By Mustapha Babalola Toheeb
I. Introduction
Nigeria’s party primary elections have long been regarded as the most contested, and least regulated, stage of the democratic process. For decades, the nomination of candidates by political parties was marked by delegate manipulation, parallel congresses, illegal exclusions of aspirants, and brazen substitutions of validly elected candidates. The repealed Electoral Act No. 13 of 2022 made modest inroads into these pathologies, but its toleration of indirect (delegate) primaries and its ambiguous framework for judicial oversight left significant room for abuse.[1]
As at the time of writing this essay, the political parties have begun to make preparations for their upcoming party primaries which means this piece is coming out at the perfect time, I hope it serves as a guide to those who will be engaging in the selection process and everyone involved in the primary election process for our various political parties.
The Electoral Act, 2026 attempts a more radical reconfiguration of our electioneering process. Its primary elections provisions concentrated principally in sections 77, 82, 83, 84, 85, 86, 87, and 88 create a regime of direct democratic participation, enhanced state oversight, and carefully delimited judicial remedies. Understanding these provisions is essential not only for aspirants, party officials, and legal practitioners navigating the 2027 electoral season, but also for scholars of comparative constitutional law and democratic governance.
This paper proceeds in five parts. Part II examines the mandatory conduct of party primaries and the abolition of indirect delegate voting. Part III analyses the membership register requirements and their implications for aspirant eligibility. Part IV addresses the notice and monitoring framework. Part V explores the prohibition on extra-constitutional nomination criteria and the restriction on political appointees. Part VI examines the remedial architecture which is the right of aggrieved aspirants, the jurisdiction of the Federal High Court, and the prohibition on courts halting primaries.
II. Mandatory Party Primaries and the Abolition of Indirect Voting
Section 84(1) of the Electoral Act, 2026 provides that every political party “seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions,” and that such primaries “shall be monitored by the Commission.” The language is mandatory, not permissive, and its scope is universal: it applies to every elective position from the Presidency to local councillorship.[2]
More consequential is section 84(2), which states that “the procedure for the nomination of candidates by political parties for the various elective positions shall be by direct primaries or consensus.” The phrase “direct primaries or consensus” carries significant technical meaning. It eliminates the third mode of nomination that had been available under the repealed 2022 Act which is indirect primaries conducted by delegates. Under the delegate system, aspirants routinely offered cash and material benefits to influence the votes of often small numbers of party delegates at congresses and conventions. By confining valid nomination to direct voting by all registered party members or genuine consensus, the legislature has removed the primary institutional mechanism for monetised candidate selection.[3]
Section 86 provides that “all direct primaries shall be conducted in accordance with the guidelines of each political party,” preserving a degree of internal party autonomy in procedural design.
2.1 The Consensus Candidate Procedure
Sections 87(1) through 87(3) create a carefully scaffolded procedure for the adoption of consensus candidates. Under section 87(1), a party that elects the consensus route must “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.” The requirement of written consent from all cleared aspirants, as opposed to a mere majority, prevents the practice of imposing a consensus candidate over the objections of competing aspirants.[4]
Where written consent cannot be secured from all aspirants, section 87(2) mandates a reversion to direct primaries. This is a structural safeguard against manufactured consensus; a party cannot bypass the primaries by obtaining the consent of a compliant majority while sidelining a dissenting minority. Section 87(3) further requires that “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,” adding a further layer of formal democratic validation even in the consensus track.[5]
III. The Membership Register Requirement
Among the most operationally consequential innovations of the Electoral Act, 2026, is the digital membership register framework in section 77. Section 77(2) mandates that “a party shall maintain a digital register of its members containing the name, sex, date of birth, address, State, Local Government, ward, polling unit, National Identification Number and photograph in both hard and soft copies.” The inclusion of the National Identification Number links party membership to the national biometric database, making fraudulent registration significantly more difficult.[6]
Section 77(4) requires every political party to submit this register to INEC “not later than 21 days before the date fixed for the party primaries, congresses or conventions.” Section 77(5) then provides that “only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions,” and section 77(6) categorically prohibits the use of “any other register for party primaries, congresses and conventions except the register submitted to the Commission.”[7]
The cumulative effect of these provisions is that the membership register is effectively frozen 21 days before any primary. An aspirant who is not on the frozen register cannot contest a primary, and any candidate whose name is not on that register cannot be validly nominated. This has particular significance for late-switching political actors: a candidate who loses a primary in one party cannot contest another party’s primary if their name does not appear on that party’s pre-submitted register.[8]
Section 77(7) provides the ultimate sanction when it stated that a party that fails to submit the membership register within the stipulated time shall not be eligible to field a candidate for that election. The sanction is not directed at the aspirant but at the party itself. The practical consequence is total exclusion from the relevant election, a significant deterrent against the careless or strategic withholding of membership data.
