Electoral Act 2026: Old Wine, New Bottle!

The Advocate By Onikepo Braithwaite Onikepo.braithwaite@thisdaylive.com

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

The National Assembly (NASS) has been in the spotlight lately, on account of the somewhat  impactless amendments that were made to the Electoral Act 2022 (EA 2022), particularly on the electronic transmission of results. Sadly, many Nigerians do not believe that NASS has ever played its role properly in the Fourth Republic, believing that, had NASS performed optimally, stemming from the enactment of good laws, we would have benefited from more positive changes in the country.

We can start by scrutinising the functions of NASS, and situating them, if possible, with some of the issues on the front burner in Nigeria today, to determine whether there is any merit whatsoever, to the people’s opinion of NASS.

Functions and Powers of the National Assembly

Sections 4(1)-(5), 8, 9, 11(1)-(4), 58, 88, 89, 143, 305(2), 6(b)-(d), (and the Exclusive and Concurrent Legislative Lists) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) set out the functions of NASS. These duties range from making laws for the peace, order and good government of the Federation, to the creation of States and boundaries; amendment of the Constitution; approving the budget and passing the appropriation Bill; taking over the role of any of the State Houses of Assembly (SHA) when they are unable to perform (except the power to remove a Governor); overriding the President and enacting laws, should the President fail to assent to Bills; investigative and oversight functions, screening of appointees for various offices, including Ministers; removal of the President and Vice President for gross misconduct; and giving approval or withholding of same, when a state of emergency is proclaimed by the President or a Governor,, and extending such a Proclamation – see INEC v Musa (2003) LPELR-24927(SC) per Emmanuel Olayinka Ayoola, JSC, on the legislative functions of NASS; SPDC (Nig) Ltd v Speaker, House of Representatives & Anor (2023) LPELR-59844(CA) per Mohammed Mustapha, JCA, on the investigative powers of NASS.

From the foregoing, it is obvious that indeed, NASS has a very active and important role to play in nation building, as its functions are extensive. Though the primary purpose of government is the security and the welfare of the people (see Section 14(2)(b) of the Constitution), regrettably, Nigerians believe that the primary purpose of the Nigerian Legislature, whether Federal or State  (like majority of Politicians), is self-interest, self-perpetuation and self-preservation, instead of representing the interests of Nigerian citizens; that instead of acting as a check and balance, particularly on the Executive arm of government, and holding it accountable, NASS has mostly been too cosy with the Executive, simply capitulating its wishes. Worse still, most SHA, appear to be under the control of their Governors. Gone are the days when Governors were impeached and removed (Rivers State excepted); now Governors use their SHA to remove their Deputies at will, and to do their bidding.

Insecurity

Take for example, the issue of insecurity in Nigeria, we only always blame the Executive for insecurity, or the Judiciary, when we are not happy with decisions in cases that have arisen from insecurity, for instance, Appeal No. SC/CR/1026/2022 Judgement delivered on March 7, 2025 Sunday Jackson v The State per Mohammed Baba Idris, JSC (Helen Moronkeji Ogunwumiju, JSC, Dissenting).

But, is the Legislature blameless? I think not. With security being  paramount, one would have imagined that, over the years, NASS would have taken the problem of insecurity more seriously. NASS, in conjunction with Houses of Assembly of two thirds of the States (see Section 9(2) of the Constitution), could have amended Section 214(1) of the Constitution to allow for State Police, or some effective alternative, instead of keeping it as a fruitless debate for over a quarter of a century!

Again, NASS and every SHA should have made laws prohibiting open grazing in FCT, Abuja, all the Federal roads and highways in Nigeria, and in the States respectively, since open grazing isn’t only an easy avenue for criminals to take advantage of to commit heinous crimes, but it has frequently led to clashes between Farmers and Herders who forcefully go into people’s farms to graze their cattle on their crops. Instead, there’s radio silence on it. See the 2017 Kogi State Case of State v Haruna Usman, in which 15 year old Usman, a Herder, was found guilty of culpable homicide punishable with death, but ordered to be held at the Governor’s pleasure because of his age, for stabbing one Happy David to death, having warned Usman not to graze his cattle on their farmland which had been sprayed with chemicals.

