*As Election Challenge Ground And 21-Day Digital Register Rule For Primary Participation
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The Nigeria Democratic Congress has asked the Federal High Court in Abuja to strike down Sections 138 and 77(5) of the Electoral Act 2026 for being inconsistent with the 1999 Constitution (as amended), in a suit that challenges two of the most controversial provisions of the new law, namely the removal of candidate qualification as a ground for challenging election results and the imposition of a 21-day digital membership register requirement for participation in party primaries.
The NDC, which was registered by INEC on February 5, 2026, and which recently attracted Senator Seriake Dickson of Bayelsa West who defected from the PDP, filed the originating summons marked FHC/ABJ/CS/635/2026 through its counsel Vincent Ottaokpukpu of V-C Ottaokpukpu & Associates on March 27, 2026.
The suit names the Attorney-General of the Federation as first defendant, the Clerk of the National Assembly as second defendant, Senate President and Chairman of the National Assembly Godswill Akpabio as third defendant, and INEC as fourth defendant.
At the resumed hearing on Thursday before Justice Mohammed Umar, the NDC’s counsel and INEC’s counsel Chief Alex Iziyon SAN were in court. However, no lawyer appeared for the AGF, the Clerk of the National Assembly, or Akpabio, despite confirmation from court records that all three were served with the originating summons and hearing notice on April 20.
Ottaokpukpu, noting the trio were still within the 14-day period to respond to the processes served on them, sought an adjournment. Justice Umar fixed May 7 for hearing of the matter.
The NDC’s first and most significant challenge targets Section 138 of the Electoral Act 2026, which the party argues has expressly excluded “qualification” as a ground for challenging the return of a candidate for any elective position, from House of Assembly to President.
Under previous electoral legislation, including the Electoral Act 2022, a candidate’s qualification, including educational requirements, was one of the recognised grounds on which an election petition could be filed to challenge a declared winner. If a candidate did not meet the constitutional qualifications for the office they were elected to, the election could be challenged and potentially overturned through the tribunal process.
The NDC contends that Section 138 of the new Electoral Act has “conspicuously removed” this ground, creating a situation where a candidate who does not meet the constitutional requirements for office, such as the educational qualification provisions, cannot be challenged after being declared the winner.
The party argues this removal is inconsistent with multiple provisions of the 1999 Constitution that prescribe specific qualifications for holders of elective office.
For the National Assembly, Sections 65(2)(a) and 66(1)(i) prescribe qualifications and disqualifications for membership of the Senate and House of Representatives. For State Houses of Assembly, Sections 106(1)(c) and 107(1)(i) prescribe equivalent requirements. For the President, Sections 131(1)(d) and 137(1)(j) set out qualifications and disqualifications. And for governors, Sections 177(1)(d) and 182(1)(j) do the same.
The NDC’s argument is straightforward: the Constitution prescribes qualifications for these offices, meaning unqualified persons are constitutionally barred from holding them. If the Electoral Act removes the ability to challenge a winner’s qualification through the election petition process, it effectively renders the constitutional requirements unenforceable after an election is concluded, which is inconsistent with the Constitution and therefore null and void.
The party is asking the court not only to strike down Section 138 but to direct the National Assembly to “amend and re-enact a new provision” restoring qualification as a ground for challenging election results, in line with the constitutional requirements.
The NDC’s second challenge targets Section 77(5) of the Electoral Act 2026, which provides that only members whose names are contained in a political party’s digital register transmitted to INEC 21 days before a primary election or convention will be eligible to participate in the primary.
The party argues this provision is inconsistent with the 1999 Constitution on multiple grounds.
First, it contends the provision violates Section 40 of the Constitution, which guarantees the right to freedom of association, including the right to form, participate in, or belong to any political party. By restricting primary participation to members on a digital register submitted 21 days before the primary, the provision effectively creates a cut-off that prevents new members or those whose names were not captured on the register from exercising their constitutional right to political participation.