IV. INEC Monitoring and the Notice Requirement
The Electoral Act, 2026 establishes a two-pronged mechanism for state oversight of party primaries: mandatory advance notice and active INEC monitoring. Section 82(1) requires every registered political party to give INEC “at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of… nominating candidates for any of the elective offices.” Section 82(2) specifies that the notice must include “the date, time, venue, and names of the members of the congress, convention or conference committee as spelt out in the party’s constitution.”[9]
Section 82(6) provides that “failure of a political party to notify the Commission as stated in subsections (1) and (2) shall render the primaries, convention, congress, and conferences invalid.” The invalidity operates automatically upon proof of the notice defect; no further court order is strictly required to establish the nullity, though a declaratory action in the Federal High Court provides the clearest evidentiary record for subsequent proceedings.[10]
Section 82(3) empowers INEC to “attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of… electing candidates for an election at any level,” whether or not it has received prior notice. Section 83(3) further mandates that INEC “shall keep records of the activities of all registered political parties.”[11]
It bears emphasis that INEC’s monitoring role, while creating a presumption of regularity when conducted properly, does not by itself confer legitimacy on a procedurally defective primary.
V. Prohibition on Extra-Constitutional Criteria and the Bar on Political Appointees
Section 85 of the Electoral Act, 2026 provides that “a political party shall not impose nomination, qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution.” This is a restatement of the constitutional supremacy principle in the candidate nomination context and the permissible grounds of disqualification are exhaustively defined in the Constitution and cannot be supplemented by party rule.[12]
Any party that imposes whether formally in its constitution or informally through its screening committees criteria beyond those in the constitutionally creates a ground of challenge that any affected aspirant may pursue. The practical examples are numerous such age caps above or below the constitutional minimum, educational qualifications beyond those the Constitution requires, state of origin restrictions not embedded in the Constitution, or financial contributions as conditions of screening clearance.
Section 88(1) introduces a distinct prohibition targeted at political appointees. It provides that “a political appointee at any level shall not be a voting delegate or be voted for at the convention, congress, and primaries of any political party for the purpose of the nomination of candidates for any election.” The provision, which parallels section 84(12) of the repealed 2022 Act.
VI. The Remedial Architecture
Section 88(2) provides the primary remedial avenue for aggrieved aspirants. It states that an aspirant “who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.” The jurisdiction is exclusive to the Federal High Court; no State High Court has concurrent power over pre-election matters arising from party primaries.[13]
The remedy available upon a successful application is significant particularly in section 88(3) which provides that “where a court finds that a political party failed to comply with the provisions of this Act in the conduct of its primaries, its candidate for that election shall not be included in the election for the particular position in issue.” This is a remedy for disqualification rather than substitution; the winning primary candidate is excluded, but the court does not impose a replacement. The party may then be required to conduct a fresh primary within the available timeframe.[14]
Section 88(4) creates an important limitation on these remedies: “Nothing in this section shall empower the courts to stop the holding of primaries or general elections under this Act pending the determination of a suit.” No interim or interlocutory injunction can halt a primary or a general election, regardless of the apparent strength of the applicant’s case. The legislature’s objective is plainly to prevent strategic litigation from being used to frustrate the electoral calendar. Critics, however, note that this provision, combined with the constitutional timelines for pre-election matters under section 285 of the 1999 Constitution, creates a structural accountability gap.[15]
Section 29(1) provides that parties must submit their lists of nominated candidates “not later than 120 days before the date appointed for a general election.” With primaries scheduled for completion by late May 2026 for the January 2027 general elections, qualification challenges filed at the time of a primary could remain undetermined well after the general election has been conducted. Section 138(2) compounds this gap by limiting grounds for post-election petitions to those in section 138(1), which does not include primary irregularities. An aspirant whose exclusion from a primary cannot be remedied before the election date is therefore left without an effective post-election avenue of redress.[16]
The jurisdiction-ousting provision in section 83(5), which provides that “no court in Nigeria shall entertain jurisdiction over any suit or matter about the internal affairs of a political party,” sits in some tension with the right of action in section 88(2). The better view is that section 83(5) is a general provision addressed to purely internal party affairs, while section 88(2) creates a specific statutory exception for cases of non-compliance with the Act or party guidelines in the nomination process. Where the two provisions conflict, the specific provision should govern.