I watched a movie last week called “The Herd”, and it was an eye opener. In short, it was about a criminal gang that stole cattle belonging to Herders in Ekiti. They disguised themselves as Herders, and blocked the highway with cattle pretending to be herding them, and while the commuters waited for the fake Herdsmen to clear their cattle from the road before they could proceed, they opened fire on innocent commuters. All the commuters in the traffic back up, were kidnapped. A newly wed couple, were among the abductees. The bridegroom was shot and killed, his body subsequently cut into pieces, and sold to a Church Pastor who doubled as a human parts seller. The kidnappers asked for a ransom of N50 million for each abductee, and interestingly, the ransom was to be delivered to somewhere in Kogi State, not Ekiti. This movie depicted an organised criminal enterprise, using open grazing as its springboard, which, in reality, is a source of insecurity in Nigeria.

Surely, all hands should be on deck to stop it. Yet, NASS has continually failed to put in place the aforementioned laws that can cut open grazing, the feeder of this criminal enterprise from the root, in order to engender peace and order in Nigeria. It’s not only about debating on the budget for defence and arms on the floor of NASS, it is also about enacting effective laws that can complement budgetary and other efforts.

Electoral Act 2026

So, why is anyone surprised at the failure and neglect of NASS, in the matter of the amendment of the EA 2022 for a better electoral process to enhance democracy, when they have hitherto been so nonchalant about security, the primary purpose of government?

1) Religion

The purport of Section 10 of the Constitution, is that Nigeria is a secular State. Yet, with full knowledge of this, where NASS should have seized the opportunity to uphold the Constitution and reaffirm the fact that Nigeria is a secular State, in the EA 2026, NASS reduced the mandatory notice period for elections from 360 to 300 days, because some Muslims complained that the 2027 general elections would fall during the Ramadan season. With the reduction in the notice period, the election can hold anytime from about December 30th, 2026 and January 1st, 2027, 150 days before May 29 (see Section 132(2) of the Constitution).

Nigeria isn’t an Islamic State. It will also be Lent for the Christians during the original 2027 election dates set, but Christians didn’t  complain. The 2023 general elections, took place during Lent. Religious practices, shouldn’t be a consideration.

2) Section 60(3): Electronic Transmission

The  new Section 60(3) of the EA 2026, is inconsequential. While the initial version of the amendment by the House of Representatives appeared to be what Nigerians desire, in the harmonised version that was enacted, the proviso clearly states that, in all cases “….the Form EC8A shall remain the primary source of collation and declaration of the result”. When NASS should capitulate to the desires of the people, as in complete electronic transmission without this proviso, they don’t; when they shouldn’t, as in bringing religion into State contrary to Section 10 of the Constitution, they do!

Ordinarily, if we were in circumstances where election malpractice is rare, there would be nothing wrong with Section 60(3), because it settles any controversy about what prevails between Form EC8A and IREV, particularly for the purposes of election petitions. Unfortunately, allegations of election fraud and rigging are the order of the day in Nigeria, thereby shedding a different light on this provision. Should good laws not be made, to fit the prevailing circumstances?

For one, the purport of the proviso in Section 60(3) is that, the election process is more or less manual, which it is anyway, since what is imputed into IREV is from a manual Form EC8A. Secondly, if for example, the Form EC8A that was transmitted to the IREV in real time is subsequently altered with the connivance of the Presiding Officers, and IREV then differs from the contents of the physical Form EC8A, EC8A shall prevail. This proviso, in the Nigerian context, therefore, appears to be absurd, almost rendering the electronic transmission of results futile and nonsensical.

3) Section 84(2)

Nomination of candidates will only be by direct primaries or consensus candidate; no more indirect primaries. Again, this may have been a good initiative, but, in the Nigerian context, it is easily subject to abuse. Without proper INEC supervision, direct primaries could turn out to be somewhat anti-democratic, a way of ensuring that it is the Aspirants who the party leaders support, that will be the ones to secure the party tickets, while the richest Aspirant can simply pay off the others to become the Consensus Candidate. The indirect primaries, may have been a sort of compromise between both.

