*Says “Only A Candidate With Legal Standing Can Challenge Another Candidate’s Non-Compliance In Court”
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A Senior Advocate of Nigeria, Dr. Monday Onyekachi Ubani, has said that the Supreme Court’s restoration of the membership register and primaries provisions of the Electoral Act 2026 has finally settled the long-running question of party autonomy, but that the electoral commission has no power to remove any candidate’s name from a list it has already published.
He spoke on the programme Daybreak on Arise News, in an analysis of the judgment delivered on Thursday by a seven-member panel led by Honourable Justice Adamu Jauro, which allowed the appeal of the Independent National Electoral Commission, set aside the judgment of the Court of Appeal of 16 July, restored the decision of the Federal High Court in Abuja dismissing the Zenith Labour Party’s constitutional challenge, and imposed a fine of 2 million naira on the party.
Asked what the judgment means in simple terms for the ordinary voter, the senior advocate began with the constitutional question behind it.
“The case started from the Federal High Court, then to the Court of Appeal, and now to the Supreme Court. The Supreme Court has finally settled the question of party autonomy,” he said. “Whether the National Assembly can enact a process to direct the internal affairs of a political party has now been determined finally.”
“What the court did is to uphold the provisions of section 77(5), (6) and (7) that were mentioned, in addition to section 84 subsection 2, which concerns the method of conducting primaries.”
“So if you want to run for election, or to be a voter, your name must be in the electronic register of the political parties. And the law says they must submit that register 21 days before the primaries or the party congresses. And if you fail to do that, your party will of course be excluded from having a candidate in the coming election in 2027.”
He explained what the Court of Appeal had held. “The question was whether this does not conflict with party autonomy, because the Court of Appeal said no, they have the right to be guided by their internal constitution and not by the Electoral Act itself.”
“So the Supreme Court has finally settled the matter, that of course if you want to run for an election, the National Assembly has made an amendment and a law directing that process, and that process will also produce guidelines made by the electoral commission. The commission says, submit your register within a specified time. So in upholding the law, the court also upheld the commission’s guidelines.”
On eligibility to vote or to contest at a primary, he returned to the text.
“As I said earlier, your name must be there, and they said you cannot use another register, which is of course what section 77 subsection 6 provides, where it says you cannot use a register other than the one you submitted earlier.”
“So if a party ultimately chooses to use a register different from the one it submitted, that again becomes an issue on which a candidate can go to court to say this party did not comply with the law itself or with the commission’s guidelines.”
He said the change from the previous law is substantial. “It is a very serious matter, unlike the Electoral Act 2022, which has no penalty clause if you fail to submit your register. Remember that some political parties in 2023 were accused of not submitting any register to the commission. But under the 2026 Act that amendment was made and addressed, so that there are consequences if you fail to submit your register before your congress or your primaries. So it has implications.”
Asked whether the judgment could open the door to further challenges to party candidates before 2027, the senior advocate drew the central distinction of the interview.
“I think the Court of Appeal judgment gave some people a window of time, and they took certain steps, and now people are saying that those candidates may be at risk,” he said.
“The good thing about it is that it is a pre-election matter, so you have 14 days to actually challenge any candidate. So if you did not challenge any candidate, I don’t think this judgment is automatically enforceable.”
“I don’t think the commission will now begin to look at any register, especially for the names that have been published, and say delete this name, delete that name, they did not comply, and so on. The commission cannot do that on its own, because that would be exercising a judicial function. Only the judiciary has the right to do that.”
“Nobody but a candidate who has legal standing can go to court now and say, look, this person did not comply. His name is not in the register, or the person who voted for him, his name is not in the register. So the law allows only a candidate to do that, and the court will be in a position to look into it.”
He added the qualification that governs most of the cases now being discussed. “But of course remember that 14 days may have elapsed, because that happened a long time ago. So if you want to raise it now as a pre-election case, you have started badly.”
Told that the position might differ where a case is already before the court, he agreed. “If the case is already before the court, that may be possible, if it concerns challenging the absence of your name in the register and so on. Then the court can decide on the basis of the latest decision of the Supreme Court. But the commission cannot on its own, and I say this here because there is case law they should look at.”
On whether the judgment would curb defections, he said it would, and explained why the earlier law had failed.
“Yes, because you see, there was a reason for this legislation by the National Assembly. As I said, it was there at the beginning, but it had no consequences. People take this step, especially if they are refused a ticket; the next day they are in another political party.”
“In fact, I know someone who joined three political parties in one day. He was in party A in the morning, in the afternoon he moved to B, and in the evening he joined and finally settled in C, and he won the election under the platform of C.”
“But that is no longer possible under this provision, which states that your name must be in the register, and that it must have been submitted 21 days before the congress, before the primaries. So if your name is not in the register, of course this becomes something any candidate can challenge openly.”
“It is a very serious matter, a very serious matter. You cannot do all that we used to do before, where people join three political parties in one day and then run for office. Becoming a candidate at that time for a political party is no longer possible; that is no longer workable now that the Supreme Court has upheld this particular section, and it is the final court in the country.”
Asked who is responsible for ensuring the accuracy of party membership registration, he was clear.
“No, it is the party,” he said. “The party will take your name and your address, and I am sure your gender, and some other requirements that the law provides. Your address must be very basic, your name very basic, your gender and your state or whatever. Those are the requirements.”
“So it is the party that keeps the records and then submits them, and the law says that must be done 21 days before the primaries or the congress or whatever. So you must do that. And if you fail to submit, there is now a penalty for that. If you cannot submit your register before the primaries, you cannot nominate any candidate. That is the law now.”
He acknowledged the scale of the task for the larger parties, noting that one of them has about 12.6 million members and that the exercise raises questions of logistics and data management for it and for the other major party.
