As Senior Lawyers and Former RECs Split Over Whether Electoral Act Permits Post-Primary Defection
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Senior Advocates of Nigeria and former Resident Electoral Commissioners of the Independent National Electoral Commission have expressed sharply divergent opinions over whether aspirants who lost party primaries can legally defect to another political party and contest elections under the Electoral Act 2026, as the predicted wave of post-primary defections from the All Progressives Congress has begun materialising with high-profile departures including former Deputy Senate President Ovie Omo-Agege, former Senator Nkechi Nwaogu, and former Minister Isa Pantami.
The differing opinions follow the two conflicting Federal High Court judgments on INEC’s election timetable and guidelines, with some legal experts arguing that the Electoral Act effectively bars aspirants from switching parties after participating in primaries, while others maintain that Justice Mohammed Umar’s judgment created a window for such movement before the submission of party membership registers to INEC.
The Defections Already Happening
The legal debate is not academic. High-profile defections are already underway.
Former Deputy President of the Senate, Ovie Omo-Agege, who was crushed by Senator Ede Dafinone in the APC Delta Central senatorial primary by a margin of 116,252 to 3,643 votes, has dumped the APC for the Nigeria Democratic Congress (NDC) to pursue his desire to return to the Senate.
Former two-term Senator for Abia Central, Nkechi Nwaogu, confirmed in a telephone interview that she had left the APC for the NDC following the outcome of the APC primaries in which her closest rival, Emeka Atuma, was declared winner. “I can confirm that I have left the party,” she stated, citing personal decision and injustices within the party.
Former Minister of Communications and Digital Economy, Isa Pantami, who withdrew from the APC governorship primaries in Gombe State alleging irregularities, has been declared the Peoples Democratic Party governorship candidate for the 2027 election in Gombe.
These defections have set the stage for a legal confrontation over whether the moves are permissible under the Electoral Act 2026 or whether the defecting aspirants are taking a gamble that could cost them everything if the Court of Appeal rules against the judgment they are relying on.
“You Cannot Defect and Contest Again”
Senior Advocate Adedayo Adedeji stated categorically that the Electoral Act does not permit aspirants to move to another political party after contesting primaries.
“Based on the Electoral Act 2026, politicians cannot defect to another political party and contest again under another platform,” Adedeji told The PUNCH.
However, he acknowledged the complexity created by the conflicting Federal High Court judgments. “I’m aware of the fact that there’s a judgment of the Federal High Court which held that the particular provision is unconstitutional and that the time to submit the register extends further. I’m also aware that there’s another judgment by Justice Omotosho having a contrary view on that particular position,” Adedeji stated.
He warned that the two judgments are from courts of coordinate jurisdiction and neither overrules the other. “You cannot say Justice Omotosho’s judgment is binding or overrules the judgment of Justice Umar. It is only the Court of Appeal, being a higher court, that can rule on that,” the SAN explained.
“Sink or Swim”
Adedeji issued a pointed warning to aspirants who are defecting based on Justice Umar’s judgment, telling them they must be prepared to accept the consequences if the Court of Appeal rules differently.
“If you go by that judgment, it has given a leeway for aspirants to actually take advantage of that window. But in taking advantage of that window, they have to be able to sink and swim with their decision,” Adedeji cautioned.
“If, at the end of the day, the Court of Appeal rules otherwise and says that the decision is faulty, they have to stick with it. It means that if the Appeal Court rules otherwise, there’s no foundation for them to stand. And if, for any reason, the Court of Appeal says yes, I’m upholding that judgment, it means that whatever decision they are taking is on a solid footing,” he added.
The SAN noted that aspirants relying on the judgment may not necessarily be violating the Electoral Act if the membership register of their new party had not yet been submitted to INEC. “According to the first court judgment, they might not be violating the Electoral Act if an aspirant moves from one political party to another to conduct primaries, provided the register has not been submitted,” he stated.
However, Adedeji warned against taking irreversible political decisions based on judgments from courts of first instance. “If the judgment is against the candidate, it means the person automatically loses his seat. It also means that the political party is going to be without a candidate, assuming they even won in the election,” he cautioned.
“Not a Very Creative Thing to Do”
Senior Advocate Ifedayo Adedipe confirmed that the Electoral Act appears to prohibit post-primary defection but criticised the provision itself as potentially unjust.
