Supreme Court Did Not Give INEC Automatic Power to Disqualify Candidates Over Section 77 — Ubani, SAN
Dr. M. O. Ubani, SAN, has said the certified true copy of the Supreme Court judgment in INEC v. Zenith Labour Party & Others does not authorise the automatic disqualification of candidates over alleged breaches of sections 77(5) to (7) of the Electoral Act 2026.
Ubani, who had expressed the same position two days earlier before obtaining the certified judgment, said he was prompted to clarify the issue after what he described as misleading interpretations of the Supreme Court’s decision began circulating publicly.
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He said the certified copy had now “substantially strengthened and affirmed” the position he earlier took.
According to him, the Supreme Court’s reasoning draws a clear distinction between the personal qualification or disqualification of an individual candidate and the statutory eligibility of a political party to field candidates.
Ubani explained that where a candidate’s name is absent from a party’s membership register, the consequence concerns the regularity of the nomination or primary process and does not, by itself, amount to the candidate’s personal disqualification under the Electoral Act.
He similarly argued that a political party’s failure to submit its membership register within the period prescribed by section 77(7) affects the party’s statutory eligibility to field candidates and does not automatically translate into the personal disqualification of every candidate it sponsors.
He said sections 77(5) and (6) regulate participation in party primaries by reference to the membership register submitted to the Independent National Electoral Commission (INEC).
Where a candidate participates in a primary despite an alleged breach of those provisions, he said, the relevant question is whether the party complied with the statutory requirements governing its primary and whether the candidate validly emerged from the process.
“This is a question concerning the validity of the nomination process,” Ubani said, stressing that it should not be confused with whether the candidate personally satisfies the constitutional or statutory qualifications required to contest an election.
On available legal remedies, he pointed to section 88(2) of the Electoral Act, which provides a judicial avenue for challenging non-compliance with the Act or applicable party rules in the conduct of a primary.
He said the ability to bring such an action would depend on the facts of each case, including the identity and locus standi of the claimant, the nature of the complaint, the reliefs sought, when the cause of action arose and applicable limitation or procedural requirements.
Ubani therefore cautioned against interpreting every breach of section 77 as giving INEC an automatic administrative power to disqualify a candidate.
He said the absence of a candidate’s name from a party membership register does not, by itself, confer on INEC a new power to summarily disqualify that candidate.
Likewise, he said a party’s failure to submit its register within the prescribed period does not give INEC an unfettered power to determine administratively and conclusively the fate of every candidate sponsored by the party.
Turning to section 29, which requires political parties to submit to INEC the names of candidates who emerged from validly conducted primaries, Ubani acknowledged that the provision imposes obligations on political parties.
However, he argued that it should not be interpreted as granting INEC general judicial jurisdiction to conclusively determine every disputed question concerning the validity of a party primary.
According to him, where the validity of a primary is challenged over alleged non-compliance with section 77, the dispute should be determined through the appropriate judicial process.
“INEC’s administrative role cannot be equated with the judicial power to finally determine disputed questions of law and fact concerning the validity of a nomination,” he said.
Ubani said he had consistently rejected what he described as the simplistic interpretation that the Supreme Court judgment means a candidate whose name is not on a party’s register is automatically disqualified.
“That is not the ratio of the judgment,” he said, adding that the judgment also does not mean every failure to submit a register automatically renders all candidates personally disqualified.
He identified several factors that could become relevant in determining a particular case, including who instituted the action, whether the claimant has locus standi, the nature of the complaint, when the cause of action accrued, the reliefs sought, applicable limitation periods, the nature of the alleged non-compliance, whether and when a register was submitted, whether the candidate’s name appeared on it, the nature of the party primary and the remedy provided by law.
“These questions cannot be answered by simply declaring that section 77 has been breached and that the candidate is consequently disqualified,” he said.
Ubani maintained that the Supreme Court’s decision in INEC v. Zenith Labour Party & Others should not be presented as having created a new regime of automatic candidate disqualification.
He said the judgment recognises the statutory consequences of non-compliance with section 77 but distinguishes between irregularities affecting the nomination or conduct of a party primary, the statutory eligibility of a political party to field a candidate, and the personal qualification or disqualification of an individual candidate.
“These are not the same legal questions and should not be conflated,” he said.
According to him, where a legally competent claimant challenges a candidate’s emergence over alleged non-compliance with section 77, the judicial process under section 88(2), subject to applicable legal requirements, remains available.
He said a court could then determine the legal consequences of any proven non-compliance.
“What the Supreme Court did not do was to confer upon INEC an automatic judicial power to disqualify a candidate merely because INEC considers that section 77(5), (6) or (7) has not been complied with,” Ubani said.
He concluded that the ultimate determination of a disputed nomination, where properly brought before the court, remains a matter for the judiciary and that this distinction is fundamental to understanding the Supreme Court’s judgment.
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