Asked directly how the judgment affects the All Progressives Congress governorship candidate in Rivers State, the senior advocate declined to pronounce.
“Oh yes, I will not make a specific statement on any candidate, because we know, you know, the certified judgment of this decision, and I am going to the Supreme Court from here. I have already applied for it and all that, but it is not ready yet. There are seven justices who delivered this decision, and they must all sign.”
“So we need to look at the full ratio of this judgment. So all we are doing is just what the newspapers reported about the reasoning of that decision.”
He nonetheless set out how such a case would be decided. “Somebody must have objected to him. Remember it is a pre-election matter. So you have 14 days to object to him. If the electoral commission has already published his name…” He added that he believed someone had done so, and that there was a case pending before the court.
“If there is already a case and it concerns non-compliance or the Electoral Act, then of course it becomes an issue. But what I am saying is that the commission cannot on its own remove any name, especially those names the commission has already published. Do you follow me?”
“So somebody must have objected, and the question now is to verify whether his name was included in the register of the political party submitted 21 days before he emerged at the primaries. At that point you will realise there is a problem. If there is no problem, of course if his name was there, then you know there are no issues.”
Asked whether the judgment therefore operates retrospectively, he rejected the framing.
“No, no, no. It depends on whether the case has been exhausted. If it is still pending as I said, and has not been decided, the Supreme Court decision becomes very useful to the judge now hearing it,” he said.
He explained the position of names already accepted and published during the period when the Court of Appeal judgment stood.
“When the Court of Appeal delivered the judgment setting aside the Federal High Court judgment, of course the electoral body accepted some names and even published them. The names of presidential candidates were published. Did they publish the names of governorship candidates? They published them already.”
“Now, the Supreme Court has said this: the electoral body will not on its own remove all those names, because at the time it accepted them, there was a subsisting judgment, and that remains valid until it is set aside. So it cannot act retrospectively and remove their names.”
“So, as I said, unless someone challenged that candidate and the case is pending and undecided by the court. Then the court will look at the latest Supreme Court decision to say, oh, your name is no longer valid based on this. But if your name was accepted and nobody objected to it, given that there was a subsisting judgment at the time, then there is clarity now.”
He repeated the limit. “If his name was published and nobody objected to it, the commission cannot on its own. And this is important, it cannot. Only the court can remove it, and that on the fact of non-compliance.”
Asked whether the fine imposed on the Zenith Labour Party was intended as a deterrent, whether it was sufficient, and whether it might frighten parties or individuals with genuine complaints away from the courts, he said it would not.
“No, no. The court is not saying you have no right to come,” he said. “But look, when you go to court and come on appeal, you must have, as you know, a meritorious and convincing case, so as not to waste time.”
He said the practice is established. “Before you file, especially in these political cases, you pay a certain amount of money to the Supreme Court to show seriousness in the first place, and to deter yourself from coming with frivolous cases.”
He referred to a criticism of his own profession. “You know there is an allegation that most lawyers pursue these electoral cases because it helps them achieve what they aspire to.”
“So the Supreme Court is also careful not to open the door wide to every frivolous appeal. So when you come with an appeal you should not even have brought to us, they impose a penalty on you. You know two million is not a big amount. You can lose two million.”
Asked to explain the relationship between the Zenith Labour Party case and the suits brought by the Social Democratic Party and the Young Progressives Party, he said those parties were challenging the commission’s guidelines rather than the Act.
“I think those parties also had a case. They were challenging the guidelines,” he said. “The guidelines of the electoral commission. The commission set guidelines to direct the whole process. And then the question was, were those guidelines constitutional? Were they consistent with the Electoral Act, or with the Constitution?”
“And then there was a particular ruling, if I recall it clearly, where the court said it is a universal legal principle that if electoral guidelines conflict with the Constitution, the Constitution takes precedence. Or even with the Electoral Act. Secondly, you know, it is subsidiary legislation, and a law made by the National Assembly is higher in degree than the guidelines. They are subsidiary legislation, so that law will remain applicable.”
“Even here the Supreme Court was also saying that as long as the provisions of the Electoral Act do not conflict with the Constitution, they are valid. The principle is fixed: whether it is a guideline or a law, it must not in any way tamper with or interfere with the provisions of the Constitution.”
“So what the Supreme Court did is to uphold the validity of the law and its provisions because, according to them, they do not conflict with the provisions of the Constitution. In other words, had they conflicted, they would of course have been struck down to the extent of their inconsistency with the provisions of the Constitution. So we must note that.”
He explained where the guidelines come from. “How do guidelines emerge? They emerged from the Electoral Act. The electoral body sat and said, yes, you have given us a legal framework, but we now need to implement an administrative framework in order to drive the electoral process forward. So they are guidelines to guide the process.”
“So some people felt they were unconstitutional, that they were inconsistent with the provisions of the law, and they went to court. But because of the question of legal standing, or because one of them filed his appeal one day late,” he said, the merits were never reached. “So it is a very serious technical issue, such that the court could not even consider the substance of the case.”
Put to him at the close that legal commentators consider that while the judgment strengthens the commission’s regulatory authority, it does not automatically or wholly exclude individual candidates, and that each candidate’s validity depends on specific proof of compliance or non-compliance, he agreed.
“I said that here. It is a fact that we determine whether this person, you know, what has happened is that the commission’s power is now strengthened, and that is the fact. Their power of enforcement and monitoring is very strong. They did well to pursue this case to the Supreme Court.”
“So the commission now stands on very solid ground. Now they can say, you cannot challenge us in any way because the Supreme Court has given us that. But the individual facts remain what will determine whether a person is disqualified.”
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