By K.P. NWODO
As Nigeria races towards another election cycle, political machineries are currently being oiled and the engine of intense politicking ignited, ahead of a long, arduous journey to power in 2027. The last few weeks have been a spectacle; a demonstration of the cinematic, blockbuster dimension of politics in Nigeria.
We have witnessed unexpected defections of key political actors across different political parties, surprising alignments, uncurling of previous alignments, court decisions that have foisted more uncertainty than clarity amongst political parties caught in a web of internal bickering, and headline outcomes from screening exercises in some political parties. As the clock clicks and time moves on a skate, political parties are keen on meeting INEC’s timeline for the conduct of primaries, and politicians twitchy about their ambitions being prematurely interred at the primaries.
Unlike previous cycles where politicians enjoyed the liberty of jumping ship to another political party when they find themselves on the losing side of a primary, the current dispensation heralded by the 2026 Electoral Act appears to have to have terminated that practice. Vanquished politicians are pink-slipped doors shut, and windows sealed for politicians looking to jump out to explore their ambitions elsewhere; or supposedly so. This broad conclusion is inferred from an interpretation of Section 77 of the Electoral Act (as amended 2026), and at first glance, it appears unassailable.
But appearances can be deceptive.
This article does not dispute the logic of that conclusion. Rather, it interrogates its completeness. A careful reading of Section 77 alongside other relevant provisions of the Act reveals that the bar against post-primary decamping is not as absolute as widely assumed. The restriction, properly construed, operates within a narrower lane than the popular narrative suggests. It is against this backdrop that a closer legal examination becomes necessary. Precisely, to interrogate whether the much-cited Section 77 of the Electoral Act (as amended 2026) achieves the ironclad effect that most commentators and politicians have assumed it does.
The Legal Framework — An Overview
As previously mentioned, the thrust of this issue orbits around the provision of Section 77 of the Electoral Act, precisely subsections 4-7 which are reproduced below:
(4) “Each political party shall make such register available to the Commission not
later than 21 days before the date fixed for the party primaries, congresses or
conventions.
(5) Only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions.
(6) A political party shall not use any other register for party primaries, congresses
and conventions except the register submitted to the Commission.
(7) A party that fails to submit the membership register within the stipulated time
shall not be eligible to field a candidate for that election.”
In the context of this article, the above provisions simply stipulate that political parties are statutorily mandated to use the registers submitted to INEC for primaries. The legislative intention deductible from the framing of the provisions is the preclusion of post-primary defection and the elimination of the itinerant culture of certain politicians in desperate search of party tickets to contest general elections. Under the current framework, the legal and practical effect for a decamping aspirant is bleak. It implies that having participated in the primary of Party A and lost, any defection to Party B would almost certainly come after Party B’s register has already been submitted to INEC, making the aspirant’s name conspicuously absent from it and therefore unqualified to participate in its primary.
This is where the analysis gets interesting. While the intention objectively appears noble, and the text at first glance seems comprehensively drafted leaving no crevice or lacunae for exploitation; upon further scrutiny, microscopic cracks begin to unravel.
A careful reading reveals that every operative restriction in Section 77 — from the register submission requirement to the eligibility criteria for participation — is expressly and exclusively tied to party primaries. The section speaks of registers for primaries, eligibility to vote and be voted for in primaries, and the prohibition against alternative registers for primaries. Nowhere does the section extend these restrictions to the other legally recognized method of candidate emergence under the Act: the consensus arrangement.
If the National Assembly intended to cloth primaries and consensus arrangements with same legal identity, it would have made it clear beyond speculation or equivocation. Our courts have reiterated numerously “that courts are not to speculate on the intentions of the legislature but must give effect to the clear and unambiguous language of a statute as enacted” SEE Ekeocha v. Civil Service Commission (1981) 1 N.C.L.R. 401.
To sharpen the inquiry, the crucial question at this juncture is: “Whether the Electoral Act draws any distinction (explicit or implicit) between primaries and consensus.
The Primaries vs. Consensus Distinction
The baseline from which we must examine this question is Section 84(2) of the Electoral Act which reads:
“(2) The procedure for the nomination of candidates by political parties for the
various elective positions shall be by direct primaries or consensus.”
The interpretation section of the Electoral Act unriddles the meaning of “primaries” as deployed in the Act. It defines a primary as: “intra-party election by voters of a given political party to nominate candidates for elective office in accordance with a political party’s constitution and the law”.
On the function of interpretation sections in statute, the Court has held that an interpretation clause is meant to give specific legal meaning to terms within that framework, binding the judge to use the statutory definitions over standard English dictionary meanings. SEE Okesuji v. Lawal (1991) 1 NWLR (Pt. 170) 661. That means, the recognized definition of the word “primary” in Nigeria’s electoral jurisprudence today is as posited by the interpretation section of the Act, to wit – an intra-party election by voters of a given political party.
The interpretation section is mute on the definition of consensus as contemplated within the Act. However, Section 87 casts light on its niceties. The said section is also reproduced below:
- (1) A political party that adopts a consensus candidate shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate.
