The decision of the Supreme Court validating key provisions of the Electoral Act 2026 has produced divergent readings among senior members of the Bar as to its implications for political parties, candidates, and steps already taken while the provisions stood struck down.
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The apex court, on Thursday, 24 September 2026, upheld an appeal by the Independent National Electoral Commission and restored sections 77(5), 77(6), 77(7) and 84(2) of the Act, provisions concerned principally with political party membership registers and with the procedures for nominating candidates for elective office.
A seven-member panel led by Honourable Justice Adamu Jauro declared that the disputed provisions were not inconsistent with the 1999 Constitution, setting aside the judgment of the Court of Appeal of 16 July 2026, which had voided them following a challenge by the Zenith Labour Party.
The Abuja Division of the Federal High Court had earlier dismissed the party’s constitutional challenge in a judgment delivered on 5 May 2026. The Court of Appeal partially allowed the party’s appeal and declared the provisions invalid, prompting the commission to approach the Supreme Court.
“Approach It Differently From The Ordinary Rule”
A Senior Advocate of Nigeria, Dr. Abiodun Layonu, said the question whether the decision operates retrospectively must be approached differently from the ordinary rule governing the retrospective application of legislation.
He accepted that legislation does not ordinarily operate retrospectively unless the law expressly provides otherwise, subject to constitutional limitations. But he drew a distinction between the operation of a statute and the effect of a pronouncement by the Supreme Court.
The significance of the judgment, he said, is that the court has now authoritatively determined that the disputed provisions of the Act are valid. Because those provisions were part of the Act from the time the legislation was enacted, the effect of the validation is that their legal validity has now been affirmed at the highest judicial level.
“It would therefore be inaccurate to simply describe the judgment as giving the Electoral Act retrospective effect,” he said.
“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 added that the earlier judgment of the Court of Appeal could not necessarily be relied upon by a candidate or a political party seeking to avoid the consequences of the Supreme Court’s subsequent pronouncement.
He stressed that he was not commenting on the merits or the outcome of any particular individual case.
“Do Parties Still Have The Final Say?”
Another Senior Advocate of Nigeria, Mr. Francis Amobi Nzelu, approached the judgment from the standpoint of the changing relationship between political parties, candidates, the commission and the electorate.
He questioned the continued relevance of the traditional position that political parties have the final say in determining their candidates, particularly in view of the statutory framework governing party primaries under the Act.
He said political parties in earlier periods operated under a system in which their conventions effectively selected the candidates who would represent them at elections, and suggested that the introduction of direct primaries, under which registered members participate in determining candidates, has changed the character of the process.
Where a party member has obtained nomination forms, been screened and cleared, participated in a primary election and emerged victorious, he said, questions could arise if the party subsequently seeks to remove that person’s name.
He insisted that such circumstances should also be considered from the standpoint of the electorate, which ultimately votes for candidates at the general elections.
“They Should Not Seek To Participate”
A human rights lawyer, Mr. Ige Asemudara, described the decision as a development that would reinforce order and adherence to established electoral rules.
He said persons who were not listed on the membership register of a political party within the statutory period should not seek to participate in that party’s primary process.
He referred to instances in which aspirants dissatisfied with the outcome of primaries in one political party subsequently moved to another party and sought to contest under its platform, and said the Supreme Court had restored clarity regarding the relevance of party membership registers and the statutory requirements governing participation in primaries.
“The Court Did Not Create A New Law”
On retrospectivity, he argued that a judicial decision is intended to determine the legal position arising from a dispute and to provide guidance for the future.
The Supreme Court, he said, did not create a new law through its judgment, but interpreted the existing provisions of the Act and determined their constitutional validity. He therefore rejected the suggestion that the judgment should be characterised simply as a retrospective application of the Electoral Act.
He maintained that the practical implications of the ruling will be relevant to persons participating in the electoral process whose actions fall within the provisions of sections 77 and 84 of the Act.
The two senior advocates and the human rights lawyer are addressing different questions, and separating them is the key to reading the disagreement.
On retrospectivity, the position advanced by Dr. Layonu and by Mr. Asemudara is the orthodox one, and it rests on what is sometimes called the declaratory theory of adjudication. A court does not make law when it pronounces on the validity of a statute; it declares what the law has been since enactment. It follows that a provision held valid was always valid, and that an intervening decision to the contrary was simply wrong. Nigerian courts do not generally practise prospective overruling, under which a ruling would apply only from the date it is given, so the analytically correct description of Thursday’s judgment is not that the Act has been applied backwards but that it never ceased to mean what the Supreme Court has now said it means.
The practical difficulty that framework creates is the one Dr. Layonu named without resolving, and it is the live question for anyone who acted between 16 July and 24 September. During that window a judgment of the Court of Appeal stood, and a party or candidate who ordered its affairs on the strength of it was obeying the only appellate authority then in existence. His view, that the earlier judgment cannot necessarily be relied upon to avoid the consequences of the later one, is legally sound on the declaratory theory. Whether a court would apply it without qualification to a party that acted in good faith on a subsisting appellate decision is a different matter, and it is the kind of question on which the doctrine of actual reliance, and the discretion inherent in declaratory and equitable relief, tend to do real work.
Mr. Nzelu is not addressing retrospectivity at all. His question goes to the erosion of party autonomy over nomination, and it engages a line of authority of long standing. Nigerian courts once treated the choice of a candidate as the internal affair of a party, non-justiciable and beyond judicial reach. That position has been progressively qualified by statute, and the Electoral Act now confers on an aspirant who participated in a primary a limited right to complain of its conduct. His point is that once a member has bought forms, been screened, cleared, and won a primary conducted under a statutory procedure that the commission monitors, the residual power of the party to substitute another name is difficult to reconcile with the scheme the statute creates. That is a genuine tension, and it is the ground on which most of this cycle’s pre-election litigation has been fought.
Mr. Asemudara’s contribution is the most practical of the three and identifies who is actually affected. The register provisions do not disqualify anybody in the abstract; they operate on the person who was not a member within the statutory period and who nonetheless seeks to contest a primary. His reference to aspirants who lose in one party and resurface in another is a description of the conduct sections 77(5) to (7) were drafted to prevent, and it is the conduct most likely to generate challenges once someone with standing brings them.
That is the omission running through all three assessments, and it should temper any expectation of immediate consequences. None of the three addressed who may bring such a challenge or when. Section 285 of the Constitution requires a pre-election matter to be filed within 14 days of the event complained of and determined within 180 days, and the Electoral Act confines standing to an aspirant who took part in the primary complained of, or to the party itself. A correct statement of the law on validity does not supply a litigant, a cause of action, or time within which to bring it. Until someone with all three appears, the judgment governs conduct going forward and leaves completed nominations where they stand.
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