I remember in 2019, when APC used the direct primaries system in Lagos. I watched a video in which Delegates were openly threatened, with a severe warning that their leaders had issued instructions on how to vote, which must be followed. Since Delegates had to line up on specific queues earmarked for each candidate, there was no secret ballot – they were therefore, constrained to vote the way they were commanded to, in order to avoid any repercussions.

While Nigerians were fixated on electronic transmission of results, they forgot about how easy it will now be for unqualified candidates to be elected, particularly with the abolition of indirect primaries.

Some Surviving Loopholes

1) Section 29(5)

Some of the weighty loopholes, have survived the amendment exercise – Sections 29(5) & 135(1) of the EA 2022. I had argued in the past, that Section 29(5) of the EA 2022 allows only a person of the same political party who partook in the primaries, to challenge the constitutional requirements of the successful candidate at the Federal High Court as a pre-election matter, if it is suspected that such candidate gave false information in an affidavit or other documents to contest the election, and that this provision is too narrow. See Akinlade & Anor v INEC & Ors (2019) LPELR-55090(SC) per Ejembi Eko, JSC. That considering the fact that constitutional requirements are crucial, candidates from other parties who are involved in petitions related to suspected lying candidates, should also be able to raise questions about false qualifications in their election petitions, as they are also directly affected. Alas! There was Section 134(1)(a) & (3) of EA 2022, which appears to have allowed candidates to raise these issues in their petitions, but, it has now been deleted from the new Section 138 of the EA 2026 which replaces the old Section 134. Fellow Aspirants of the same party, may be reluctant to go to court.

2) Section 139(1)  Replacing the Old 135(1)

Section 138 of the EA 2026 replaces 134 of the EA 2022 on the grounds of an election petition, while the old Section 135(1) on noncompliance to the EA survived verbatim as 139(1) of the EA 2026. It provides for invalidation of an election for noncompliance, with a proviso that, if there was substantial compliance with the EA and the noncompliance didn’t substantially affect the outcome of the election, the election cannot be invalidated. See Buhari v INEC & Ors (2008) LPELR-814(SC) on substantial compliance. A heavy burden of proof, is placed on the Petitioner (see Wike v Peterside (2016) LPELR-40036(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), sometimes proof beyond reasonable doubt, as some of the noncompliances alleged during elections border on criminality.

This state of affairs hasn’t changed, under the EA 2026. For the Petitioner, it is still an uphill task. In Maku v Al-Makura & Ors (2016) LPELR-48123(SC) per Walter Samuel Nkanu Onnoghen, JSC (later CJN), the  Supreme Court held thus: “It is now settled law that, where a ground for challenging the return of a candidate in an election is by reason of corrupt practices or noncompliance with the provisions of the Electoral Act, the Petitioner has the duty of proving: (a) That the corrupt practice or noncompliance took place; and, (b) That the corrupt practice or noncompliance substantially affected the result of the election. See Section 138(1)(b) and 139(1) of the Electoral Act, 2010 (as amended)”. In Lawal v Adebayo & Ors (2009) LPELR-4023(CA) per Clara Bata Ogunbiyi, JCA (as she then was), the Court of Appeal held: “It is trite law….that where an election was so badly conducted that it was not substantially in accordance with the law under which it was conducted, the election remains vitiated and is liable to be nullified. This was laid down in the case of Onoh v Okey (1995) 5 NWLR (Pt.602) page 240”.

Conclusion

Whether in security or electoral matters, NASS doesn’t appear to have stepped up to the plate in the way that it should. In the 10th NASS, while the House of Representatives has sought to do better, in the Senate, it has mostly been business as usual, with the impression that the Senate may sometimes overwhelm the House into falling in line, as Nigerians have witnessed recently in two important and controversial legislations – the Tax Reform Acts, and now, the Electoral Amendment Act.

The bitter truth with respect to the EA 2026, is that the electoral process may be worse off, and as it stands, what transpired following the 2023 general elections will recur in 2027 – there may most likely be a bevy of election petitions. Let us wait and see!