contrary to what the constitution provides is a nullity to that limit”.[8]

The Supreme Court further stated that the National Assembly cannot legislate inconsistently with the provisions of sections 222 and 223 of the constitution, but can legislate for matters outside the provisions of either section 222 or 223, provided there is legislative authority derived from other provisions of the constitution.[9]  By the interpretation of section 222 of CFRN (as amended), no political party will be able to carry out the function of a political party, which is, fielding a candidate for elections, unless the conditions in section 222 are fulfilled.

Thus, any additional requirement by INEC or the National Assembly that disqualifies a political party from participating in an election is a violation of the members of the party’s right to freedom of Association and the right to be voted for, as guaranteed by the Nigerian constitution.[10] The Supreme Court has held in a plethora of cases that constitutional requirements for action or activities are not elastic and cannot be taken outside the context of what is required. Meaning no addition, no subtraction – just the conditions required.[11]

It is logical to hold the position that the disqualification of a political party amounts to the disqualification of a candidate. In the Nigerian electoral clime where the factor of time is critical, assuming without conceding, a party is unable to meet up with the deadline for the submission of the membership register as required, the party automatically loose the right to partake in the General Elections. The effect is that any candidate under the flagship of the party will automatically lose the right to contest because as at such time, no party will be willing to accept new members or estranged candidates from the disqualified party. This is simply casting a stone to kill two birds. The disqualification of the party affects both the political party and the candidates which they intend to field at the General Elections, depriving both of their right to be voted for.

From another perspective, the only constitutional ground for the disqualification of a candidate recognised is provided under section 65 & 66 (House of Assembly), 106 & 107 (National Assembly), 181 & 182 (Governor), and 135 & 137 (President). In fact, the constitution mandates that any candidate who wants to participate in an election must be sponsored by a political party.[12] Where the political party is denied participation, what becomes of the candidate?

The view of those against the provision of section 77(7) of the Electoral Act is that it violates the right of members of the disqualified party to freedom of association and their right to be voted for as guaranteed under the 1999 constitution. By the authority of decision of the Supreme court in INEC v Musa on the provision of section 222 of CFRN alongside, section 65 & 66, 106 & 107, 181 & 182, 135 & 13, and section 77(2) & 171(2) CFRN 1999 (as amended), section 77(7) of Electoral Act is unconstitutional and therefore null and void, as it imposes additional require of qualification for a political party to perform party function which is not recognized by the constitution.[13]

 FOREVIEW ON THE CONSTITUTIONALITY OF SECTION 77(4) – (7) ELECTORAL ACT 2026.

The argument of advocates of the constitutionality of the sub-section of the electoral law in issue is predicated on the view that the National Assembly has the powers to confer INEC with the authority to enable the commission to ensure that political parties observe the practice of internal democracy, including the fair and transparent conduct of primaries, party congresses and party conventions.[14]

 The constitution is evidently clear on the non-absoluteness of the Fundamental Rights of freedom of association. Section 40 provides that:

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest: provided that the provision of this section shall not derogate from the powers conferred by the Constitution on the Independent National Electoral Commission with respect to political parties to which that commission does not accord recognition”.

This provision expressly provides that, notwithstanding the right of association guaranteed by the constitution, powers conferred on INEC sourced from the constitution with respect to political parties do not become invalid on the mere fact that it contravenes the provision of section 40 of the constitution.

 The constitution provides further that the National Assembly may make law which seeks to protect the rights of other persons. In the exact wordings of the constitution, under section 45(1)(b), that provides thus:

“Nothing in section 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society for the purpose of protecting the rights and freedom of other persons”[15]

Putting section 40 and 45(1)(b) of the constitution side by side with section 77(7) Electoral Act 2026, viz. a viz section 222, section 65 & 66, section 106 & 107, section 181 & 182, and section 135 & 13, there is no inconsistency. The draftsman’s literal intent in mandating political parties to submit their membership register to INEC is to foster transparency, accountability and monitor the procedure of the internal affairs and presentation of candidates for participation in the General Election.

Beyond elections, good governance is a cardinal facet of the outcome of elections, which Nigeria has not been able to achieve due to the “arrangee system” of political parties presenting candidates who have resources to bribe their way into party candidacy rather than those who have development and progress to offer Nigeria. The Constitution in section 228(b)[16] empowered the National Assembly with the power to confer on INEC any power as may be necessary or desired for the purpose of effectively ensuring that political parties observe the practice of internal democracy, including the fair and transparent conduct of party primaries, party congress and party convention. The entirety of section 77 of the Electoral Act 2026 was inspired by section 228(b) CFRN with the view of protecting the political and civil rights of members of political parties from the whims and caprices of a powerful few in their midst. To ensure that the internal democracy of the party does not die and its sustained, and the constitutional political and civil rights are protected.