VII. Conclusion
The Electoral Act, 2026’s primary elections provisions represent a thoughtful, if not wholly consistent, legislative response to the systemic pathologies of Nigerian candidate selection. The abolition of indirect primaries, the mandatory digital membership register, the 21-day notice requirement, and the prohibition on extra-constitutional qualification criteria are all coherent reform measures with credible deterrent logic. The Act is, however, weakened by three interrelated structural deficiencies which are the bar on injunctions under section 88(4) combined with compressed electoral timelines creates a window within which a disqualified candidate may proceed unchallenged; the tension between section 83(5) and section 88(2) generates jurisdictional uncertainty; and the limitation of post-election petition grounds under section 138(1) effectively forecloses retroactive accountability for primary irregularities that are not resolved pre-election.
Future amendments should consider the introduction of a fast-track mandatory timeline for pre-election matters, clearer delineation of the boundary between internal party affairs and statutory compliance challenges, and the extension of post-election petition grounds to encompass primary irregularities that could not reasonably have been litigated pre-election.
ABOUT THE AUTHOR
Mustapha Babalola Toheeb is a lawyer who practices in Lagos, and he is interested in dispute resolution,, tax, general advocacy, legal writing and public awareness of laws. In his free time, he is either watching his beloved Manchester United football team in action, or he is preparing his favorite meal. He can be reached via whatsapp-08106244073 or [email protected].
[1]Electoral Act, 2026 (Nigeria), Explanatory Memorandum. Signed by President Bola Ahmed Tinubu on 18 February 2026, repealing Electoral Act No. 13 of 2022.
[2]Electoral Act, 2026, s 84(1). The obligation to hold INEC-monitored primaries is mandatory; parties have no discretion to bypass this requirement.
[3]Electoral Act, 2026, s 84(2).
[4]Electoral Act, 2026, s 87(1).
[5]Electoral Act, 2026, s 87(2)–(3). The reversion to direct primaries acts as a safeguard against elite capture through manufactured consensus.
[6]Electoral Act, 2026, s 77(2)–(6). The digital membership register requirement is one of the most operationally significant innovations of the 2026 Act.
[7]National Network Online, ‘2026 Electoral Law: Restriction on Double Membership, Decamping After Party Primaries, Punishment’ (18 March 2026) <https://nationalnetworkonline.com>.
[8]Electoral Act, 2026, s 77(7). The disqualification sanction operates automatically upon INEC’s confirmation that the register was not submitted within time.
[9]Electoral Act, 2026, s 82(1)–(2). Failure to give the 21-day notice is therefore not a mere procedural irregularity but renders the entire primary invalid: s 82(6).
[10]Electoral Act, 2026, s 82(6). This provision closes the loophole that previously allowed parties to conduct surprise congresses and present INEC with a fait accompli.
[11]Electoral Act, 2026, s 83(3) read with ss 82(3)–(4). The monitoring role of INEC does not, however, confer legitimacy on an otherwise invalid primary: Sani v APC & Ors (2023) LPELR-60002 (SC).
[12]Electoral Act, 2026, s 85. The permissible grounds of disqualification are those contained in ss 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
[13]Electoral Act, 2026, s 88(2). The jurisdiction of the Federal High Court in pre-election matters is exclusive; the High Courts of States have no concurrent jurisdiction.
[14]Electoral Act, 2026, s 88(3). The sanction of exclusion from the election is imposed directly by the court; it does not require a further application to INEC.
[15]Electoral Act, 2026, s 88(4).
[16]Electoral Act, 2026, s 29(1).
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