June 01 (THEWILL) — Two judgements with more similarities than differences directing the Independent National Electoral Commission, INEC, to follow provisions on the Electoral Act 2026 and give political parties more room to operate outside the Commission’s election timetable for the 2027 General Election has polarised pundits and created more confusion. Are we at a judicial crossroads with the decisions of Justices Umar and Omotosho on INEC’s electoral guidelines? Dr. Monday Ubani, a Senior Advocate of Nigeria, SAN, queried at the weekend.
The answer to his question may be found in the response of two learned colleagues, Mr Femi Falana, a Senior Advocate of Nigeria, SAN, and Professor Chidi Odinkalu, a former National Chairman of the National Human Rights Commission.
Falana in a statement, entitled ‘Nigerian Judges and Lawyers Should Be Prevented from Sabotaging the 2027 General Election’, Falana faulted recent judgments delivered by judges of the Federal High Court on the powers of INEC regarding election timelines and called on the judicial authorities to intervene before the polity is thrown into a turmoil.
THEWILL recalls that over a week ago, Justice Mohammed Umar of the Federal High Court in a suit filed by Youth Party, nullified INEC’s timeline for the conduct of party primaries, nomination of candidates, May 10, 2026 deadline for parties to submit membership registers and databases ahead of the 2027 election.
According to Justice Umar, the “timeframe announced by INEC for political parties to conduct primaries and submit, withdraw or replace candidates “is inconsistent with the provisions of the Electoral Act, 2026.” Almost a week later, Justice James Omotosho of a Federal High Court in Abuja granted INEC some relief in a similar suit filed by the Social Democratic Party, SDP.
Justice Omotosho held that INEC had the constitutional authority to fix timetables for political parties but faulted aspects of INEC’s revised timetable dealing with candidate substitution and submission deadlines.
He noted that Section 31 of the Electoral Act allows political parties to communicate the withdrawal of candidates to INEC not later than 90 days before an election. According to the court, the dates fixed by INEC for submission of withdrawals and sworn affidavits effectively reduced the period guaranteed under the law.
INEC in its appeal averred that the lower court erred when it held that political parties were only required to notify the commission 21 days before conducting primaries, congresses or conventions and that the commission lacked authority to impose additional timelines outside those expressly prescribed by the Electoral Act.
INEC also urged the appellate court to strike out the suit filed by the Youth Party because the party lacked the legal standing to institute the action.
In Falana’s estimation, judgements by the Justices of the Federal High Court have complicated the matter and created uncertainty in the polity, particularly Omotosho’s ruling at a time INEC had appealed Justice Umar’s ruling and filed a motion for a stay of execution pending the Court of Appeal’s determination of the appeal. He volunteered to take up the appeal and urged the Nigeria Judicial Commission, NJC and the Nigerian Bar Association, NBA to “urgently investigate the circumstances surrounding the judgments in Youth Party vs INEC and SDP v INEC, “warning that “failure to address the issue could threaten the credibility of the 2027 election.”
Responding to Falana’s position, Prof. Odinkalu, who praised Justice Omotosho for the speed with which the judgement was delivered and for making copies of the ruling available to the public afterwards, stated that INEC may as well respect the judgements. He reminded Falana that Justice Omotosho, has been cleared for elevation to the Court of Appeal and who is to say he cannot anticipatorily exercise powers that will shortly crystalize?”
While these back and for the legal cross-examinations are going, there is another pending suit, this time by the Nigeria Democratic Congress, NDC, before the same Justice Umar. The hearing on the suit comes up on June 9, 2026. The NDC is seeking to nullify Sections 138 and 77(5) of the Electoral Act, 2026
The matter, which was scheduled for a hearing before Justice Mohammed Umar on May 25 could not proceed following the judge’s absence from court due to another official engagement. Justice Umar had earlier fixed May 25 for a hearing after the matter came up on May 8.
Although counsel to the plaintiff, Vincent Ottaokpukpu, and lawyers representing the defendants, including O.J. Opawale was present in court, the case was stalled and subsequently adjourned. The NDC instituted the suit marked FHC/ABJ/CS/635/2026, challenging the constitutionality of specific provisions of the newly enacted Electoral Act, 2026.
Listed as defendants in the suit are the Attorney-General of the Federation (AGF), the Clerk of the National Assembly, Senate President Godswill Akpabio and INEC.
In the originating summons filed on March 27 by Ottaokpukpu, the party is asking the court to strike down Section 138 of the Electoral Act, 2026, on the grounds that it allegedly conflicts with several provisions of the 1999 Constitution (as amended) relating to qualification and disqualification criteria for elective offices.
The plaintiff argued that the provision unlawfully removed “qualification” as a ground for challenging the election of candidates into offices such as president, governor, Senate, House of Representatives and state Houses of Assembly.
The NDC is therefore seeking an order compelling the National Assembly and relevant authorities to amend and re-enact a new provision restoring qualification as a valid basis for election petitions in line with constitutional provisions.
The party is also contesting Section 77(5) of the Electoral Act, 2026, which stipulates that only party members whose names appear in the digital membership register submitted to INEC at least 21 days before a primary election or convention would be eligible to participate in such primaries.
According to the NDC, the section violates constitutional guarantees of freedom of association and eligibility for political participation, arguing that the Constitution does not prescribe any minimum duration of political party membership before a citizen can contest elections.
In an affidavit supporting the suit, a litigation secretary in the law firm of V-C Ottaokpukpu & Associates, Ezechi Adaobi, stated that the NDC, as a stakeholder in Nigeria’s democratic process, intends to field candidates in future elections, including the presidential poll. She averred that the National Assembly passed the Electoral Act, 2026, on February 18, and that President Bola Tinubu assented to it the following day upon the recommendation of the AGF.
Adaobi further stated that the party’s national legal adviser observed that Section 77(5) could disenfranchise politicians who defect to other parties shortly before elections after disputes arising from party primaries.
“From experience, members who are dissatisfied with the conduct of primaries in their respective parties usually seek refuge in other parties to enable them to participate in the general elections”, she stated.
She urged the court to grant the reliefs sought in the interest of justice and constitutional compliance. However, INEC, in a counter-affidavit filed on April 27, opposed the suit and defended the legality of the Electoral Act, 2026.
The commission maintained that the National Assembly had validly enacted the law in accordance with constitutional procedures and that President Tinubu’s assent made it binding across the federation. INEC argued that Section 77(5) does not infringe on citizens’ constitutional rights to form, join or participate in political parties.
The electoral body further stated that its timetable for party primaries, fixed between April 23 and May 30, provides a 38-day window for political parties to conduct primaries and resolve disputes, in compliance with the Electoral Act and constitutional requirements.
INEC, therefore, urged the court to dismiss the suit.
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