(2) Where a political party is unable to secure the written consent of all cleared aspirants for the purpose of a consensus candidate, it shall revert to the choice of direct primaries for the nomination of candidates for the elective positions.
(3) A special convention or nomination congress shall be held to ratify the choice of consensus candidates at designated centres at the National, State, Senatorial, Federal and State Constituencies.
A calm perusal of the definition of “primary” and the procedure for consensus candidacy under the Act clearly shows they are very distinct processes. Whilst primaries as defined in the interpretation section entails voting by party members; consensus on the other hand requires the voluntary withdrawal of other aspirants. Therefore, where the method adopted by a party does not involve voting for aspirants by its members, that method not qualify as a primary in the strict sense. In view of this distinction, it is humbly submitted that section 77 (4), (5) and (6) does not apply to consensus candidates. In Adewunmi v. A-G Ekiti State (2002) 2 NWLR (Pt. 751) 474, the Court reinforced that “it is not the business of the court to amend or supply omissions in a statute based on what the legislature might have wished to write, but to enforce the literal text.”
The Consensus Loophole
As has been established above, The Electoral Act 2026 recognizes two distinct methods by which a political party may produce its candidate for an election. The first is the direct primary, where party members vote to determine the candidate. The second is the consensus arrangement, where aspirants and the party agree on a candidate without a formal vote. It is this second method that provides a lifeline for a decamped aspirant.
Consider this scenario: an aspirant contests Party A’s primary, loses, and decamps to Party B. Party B, rather than conducting a primary, opts to adopt its candidate through consensus. Because Section 77’s restrictions are expressly limited to primaries, the aspirant’s absence from Party B’s membership register submitted weeks before the defection presents no statutory barrier. The Act simply does not extend the register requirement to the consensus process. Party B can, on the face of the law as currently written, adopt the decamped aspirant as its consensus candidate without technically violating Section 77.
The logic of Section 77’s register requirement is fundamentally tied to the mechanics of a primary election involving voting by party members who must be bona fide, registered members of the party. The party register serves as the legal instrument that clothes members with eligibility to vote and be voted for in primaries. Its application to a consensus arrangement is nugatory.
In a consensus process, voting does not take place. Section 87 completely excludes voting in the breakdown of the process for the emergence of a consensus candidate. In the absence of voting, there is no electoral roll to consult. What transpires in that case is essentially a negotiated agreement among aspirants and party stakeholders to rally behind a single candidate. The question of whether an aspirant’s name appears in a membership register submitted to INEC weeks earlier simply does not arise, because the register performs no function in the consensus process. To import the register requirement into the consensus arrangement would require the court to read words into the statute that the legislature plainly did not include; something that is constitutionally impermissible under established principles of statutory interpretation. SEE A-G Bendel State v. A-G Federation (1982) 3 NCLR 1.
Locus Standi Debacle
Interestingly, this issue is further layered by the principle of locus standi and its strict application in Nigeria’s jurisprudence especially in political/election matters. The question arises where a political party (Party A) has adopted a defecting aspirant (who previously lost the primary of Party B) as its Candidate via a consensus arrangement. Even if the candidacy can be genuinely tested in court, who possesses the legal competence to institute such challenge?
By virtue of the harmony with which our courts have re-echoed the principle of locus standi in political litigation, effectively barring outsiders from questioning how a political party selected its candidate regardless of how aggrieved or how legitimate their concern is, the outcome of any legal challenge from outside the party in concern is as certain as gravity — collapse! SEE Alahassan and Another v Ishaku and Others [2016] NGSC 45. This principle creates a near-impenetrable shield around a consensus candidacy involving a decamped aspirant. The party that the aspirant abandoned cannot challenge the internal processes of the receiving party as the courts have firmly shut that door. Only fellow aspirants within the same party are legally competent to challenge the consensus process in court. This is however most unlikely given the fact that the whole essence of the consensus process in the first place is the express withdrawal and endorsement of the other aspirants. The door that Section 77 was designed to close may, in carefully managed circumstances, remain ajar not because the law wills it, but because the law, as drafted, did not anticipate it.
Conclusion
From the foregoing analysis, it is glaring that section 77 of the Electoral Act might not be as water-tight and legally impenetrable as widely conceived. An incisive analysis of the text in combination with other appurtenant provisions unveils a gap which may constitute a final lifeline to politicians whose ambitions are on the verge of drowning in the overwhelming, merciless tide of intra-party politics. A powerful aspirant with sufficient political capital to negotiate their way into a receiving party’s consensus process, and to secure the withdrawal of every other aspirant could effectively nullify the purpose of Section 77 entirely, while remaining, on the face of it, within the bounds of the law.
Compounded by the locus standi barrier that practically insulates consensus candidacies from judicial challenge, the risk is that post-primary decamping does not disappear under the 2026 Electoral Act. It simply migrates from the primary arena, where Section 77 can reach it, to the consensus arena, where the Act currently cannot.
The author, Kelechukwu Prosper Nwodo can be reached via email: [email protected] or 08134826624.
The post A Statute That Did Not Anticipate Itself: Post-Primary Decamping And The Unresolved Question Of The Electoral Act 2026 appeared first on TheNigeriaLawyer.
