By Abdulrasaq Sulyman Abidemi
![](https://thenigerialawyer.com/wp-content/uploads/2026/05/2026-Summer-IDRI-Masterclass.jpg")
As Its Candidate After Losing A Consensus Process Or Primary Election
INTRODUCTION
The phenomenon of political defection has remained one of the most controversial features of Nigeria’s electoral system. In previous electoral cycles, it has become increasingly common for aspirants who fail to secure nomination under one political party to immediately defect to another political party in search of a fresh opportunity to contest elections. This practice has become notorious before the enactment of Electoral Act, 2026 that ready to regulate party primaries, consensus candidacy, and party membership registration.
A critical question therefore arises: Whether a defeated aspirant may decamp to another political party and emerge as its candidate after losing a consensus process or primary election?
At first glance, Section 77 of the Electoral Act, 2026 appears to answer this question in the negative. The section imposes strict obligations on political parties concerning membership registers and eligibility to participate in party primaries. However, a closer examination of the relevant provisions reveals a significant legislative gap that may permit post-primary political defection under certain circumstances, particularly where a political party adopts the consensus method of candidate selection rather than direct or indirect primaries.
This article examines the legal implications of Sections 77 and 84 of the Electoral Act, 2026 the distinction between party primaries and consensus arrangements, and the question of locus standi in challenging nominations arising from post-primary decamping.
THE FRAMEWORK OF SECTION 77 OF THE ELECTORAL ACT, 2026
The controversy lies in the interpretation of Section 77, particularly subsections (5), (6), and (7).
Section 77 provides that:
“(4) Each political party shall make such register available to the Commission not later than 21 days before the date fixed for the party primaries, congresses or conventions.
(5) Only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions.
(6) A political party shall not use any other register for party primaries, congresses and conventions except the register submitted to the Commission.
(7) A party that fails to submit the membership register within the stipulated time shall not be eligible to field a candidate for that election.”
The apparent legislative intention behind these provisions is straightforward. The National Assembly evidently sought to discourage political opportunism by preventing aspirants from participating in the nomination process of multiple political parties within the same electoral cycle.
Under the section, political parties are mandated to submit their membership registers to the Independent National Electoral Commission (INEC) at least twenty-one days before their primaries. Furthermore, only persons whose names appear in those registers may vote or be voted for during party primaries.
On a literal interpretation, the implication appears obvious. An aspirant who contests and loses the primary election of Party A cannot subsequently defect to Party B and validly contest its primary election because his name could not have appeared in the membership register earlier submitted by Party B to INEC.
From both legal and policy perspectives, this interpretation appears sensible. It preserves party discipline, discourages political desperation, and protects the integrity of internal party democracy. Nevertheless, the issue becomes considerably more complex when the precise language of the statute is subjected to careful legal scrutiny.
THE SIGNIFICANCE OF THE WORD “PRIMARIES”
The controversy surrounding Section 77 lies principally in the repeated use of the phrase “party primaries.”
Subsection (5) provides that only members whose names are contained in the submitted register shall be eligible “to vote and be voted for in party primaries.” Similarly, subsection (6) prohibits political parties from using any register other than the one submitted to INEC “for party primaries.”
The emphasis on “party primaries” is legally significant.
Under Section 84 (2) of the Electoral Act, 2026, political parties may nominate candidates through either:
- Direct or indirect primaries; or
- Consensus arrangements.
Thus, the Electoral Act expressly recognizes consensus candidacy as an independent and lawful method of candidate nomination separate from conventional party primaries.
This distinction raises a critical interpretative question: does Section 77 apply equally to consensus arrangements?
The section itself does not expressly say so. The operative language consistently refers only to “party primaries.” The omission of consensus arrangements from the scope of Section 77 may not be accidental, and courts are generally reluctant to import words into statutes that the legislature deliberately or inadvertently omitted.
One of the cardinal principles of statutory interpretation is that courts must interpret statutes as they are written and not as they ought to have been written. In other words, a court cannot read into a statute provisions that do not exist.
Accordingly, if the National Assembly intended the membership register requirement to apply equally to consensus arrangements, it ought to have expressly stated so within the statute. The failure to do so creates a potential loophole capable of sustaining post-primary political defections.
CONSENSUS CANDIDACY AND THE LEGISLATIVE GAP
The consensus method under Section 84 of the Electoral Act, 2026 differs fundamentally from direct or indirect primaries. In a consensus arrangement, political parties are not necessarily required to conduct voting exercises involving the wider party membership. Rather, aspirants may voluntarily agree to the emergence of a single candidate through written consent and withdrawal.
Importantly, the consensus process under the Electoral Act is not expressly tied to the party membership register submitted to INEC under Section 77.
This omission creates a troubling legal possibility. Where an aspirant loses the primary election of Party A and subsequently defects to Party B, Party B may potentially adopt the aspirant through a consensus arrangement without conducting fresh primaries. Since Section 77 repeatedly regulates only “party primaries,” the legal restriction concerning submitted membership registers may arguably not apply to consensus candidacy.
Consequently, the aspirant’s absence from the membership register earlier submitted by Party B may not necessarily invalidate the consensus arrangement.
Furthermore, the Electoral Act does not prohibit political parties from admitting new members after submitting their registers to INEC. This is another significant omission. While the statute regulates which register may be used for primaries, it does not expressly freeze party membership after submission of the register.
Therefore, a political party may continue admitting members, including defecting politicians, even after the submission deadline.
