NDC Loses Bid to Void Electoral Act Provision
A Federal High Court in Abuja has thrown out an attempt by the Nigeria Democratic Congress to nullify the section of the Electoral Act 2026 that stripped candidate qualification of its status as a ground for challenging election results, in a ruling that leaves one of the most contested reforms in the new electoral law standing barely five months to the 2027 general election.
Justice Muhammed Umar, delivering judgment on Tuesday in the suit marked FHC/ABJ/CS/635/2026, held that the party’s case lacked merit and that the disputed provisions complement rather than contradict the 1999 Constitution as amended. The NDC, registered by the Independent National Electoral Commission on February 5, 2026, had sued the Attorney General of the Federation, the Clerk of the National Assembly, Senate President Godswill Akpabio and INEC, asking the court to declare Sections 138 and 77(5) of the Act unconstitutional and to hold that questions bordering on the qualification of candidates could still be raised after votes are cast.
The provision at the centre of the dispute represents the single most consequential departure from the Electoral Act 2022. Section 134(1) of the repealed law recognised three grounds for questioning an election, including that the person whose election was questioned was, at the time of the election, not qualified to contest. Section 138(1) of the Electoral Act 2026, passed by the National Assembly on February 18, 2026 and assented to by President Bola Tinubu, limits petitions to two grounds only: that the election was invalid by reason of corrupt practices or non compliance with the Act, or that the respondent was not duly elected by a majority of lawful votes cast.
The practical effect, as documented in published legal commentary since the law took effect, is that certificate forgery and other qualification questions are now expelled from election petition tribunals and pushed entirely into the pre election window. Justice Umar endorsed that architecture. “The provision of Section 138 of the Electoral Act 2026 complements the provision of the Constitution but is not in conflict with it. The contention of the plaintiff that Section 138 is inconsistent with the Constitution is of no merit,” the court held.
The judge added that the Constitution prescribes qualification and disqualification for elective offices, while the Electoral Act merely supplies the procedure and timeline for ventilating disputes arising from party primaries. He also upheld a preliminary objection by the Clerk of the National Assembly, ruling that the failure to serve a pre action notice rendered the suit incompetent against the second defendant, and that the attachment of INEC’s timetable did not convert the case into a pre election matter. “The fact that the defendant’s timetable is attached cannot make the case fall within the contemplation of Section 285,” the court said.
The judgment lands in a season of unusually heavy judicial traffic around the 2026 statute. On July 16, a three member panel of the Court of Appeal in Abuja led by Justice Balkisu Bello Aliyu, with the lead judgment delivered by Justice Eberechi Nyesom-Wike, struck down Sections 77(5), (6) and (7) as well as 84(2) of the same Act in appeal CA/ABJ/CV/750/2026 filed by the Zenith Party against INEC. The panel held the provisions inconsistent with Sections 221 and 222 of the Constitution, which vest in political parties the right to determine whom they sponsor. That appeal arose from Justice Umar’s own May 5, 2026 decision dismissing the party’s challenge. On Tuesday, he acknowledged that the appellate ruling had settled the question of Section 77(5), which had required that only members listed in registers filed with INEC at least 21 days before primaries could vote.
Separately, another panel of the same court upheld INEC’s power to fix timetables, overturning a Federal High Court decision that had voided parts of the commission’s guidelines. INEC has maintained that the rulings do not disrupt its preparations, stating that “we are on course to deliver credible elections for Nigerians in 2027.”
Commission records show why lawmakers moved. INEC reported facing more than 1,000 pre election suits ahead of the 2023 general election, arising largely from party primaries, candidate substitutions and failures by parties to obey their own constitutions, and it withdrew and reissued seven certificates of return on court orders.
Post election litigation followed a similar curve. INEC data shows 663 petitions filed after the 2015 elections, with 87, or 13.1 per cent, resulting in nullifications; 807 petitions after 2019, with re runs ordered in 30 constituencies, or 3.71 per cent, made up of three senatorial districts, 13 federal constituencies and 14 state constituencies; and 1,196 petitions after 2023, of which 891 were dismissed or withdrawn. Media tallies of the 2023 tribunal season recorded 25 House of Representatives members and five senators removed at first instance, several on certificate related findings, with most decisions subsequently appealed.
Qualification disputes have repeatedly reshaped outcomes. The Supreme Court’s February 13, 2020 judgment in the Bayelsa governorship case removed the declared winner over discrepancies in his running mate’s documents, days before inauguration. Its May 2019 decision on Zamfara voided an entire slate of candidates for want of valid primaries.
Published analyses of the new Act, including commentary by legal practitioners and policy institutes since March 2026, argue that the pre election route cannot fully absorb what Section 138 removed. Section 88(4) bars any court from halting a primary or an election on account of pending litigation, while Section 285 of the Constitution allows 14 days to file, 180 days for judgment and 60 days for appeal. A challenge filed on the day of a primary may therefore remain undecided long after a winner is sworn in.
Criticism has been sharp in parts of the bar, with Chief J. S. Okutepa, SAN, publicly faulting the narrowing of grounds and the accompanying sanctions regime, a position other lawyers have contested in written rejoinders. Supporters of the reform argue in published pieces that election petitions have always been creatures of statute and that the burden now falls on parties to screen candidates properly.
INEC issued its notice of election on February 13, 2026, giving the statutory 300 days. All 22 registered parties filed membership registers by May 8, two days before the extended deadline of May 10. Primaries ran from April 23 to May 30, 2026, and at least eight APC senatorial aspirants have gone to the Federal High Court over those contests. Nomination forms for presidential and National Assembly candidates were filed between June 27 and July 11, with governorship and state assembly submissions closing on August 8. Final candidate lists are due on September 12 and October 10, 2026, campaigns began on August 19 for the national polls, and voting holds on January 16 and February 6, 2027.
The Chief Judge of the Federal High Court, Justice John Tsoho, has issued fresh Pre Election Practice Directions for 2026, replacing the 2022 rules. Whether Tuesday’s judgment survives appeal remains open, as does a separate Kano suit, marked FHC/K/CS/312/2026, in which a plaintiff seeks President Tinubu’s disqualification over allegations he has consistently denied and which the Supreme Court examined and rejected on October 26, 2023.