- Institution and Scope
This opinion examines the recent Supreme Court decision restoring Sections 77(5)–(7) and 84(2) of the Electoral Act 2026, and situates that decision within the broader, still-unsettled controversy over post-primary defection and candidate substitution ahead of the 2027 general elections.
A caveat is necessary at the outset: the certified law report and full text of the judgment are not yet in the public domain. This opinion is therefore drawn from consistent, cross-corroborated news reporting (Vanguard, ThisDay, The Guardian, Premium Times, TheNigeriaLawyer, Tribune, PM News) of the ruling delivered on 24 September 2026. Any advice given to a client should be reconfirmed against the certified judgment once the Supreme Court’s registry releases it.
- Case Identity and Procedural History
Case: Independent National Electoral Commission v. Zenith Labour Party (consolidated with related appeals by the Social Democratic Party (SDP) and Youth Party (YP) against INEC)
Suit/Appeal No.: SC/CR/495/2026 (arising from CA/ABJ/CV/750/2026)
Panel: Seven Justices, lead judgment by Jauro, JSC
Date: 24 September 2026
PROCEDURAL CHAIN:
Federal High Court, Abuja (Umar, J.)- 5 May 2026 dismissed ZLP’s originating suit challenging the constitutionality of ss.77(5)-(7) and 84(2).
Court of Appeal, Abuja (lead judgment: Nyesom-Wike, JCA; panel led by Bello Aliyu, PJCA) 16 July 2026 allowed the appeal in part, voiding ss.77(5), 77(6), 77(7) and 84(2) as inconsistent with ss.221 and 222 of the 1999 Constitution (as altered), while leaving the general duty to maintain a membership register (ss.77(1)-(4)) intact.
Supreme Court, on 24 September 2026, allowed INEC’s appeal, set aside the Court of Appeal, restored the four subsections, and awarded ₦2,000,000 in costs against ZLP. Two related appeals (SDP and YP) were dismissed on the same reasoning.
- X-RAY OF THE PROVISIONS IN ISSUE
Section 77-Membership Register
-77(4): Each party must make its membership register available to INEC not later than 21 days before the date fixed for primaries, congresses or conventions.
– 77(5): Only persons whose names appear in that submitted register are eligible to vote or be voted for in the primaries, congresses or conventions.
-77(6): A party shall not use any register other than the one submitted to INEC for those exercises.
– 77(7): A party that fails to submit its register within the stipulated period is not eligible to field a candidate for the election.
Section 84-Nomination of Candidates
– 84(2): The procedure for nomination of candidates by political parties shall be by direct primaries or consensus.
– 84(9) (referenced in the wider debate, though not itself under challenge in this appeal): where a party adopts consensus, it must secure the written consent of every cleared aspirant, indicating voluntary withdrawal and endorsement of the consensus candidate.
Constitutional provisions pleaded by the respondents:
– Ss.221 and 222, 1999 Constitution (as altered): guarantee the exclusive right of political association and the internal organisational autonomy of political parties (registration, sponsorship of candidates).
–Ss.177 and 182: (relied on by the Court of Appeal) set out constitutional qualification/disqualification criteria for candidates, on the theory that subsidiary legislation cannot add to them.
- THE RIVAL POSITIONS AND THE SUPREME COURT’S HOLDING
ZLP/SDP/YP’s case: Ss.77(5)-(7) and 84(2) are subsidiary conditions that (a) impose disqualifying consequences (loss of eligibility to field a candidate) not found in the Constitution, and (b) intrude into parties’ constitutionally guaranteed autonomy over how they organise their internal affairs and select candidates, contrary to ss.221-222.
Court of Appeal’s reasoning (now reversed): Accepted this argument in part, it held that requiring parties to keep registers (ss.77(1)-(4)) was legitimate regulatory oversight, but that attaching disqualifying consequences for register non-compliance (77(5)-(7)), and confining nomination method to only two channels (84(2)), went beyond INEC’s constitutional monitoring role and amounted to Parliament adding qualification/disqualification criteria the Constitution did not authorise.
Supreme Court’s holding: The apex court held that Sections 77(5) and 84 of the Electoral Act do not conflict with the 1999 Constitution, restored all four impugned subsections, and criticised the Court of Appeal for not dismissing ZLP’s case in its entirety. In one report, the appeal was also treated as incompetent/filed out of time by a day, a threshold point that, if accurately reported, would itself have disposed of the Court of Appeal proceedings independent of the merits.
Legally, the operative ratio appears to be twofold:
- INEC’s power under s.153/s.160 (electoral administration) and its constitutional duty to monitor party organisation (s.228) extend to prescribing procedural mechanisms (registers, timelines, permissible nomination methods) that make internal party democracy verifiable, without thereby creating new substantive qualification/disqualification grounds under ss.65, 106, 131, 177 of the Constitution.
- A regulatory condition attaching to the process by which a party exercises its sponsorship right (how it proves whom its members chose) is distinguishable from a condition that disqualifies an individual who is otherwise constitutionally qualified; the former is within legislative competence; the latter would not be.
- The Distinct but Related Issue: Defection and Substitution
It is important, for legal accuracy, to separate three analytically distinct questions that are being run together in public commentary:
(a) The constitutionality question (decided by the Supreme Court)
Whether ss.77(5)-(7) and 84(2), as general provisions, are ultra vires the Constitution.
