*Says Divergence Is Normal Judicial Development
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Senior Advocate of Nigeria and policy analyst M.O. Ubani, SAN, has waded into the growing controversy over the conflicting Federal High Court judgments on INEC’s 2027 election timetable, offering a detailed and balanced analysis that concludes the two decisions are not as contradictory as public commentary suggests, that the divergence between the two judges represents permissible judicial disagreement rather than misconduct, and that calls for sanctions against Justice Omotosho appear overstated.
In an article titled “Are We at a Judicial Crossroads with the Decisions of Justices Umar and Omotosho on INEC’s Electoral Guidelines?” Ubani acknowledged the intense constitutional and electoral discourse the two judgments have generated within legal circles but cautioned that a closer legal examination reveals “a more nuanced reality” than the media’s portrayal of outright contradiction.
Ubani identified what he described as the strongest common denominator between the two decisions: both Justice Umar and Justice Omotosho affirmed the supremacy of the Electoral Act 2026 over INEC’s administrative timetable and guidelines.
“Justice Umar held unequivocally that INEC cannot abridge statutory timelines created by Section 29(1) of the Electoral Act through administrative directives. Justice Omotosho similarly ruled that INEC cannot lawfully compress or override timelines expressly fixed by the Electoral Act,” Ubani noted.
He pointed out that both courts accepted the settled principle that administrative regulations derive their legitimacy from the parent statute and cannot supersede or contradict statutory provisions a principle deeply rooted in Nigerian administrative law and constitutional jurisprudence.
Ubani highlighted a significant point he said has been largely ignored in public commentary: both judges actually invalidated portions of INEC’s timetable.
While Justice Umar invalidated broader portions touching on party primaries, candidate nomination, substitution, campaign timelines, and publication of the final candidate list, Justice Omotosho nullified the specific nomination submission deadlines of August 29 and September 16, 2026, because they violated Section 29(1) of the Electoral Act.
“Therefore, both judges agreed that INEC crossed statutory boundaries in certain respects in the exercise of its administrative powers,” Ubani stated.
Ubani also challenged the public perception that Justice Umar totally stripped INEC of regulatory powers, noting that Umar’s concern was primarily with timelines that abridged statutory rights vested by the Act. Justice Omotosho was more explicit in affirming INEC’s authority, but neither judgment denied that INEC possesses administrative and supervisory powers over elections.
“Their point of disagreement lies in the extent of those powers and the manner in which they may be exercised by INEC,” Ubani clarified.
Ubani identified the principal area of irreconcilable disagreement: the scope of INEC’s authority to prescribe timelines for party primaries.
Justice Umar held that INEC lacks authority to prescribe when political parties must conduct primaries, reasoning that Sections 82 and 84(1) of the Electoral Act merely empower the commission to receive notices and monitor primaries, not dictate when they should be held.
Justice Omotosho disagreed, holding that election timetables necessarily include timelines for party primaries and that INEC’s constitutional responsibility to organise elections would become practically impossible if it lacked authority to structure the electoral calendar.
“This disagreement is essentially interpretative, as posited by Prof. Ernest Ojukwu, SAN. Justice Umar adopted a narrow construction of INEC’s powers, while Justice Omotosho adopted a broader interpretation,” Ubani observed.
He described the two approaches as reflecting distinct judicial philosophies: Justice Umar emphasised strict statutory fidelity, while Justice Omotosho emphasised institutional practicality and electoral functionality. “Such divergence is permissible within judicial jurisprudence,” Ubani stated.
On the membership register deadline, Ubani noted that Justice Umar invalidated the May 10 deadline and effectively extended the permissible period until September 2026, viewing it as an unlawful restriction on political participation and party mobility. Justice Omotosho upheld INEC’s authority to request membership registers and prescribe submission timelines, viewing it as an administrative necessity ancillary to election management.
“To Justice Umar, the May 10 deadline would negatively impact rights already granted to political parties and their candidates, rights which statutorily endure until September,” Ubani explained, identifying the divergence as critical to the broader debate about party autonomy and defection timelines.