This legislative silence may ultimately prove decisive in litigation involving post-primary decamping.
JUDICIAL INTERPRETATION AND THE LIMITS OF THE COURTS
Nigerian courts have consistently maintained that they cannot amend statutes under the guise of interpretation. The judicial duty is limited to giving effect to the words used by the legislature.
Where statutory language is clear and unambiguous, courts are bound to apply the ordinary meaning of the words employed. Conversely, where the legislature omits certain situations from statutory coverage, courts generally refrain from supplying the omission.
In the context of Section 77, the repeated reference to “party primaries” may substantially weaken any argument seeking to extend the section to consensus candidacy.
Indeed, the courts may hold that while the Electoral Act clearly prohibits participation in another party’s primary election where the aspirant’s name does not appear in the submitted register, it does not expressly prohibit emergence through consensus arrangements.
Such an interpretation may appear politically inconvenient, but judicial interpretation cannot substitute legislative drafting.
THE QUESTION OF LOCUS STANDI
Even where the legality of post-primary decamping is doubtful, another formidable obstacle arises: who possesses the legal standing to challenge the nomination?
Nigerian electoral jurisprudence has consistently classified nomination and sponsorship of candidates as internal affairs of political parties. Consequently, only persons with sufficient legal interest in the nomination process possess locus standi to institute legal proceedings. This position of the law was settled by the Supreme Court in the case of AJAYI V. ADELAMI (2025) 20 NWLR (Pt. 2022) 21 @ 67 where the court held thus:
“A party must generally show that he has sufficient interest in the dispute being litigated far him to have locus standi. However, locus standi in pre-election matters is а little bit more restrictive as it is statutorily donated by the Electoral Act, 2022. Неnсе, it is only а plaintiff who саn show that he has locus standi within the narrow confines of the provisions of the Electoral Act whose grievances will be entertained by а court. This is in keeping with the fact that election matters are sui generis and are governed by special set of laws and procedures. In the instant case, the action culminating in the instant арреаl was brought as а pre-election matter.”
The courts have repeatedly held that only an aspirant who participated in the primary election or nomination process of a political party may challenge the validity of that process. It was also settled in the case of A.P.M V. I.N.E.C (2023) 9 NWLR (Pt. 1890) 419 @ 491-492, where the court held that:
“Pre-election litigation is no longer an all-comers affair; the law has provided for the category of person(s) who would have the locus standi to maintain a pre-election matter. In this wise, the stipulations of sections 29(5), 84(14), 152 of the Electoral Act,2022 and section 285(14) of the 1999 Constitution as amended have provided for the category of persons that can bring a pre-election matter. By sections 29(5) and 84(14) of the Electoral Act, 2022, it is an aspirant; which is defined in section 152 of the Electoral Act, 2022 as a person who aspires or seeks or strives to contest an election to a political office; that can bring pre-election litigation. In the instant case, the appellant/cross-respondent was apolitical party, it was not an aspirant; so, it did not have locus standi under sections 29 and 84of the Electoral Act, 2022.”
The implication is profound.
Suppose an aspirant loses the nomination process of the Peoples Democratic Party (PDP), defects to the All Progressives Congress (APC), and subsequently emerges as the APC candidate through consensus. Can members of the PDP challenge the APC’s nomination process? Judicial authorities strongly suggest otherwise….
This principle was illustrated in the case of S.D.P V. I.N.E.C (2023) 14 NWLR (Pt. 1905) 532 @ 544-546 where the Supreme Court reportedly maintained that a member of one political party lacked the requisite locus standi to challenge the candidate selection process of another political party.
Thus, where every aspirant within the new political party consents to the consensus arrangement or withdraws from the contest, there may effectively be no competent challenger capable of activating judicial scrutiny against the decamped aspirant.
In practical terms, this means that even where the legality of the process is questionable, the absence of a competent plaintiff may permit the nomination to stand unchallenged. This was also settled by the Supreme Court in the case of EBEBI V. ESEMOKUMOR (2022) 1 NWLR (Pt.1812) 463.
CONCLUSION
The combined effect of Sections 77 and 84 of the Electoral Act, 2026 reveals a significant legislative ambiguity concerning post-primary political defections.
While Section 77 clearly prohibits participation in another political party’s primary election where the aspirant’s name does not appear in the membership register earlier submitted to INEC, the provision does not expressly extend the same restriction to consensus candidacy.
This distinction is crucial. Since consensus arrangements operate differently from conventional primaries and are not expressly tied to the submitted membership register, a defecting aspirant may arguably validly emerge as the candidate of another political party through consensus despite having previously lost a primary election elsewhere.
Additionally, the issue of locus standi further complicates potential legal challenges, as only aspirants within the relevant political party generally possess the legal standing to challenge candidate nominations.
Ultimately, the Electoral Act, 2026 may not have been drafted comprehensively enough to completely eliminate the possibility of post-primary political decamping. Whether this omission was deliberate or inadvertent remains uncertain. Nevertheless, until the National Assembly amends the law or the appellate courts provide definitive judicial clarification, the controversy surrounding post-primary defections and consensus candidacy is likely to persist within Nigeria’s electoral jurisprudence.
Politicians contemplating such political maneuvers must therefore proceed with extreme caution and obtain competent legal guidance, as the legal terrain remains unsettled, politically sensitive, and potentially combustible.
Abdulrasaq Sulyman Abidemi, Student Of Faculty Of Law Ahmadu Bello University, Zaria.08149151823, Legalminded14@Gmail.Com
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