By Simeon Akala
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INTRODUCTION
Recently, the Electoral Act 2026 was enacted, and there have been legal upheavals as to the grounds of bringing election petition under Section 138(1) of the said Act, which was previously three but now reduced to just two. Many party opposition and adherents have argued that it was a mischievous legislative amendment, to primarily favour the ruling party APC( All Progressive Congress).
To this end, there have been full blown agitations here and there from electronic transmission of results and upload and many more looming electoral concerns. My commentary focused on the above subject; to examine if the section of the Act conflicts with the 1999 Constitution or whether it was a mere amendment, if not what is the intent of the Makers of the law vis-a-vis the supremacy of the Constitution.
ANALYSIS OF SUBJECT MATTER
The provisions of Section 138(1) of Electoral Act 2026, contemplates that the two grounds of bringing an election petition is either if the electoral process is not in compliance with the Electoral Act and if a Candidate does not have the majority of total votes cast in an election, hence disqualification or qualification of Candidates is non-existent, hence such matter is not worthy of contention in Court.
However, Section 134(1) of the Act provides that election must be done in compliance and accordance with the Constitution. Yet, the Act is now silent on the issue of qualification. The Constitution provides under Sections, 65,66, 106, 107,131,137,177 & 182, various qualifications requirements for each electoral contestant. So is the Act inconsistent with the Constitution or which is supreme? Or is eligibility of candidates contesting for an election necessary?
Furthermore, the supremacy of the Constitution is in section 1(1) and 1(3). By virtue of section 1(3) thereof,
“if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other to the extent of the inconsistency be void”.
In UGBOJI V. STATE (2017)LPELR-43427(SC), the Nigerian apex court, per Amiru Sanusi, JSC (Pp. 23-23, paras B-D), held thus:
“My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria, 1999, as amended, had by Section One, made provision to emphasise or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. ONDO STATE V. A.G. OF THE FEDERATION AND ORS (2002) 9 NWLR (Pt 772) 226.”
It is my opinion that qualification is a Constitutional matter and is necessary as a subject of litigation. If the Constitution has expressly mentioned the factors by interpretation ( Expressio Unius Est Exclusion Alterius) what qualifies or disqualifies a Candidate in an election it remains so, See PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS V. MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC); so the Act cannot preclude Petitioners from raising serious objections by seeking to curtail by itself the provisions of the Constitution, as this will birth unforseen absurdities.
Conclusively, this is a crucial issue that hangs like the sword of damocles on our electoral system and simply like every other legal minds awaits judicial clarification, as against the backdrop of both Pre-Election and particularly Election petition.
Simeon Akala writes from Edo State
08110468699
simeonakala217@gmail.com
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