On the nature of the reliefs granted, Ubani characterised Justice Umar’s orders as “sweeping and omnibus” broadly invalidating several interconnected aspects of the timetable while Justice Omotosho adopted “a more restrained approach,” surgically removing only those provisions directly inconsistent with the Electoral Act rather than dismantling the timetable framework entirely.
Ubani directly addressed the question that has dominated the public debate whether Justice Omotosho should be criticised or sanctioned for delivering a judgment allegedly inconsistent with Justice Umar’s earlier ruling despite being aware of it.
“With respect, that argument appears overstated,” Ubani stated.
He grounded his position in the fundamental principle that courts of coordinate jurisdiction can reach different conclusions. Both judges sit on the Federal High Court, and under Nigerian law, the decision of one Federal High Court judge is persuasive, not binding, on another judge of the same court.
Ubani outlined four circumstances in which a judge may respectfully disagree with a colleague’s reasoning: where the facts are different, the reliefs sought differ, the issues are differently framed, or the law admits of differing interpretations.
“It may therefore be difficult to categorise such divergence as judicial misconduct. In truth, it forms part of the natural development of legal jurisprudence,” Ubani stated.
He further noted that Justice Omotosho did not entirely reject Justice Umar’s reasoning in fact agreeing with Umar on the supremacy of the Electoral Act over INEC guidelines. Their principal divergence concerned the scope of INEC’s administrative authority.
“Accordingly, describing the judgments as ‘contradictory’ oversimplifies the jurisprudential nuances involved,” Ubani concluded on this point.
Ubani directly countered the calls for NJC investigation, stating that the proper constitutional mechanism for resolving conflicting interpretations is appeal, not reprimand.
“The beauty of common law adjudication lies partly in competing interpretations that are eventually harmonised by appellate courts,” he stated.
However, Ubani acknowledged that public outrage surrounding Justice Omotosho’s judgment is understandable given the history of criticism against conflicting judgments, forum shopping, and abuse of ex parte orders. He nonetheless maintained that “it remains debatable whether this decision falls squarely within the category of condemnable judicial misconduct commonly criticised in our legal system.”
Ubani framed the deeper issue raised by both judgments as one that transcends the immediate judicial disagreement: “How far can INEC go in regulating elections without trespassing into legislative territory?”
He described this question as sitting at the intersection of constitutional democracy, electoral certainty, party autonomy, and administrative necessity with Justice Umar leaning toward the protection of statutory rights and political flexibility, and Justice Omotosho leaning toward preserving electoral order and administrative manageability.
“Both concerns are legitimate within a constitutional democracy,” Ubani stated.
Ubani endorsed the call for both judgments to be appealed and ideally consolidated before the same appellate panel, describing this as the pathway that would provide clarity on the divergence.
“INEC has already appealed Justice Umar’s decision. That remains the lawful pathway. The decision of Justice Omotosho should likewise be appealed, and ideally both appeals should be consolidated before the same appellate panel in order to provide clarity on the divergence in the positions of the two Justices,” the senior advocate recommended.
In his conclusion, Ubani reiterated that the two judgments share more common ground than the public debate acknowledges.
“Both courts affirmed the supremacy of the Electoral Act over INEC guidelines. Both recognised INEC’s regulatory role. Both struck down portions of the timetable inconsistent with statutory provisions. Their divergence lies primarily in the breadth of INEC’s administrative authority and the permissible scope of electoral regulation,” he summarised.
“The disagreement between the two judgments is neither scandalous nor abnormal. It forms part of the natural evolution of constitutional adjudication in a democratic society. What some describe as contradiction may merely be the healthy tension inherent in judicial interpretation — a tension designed ultimately to be resolved through the appellate process,” Ubani concluded.
He expressed hope that the appeal processes would be concluded expeditiously “in order to stem any looming credibility crisis in the electoral system as 2027 approaches with increasing speed.”
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