OBSERVATION ON THE DEBATE OVER SECTION 77 OF THE ELECTORAL ACT 2026

In the interpretation of statute, to determine whether or not a statute is inconsistent with the constitution, the court has in plethora of cases, looked at the intention of the lawmakers to determine whether or not they actually want to play foul of the constitution. Where the result of the inquiry is affirmative, the court is inclined to declare such a foul provision of the statute unconstitutional, while where it is negative, the court declares otherwise.

To see if truly the provision of the electoral law in issue is unconstitutional, the constitutional purpose of registration of a political party with INEC must be examined vis-à-vis the statutory purpose of restriction on political party failure to submit its register of members to INEC. Are the purposes conflicting or complementary in nature? Where the interpretation of the purposes conflicts, the position of the law is clear the flag of unconstitutionality is raised. Where the purposes are basically complementary in nature, the flag of unconstitutionality is not raised.

Our view as writers of this Article on this debate is that, critically analyzing section 40 and 45(1)(b), section 228(b) of the constitution side by side with section 77(7) Electoral Act 2026 viz a viz section 222, section 65 & 66, section 106 & 107, section181 & 182, and section 135 & 137, section 77(7) Electoral Act 2026 does not bare the mark of constitutional inconsistency, as the draftsman’s literal intent in mandating political party to submit their membership register to INEC is to foster transparency, accountability and monitor the procedure of the internal affair which pave way for the presentation of candidate for participation in General Election.

Thus, the statutory punitive mandate of a political party under section 77 of the Electoral Act 2026 does not violate the constitutional requirement of registration, it complements such provision.

In AG Lagos State v. AGF[17], the Apex Court, commenting on the constitution vested power on the National Assembly to make law held thus:

“The ambit of the legislative powers of the Federal Republic of Nigeria vested in the National Assembly is defined in subsections (2), (3) and (4) of the section 4 of the Constitution as follow: “(2) the national assembly shall have power to makes laws for the peace, order and good government of the Federation or any part thereof.”     

Section 77 of the Electoral Act 2026 is evidently, in view of the above, calculated to promote good governance within our Electoral framework while ensuring transparency and accountability in the process of presenting candidates for general elections.

RECOMMENDATION

In light of the above debate and to finally provide an adequate and final solution, we the writer of this article make the following recommendations:

• National Assembly must invoke the constitutional amendment procedures under section 9 of the constitution to amend the provision of section 222 of the constitution to accommodate the prevalent electoral realities. Section 222 of the constitution should be made to expressly provide for compulsory submission of membership register as a condition precedent for participation in general election as a political party.
• The Constitution, section 222 should also be amended to include an omnibus provision that empowers national assembly to make law from time to time to add but not subtract from the requirements of electoral participation of a political party.
• The constitution, section 222 should also be amended to categorically provide that an Act of National Assembly that is reasonably justifiable in a democratic society shall not be declared void on the basis that it is not covered by with the provision of section 222 of the CFRN 1999 (as amended).

CONCLUSION

The amendment of the Electoral Act by the National Assembly indeed reviewed fundamental architecture of the Nigerian electoral processes, affecting both pre-election activities, election activities and post-election activities.  The innovation of section 77 of the Electoral Act will indeed help prevent the mal-practices of falsification of membership and manipulation at the primaries, conventions and congresses of political parties. This in turn strengthen the integrity of intra-party democracy and by extension helps the commission monitor the process political party present candidates for general election. Any   political party that does not uphold the basic credence of internal democracy and the requirement of submission of membership register to INEC shall not be entitled to participate in the general election. The issue that section 77(7) Electoral Act 2026 is unconstitutional has been laid to rest by the Article – being a law that is reasonable justifiable in a democratic society and its in no way a derogation of the constitution.

[1] Lawal Farouq Ayobami, BSC (Mass Comm.), LLB (1^st Class), BL (in view).

[2] Electoral Act 2026, section 77(2), (4) and (7).

[3] Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended), section 77(2) & 171(2)

[4]  Universal Declaration of Human Rights 1948, Article 21.

[5] Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended), section 1(3).

[6] [1983] NGSC 12; LPELR – 605 SC.

[7] (2003) 3 NWLR (pt 806) 72 SC.

[8] INEC v. MUSA (2002) 11 NWLR (pt 778) 223 CA.

[9] INEC v. MUSA (Supra) SC.

[10] CFRN 1999 (as amended), section 40 and 77(2) and 117(2).

[11] ANPP v. Goni (2012) CLR 2(e) (SC); Dora Akunyili v. Chris Ngige (2012) LLJR – CA

[12] Ibid, section 66(d), 106(d), 181(d), and 135(d).

[13] Ibid, section 1(3); AG bendel v. AGF (Supra); INEC v. Musa (Supra).

[14] Ibid, section 228(b).

[15] Ibid.

[16] CFRN 1999 (as amended).

[17] (2003) LPELR -6220 (SC).; FRN V. Nwatalari (2017) LPELR – 43782 (CA);