Second, the NDC argues the provision is inconsistent with Sections 65(2)(b), 106(1)(d), 131(1)(c), and 177(1)(c) of the Constitution, which prescribe conditions for candidacy including membership of a political party but do not impose durational requirements for such membership.
The party’s legal adviser, as deposed in the supporting affidavit, observed that the Constitution “did not provide for duration which a citizen must be a member of a political party to be eligible to contest for an election.” The 21-day digital register rule effectively creates a durational requirement that the Constitution does not contemplate.
The affidavit also noted the practical impact of the provision, stating that from experience, “members who are dissatisfied by the conduct of primaries in their respective parties usually seek refuge in other parties to enable them participate in the general elections.” The 21-day rule makes such movement practically impossible if the member’s name does not appear on the new party’s register transmitted to INEC 21 days before its primaries.
The NDC’s constitutional challenge addresses two provisions that have generated widespread criticism since the Electoral Act 2026 was signed into law by President Tinubu on February 18, 2026, following passage by the National Assembly under the stewardship of Senate President Akpabio and the Clerk of the National Assembly.
The removal of qualification as a ground for election challenge has been particularly controversial. Certificate forgery and fraudulent claims of educational qualification have been recurring issues in Nigerian elections, and the ability to challenge a winner’s qualifications through election petitions served as a deterrent and accountability mechanism. Its removal has been described by critics as an invitation to unqualified candidates to contest and win elections with impunity, knowing their qualifications cannot be challenged after the fact.
The Inter-Party Advisory Council, comprising all registered political parties, has collectively described the Electoral Act 2026 as “a significant regression” and demanded its repeal, citing these provisions among others.
The NBA-SPIDEL National Workshop on Electoral Reforms, held on April 14 at the NBA Auditorium in Abuja, assembled Senior Advocates, Justices, and Professors to examine the innovations and controversies of the Act, with specific sessions on the “Hard Evidence Hurdle,” “Technicalities vs. Merits,” and the “Legislative Intent of the 2026 Amendments.”
The NDC has asked the court to affirm its power under Section 6(6)(a) and (b) of the 1999 Constitution to strike down any provisions of the Electoral Act found to be inconsistent with the Constitution.
This power is well-established in Nigerian constitutional jurisprudence. The 1999 Constitution is the supreme law of the land, and any law that is inconsistent with it is void to the extent of the inconsistency. The courts have the authority and indeed the duty to declare such laws unconstitutional when properly challenged.
If the Federal High Court agrees with the NDC’s arguments and strikes down Sections 138 and 77(5), it would create a situation where those provisions cannot be enforced for the 2027 elections unless the judgment is overturned on appeal, potentially restoring qualification as a challenge ground and removing the 21-day register restriction.
If the court dismisses the suit, the provisions would remain in force, and candidates for the 2027 elections would be subject to the new rules, including the inability to challenge winners on qualification grounds and the 21-day digital register requirement for primary participation.
The NDC brings the suit as a registered political party and stakeholder in the Nigerian electoral process. Its supporting affidavit, deposed to by litigation secretary Ezechi Adaobi, states that the party “will in future elections field candidates for elections, including the office of the president,” establishing its standing to challenge provisions of the Electoral Act that affect its capacity to participate in elections and challenge results.
The party’s recent registration on February 5, 2026, and its attraction of a sitting senator in Seriake Dickson, who defected from the PDP, suggest it is positioning itself as an active participant in the 2027 electoral cycle rather than a dormant entity.
The matter is adjourned to May 7 for hearing, by which time the AGF, Clerk of the National Assembly, and Akpabio are expected to have filed their responses to the originating summons.
INEC, represented by Chief Alex Iziyon SAN, was present in court on Thursday but has not yet indicated its position on the constitutional challenge.
The case will be closely watched by all political parties, election lawyers, and civil society organisations as it potentially determines whether two of the most controversial provisions of the Electoral Act 2026 will survive constitutional scrutiny or be struck down before the 2027 elections.
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