Answered: No-they are valid.
(b) The defection/consensus lacuna (not yet authoritatively decided)
Whether a person who contests and loses a primary in Party A can defect to Party B and emerge as Party B’s candidate through consensus, without their name ever having appeared on the membership register Party B submitted to INEC.
This is a statutory construction question, separate from the constitutionality question just decided. The textual argument (advanced in current commentary, e.g. Abidemi, and Baba Isa) runs as follows:
– S.77(5) and (6) are drafted exclusively around “party primaries, congresses or conventions.” Consensus is not mentioned.
– Under the expressio unius est exclusio alterius canon, and the settled principle that courts will not import words the legislature omitted, the register/21-day restriction in s.77 arguably does not extend to consensus candidates chosen under s.84(2).
– If correct, a party could lawfully onboard a recent defector as its flag bearer via consensus even though s.77 would have barred that same person from voting or being voted for in a direct primary.
This is a live, unresolved doctrinal gap. As of the most recent reporting, a High Court decision favouring defectors on this specific point is under appeal by INEC, and it is this question, not the ZLP constitutionality appeal, that the courts have yet to pronounce on authoritatively at appellate/Supreme Court level. The Supreme Court’s 24 September judgment, by upholding s.77(5)-(7) as constitutional, removes one line of attack (that the sections are void altogether) but does not resolve whether those valid sections, properly construed, reach consensus arrangements. A careful opinion should not overstate the judgment’s effect here: validity and scope are different questions.
(c) Substitution of candidates
Substitution is governed by a narrower, more settled doctrine, traceable to the leading authority Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227, where the Supreme Court held that while it is the party that contests and wins an election through its candidate, a party cannot act outside the law in substituting a candidate who has validly emerged from a primary.
Statutory safeguards (in the Electoral Act’s substitution provision, commonly s.33 across successive Acts) confine lawful substitution to narrow grounds, principally death of the candidate or the candidate’s own voluntary withdrawal, evidenced in the manner the Act prescribes, and require cogent, verifiable reasons, not mere party convenience.
The connection between defection and substitution is this: if a party, having conducted a valid primary, later attempts to displace the genuine winner in favour of a defector “consensus” candidate, that manoeuvre, however it is dressed up procedurally, risks being characterised by a reviewing court as an unlawful substitution in substance, regardless of the “consensus” label.
Amaechi remains the controlling authority that courts will look behind the form of a party’s internal process to protect a candidate who validly emerged, and will not reward substitution outside the statutory grounds. The pending Okorocha litigation (Imo West senatorial primary dispute, FHC/ABJ/CS/1854/2026) is precisely a live test of this principle, quite apart from the register/consensus defection debate.
- GENERAL IMPLICATIONS OF THE JUDGMENT IN LAW
- Legislative/regulatory competence affirmed. The judgment confirms that the National Assembly and, by delegation, INEC may impose verifiable procedural conditions on how parties exercise their sponsorship power, without those conditions being struck down as unconstitutional interference in party autonomy, provided the conditions regulate process rather than add to the Constitution’s closed list of individual qualifications/disqualifications. This is a significant affirmation of INEC’s regulatory reach over party primaries generally.
- Binding, final effect. As a decision of the apex court, it is final and binds all subordinate courts (Court of Appeal, Federal and State High Courts, Election Tribunals) by force of judicial precedent and s.235 of the Constitution. Parties preparing for 2027 must now conduct primaries, congresses and conventions strictly within the register-and-21-day framework, on pain of losing eligibility to field a candidate under s.77(7).
- It does not, by itself, close the defection/consensus loophole. Practitioners should advise clients that the constitutionality of ss.77 and 84 being settled is not the same as their scope over consensus nominations being settled. Until an appellate or Supreme Court pronouncement squarely construes s.77 against a consensus-defection fact pattern, parties using consensus to onboard recent defectors continue to operate, precisely the incentive structure likely to generate further litigation in the run-up to 2027.
- Practical/litigation forecast. Expect continued pre-election litigation (as already seen in Rivers, Edo, Ogun, Ondo, Lagos, Benue, Plateau, Kwara, Kebbi, Kano, Zamfara and the Imo West/Okorocha dispute) testing: (i) whether specific party registers were validly submitted within 21 days; (ii) whether particular consensus processes complied with s.84(9); and (iii) whether defector-consensus candidates can be lawfully fielded. Candidate selection, rather than the general election, is likely to remain “the real adjudicative battleground” of the 2027 cycle
7. CONCLUSION
Supreme Court’s decision in INEC v. Zenith Labour Party authoritatively settles that Sections 77(5)-(7) and 84(2) of the Electoral Act 2026 are constitutional and validly regulate the process by which political parties nominate candidates.
It does not, on the reporting available, authoritatively resolve whether a defeated primary aspirant who defects can be validly nominated by a new party through consensus without appearing on that party’s submitted register, that remains an open question of statutory construction pending further litigation. Counsel advising political parties or aspirants ahead of 2027 should treat the register/21-day rule as now firmly settled law, while treating the defection-via-consensus question, and any related substitution challenge, as unresolved and fact-sensitive.
Author:
Menseh Madaki, Esq. LL.M, MIPMA, MCIArb (UK), PhD in view