“According to the new Electoral Act, it is not permissible. I think they have tweaked the current Electoral Act to ensure that if you lose in your party, you remain there,” Adedipe stated.
He argued that the restriction could be exploited by parties that operate opaquely in their candidate selection. “A political party might choose to be occult in its operation. They behave like a cult, they already know who they want and who they do not want, and they allow you in, and then they don’t allow you to go out. If you close the door against them, you deny the country the right to make an informed selection,” Adedipe warned.
“There Is a Window”
Senior Advocate Kunle Adegoke offered a different perspective, suggesting the Electoral Act may have inadvertently left a loophole that allows aspirants who were not nominated by their original party to seek tickets elsewhere.
“There is a window created by the 2026 Electoral Act. It might be an omission, but there is nothing preventing an aspirant who was not nominated on the platform of his original party from reaching out to another political party, so long as he is within the period allowed by the Electoral Act to vie for an office in that other political party,” Adegoke stated.
He drew the line at dual nomination: “The only thing is that if he is nominated by the APC, he cannot abandon that nomination to pick a ticket in his new party, because the Electoral Act forbids double nominations.”
Former RECs Divided
Former Resident Electoral Commissioners were equally divided on the question.
Former Zamfara State REC Asmau Maikudi said the judgment in Youth Party versus INEC supports aspirants moving to another party before the membership register submission deadline. “Based on the above judgment, yes. By the way, how many parties have submitted their membership registers to INEC as of today?” she asked pointedly.
Former REC Mike Igini was equally direct: “Yes. They can, given the judgment.”
However, former Katsina State REC Jibrin Zarewa took a starkly different position, stressing that the Constitution and the Electoral Act prohibit dual party membership and impose criminal penalties on violators.
“The Electoral Act outlaws membership of two political parties. You cannot be a member of two political parties because the Constitution only permits one,” Zarewa stated.
He outlined the legal requirements for a valid defection: “You have to properly resign from the political party and properly join the other party to be eligible to stand for election. If you are a member of a political party and you did not properly resign within the time stipulated by the Electoral Act and join the other party, then you are a member of two political parties, which means you are disqualified.”
The Waiver Question
Zarewa introduced an additional dimension that is critical for aspirants joining new parties: the question of whether their new party’s constitution imposes a waiting period before new members can contest elections.
“Some of them have waivers, some of them don’t have waivers. Some of them have provisions that if you join the other party, you have some timeline to be a member of that party to be eligible to contest elections. So, if they give you a waiver, you are properly registered, then you can contest,” Zarewa explained.
He maintained that party constitutions differ on this point, meaning aspirants must verify whether their new party will grant them a waiver before assuming they are eligible to contest immediately upon defection.
INEC “Caught in a Quagmire”
Zarewa described INEC’s current position as a “quagmire” created by the two conflicting Federal High Court judgments.
“We have two conflicting judgments from courts of concurrent jurisdiction. One is that a portion of the guidelines has revoked the enforcement of the guidelines. Another court is saying that INEC is right. INEC has initiated the appeal process, which means now INEC may continue with its own position pending when an appellate court decides which of the courts is right,” Zarewa stated.
He explained that the Electoral Act was designed to prevent precisely this kind of situation. “There’s something referred to as forum shopping, where when people have disagreements, they go in search of courts where they will get a favourable judgment. What the Electoral Act attempted to do was to stop this. In forum shopping, courts give divergent rulings on the same matter,” Zarewa said.
Across the divergent opinions, one common thread emerges: the membership register is the critical document. If a defecting aspirant’s name appears on the membership register of their new party before the register is submitted to INEC, and the aspirant has properly resigned from their former party, their candidacy on the new platform stands on firmer legal ground.
If the register has already been submitted or the aspirant has not properly resigned, the risk of disqualification is substantial, regardless of which Federal High Court judgment is ultimately upheld.
As Zarewa summarised: “If you are outside at the time it is given to INEC, it means you are not a member. If your name is not in the register within that time. The Electoral Act says you cannot be a member of two political parties. It’s a criminality, and because it’s a criminality, you have to be penalised.”
The question of which Federal High Court judgment governs the timeline for register submission, and consequently the window for defection, will only be definitively answered when the Court of Appeal resolves the conflict between Justice Umar’s and Justice Omotosho’s rulings.
Until then, every defecting aspirant is making a calculated gamble. As Adedeji SAN warned: they must be prepared to sink or swim with their decision.
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