Between section 77 of the Electoral Act and section 40 of the Constitution — by Simbo Olorunfemi

I have seen eyebrows raised here and there about Section 77 of the Electoral Act against the backdrop of Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

I was already at this when I got to know that the Nigeria Democratic Congress (NDC) has, in fact, approached the Court seeking an order to strike down Sections 138 and 77(5) of the Electoral Act, 2026.

The party argues that Section 77 (5) of the Electoral Act, 2026 is inconsistent with the provisions of Sections 40 and 65 (2) (b), 106 (1) (d), 231 (1) (c) and 177 (1) (c) of the 1999 Constitution, among others.

Its argument is that this section is inconsistent with the provisions of the 1999 Constitution, which did not provide for the duration for which a citizen must be a member of a political party to be eligible to contest for an election.

It says: “From experience, members who are dissatisfied by the conduct of primaries in their respective parties usually seek refuge in other parties to enable them to participate in the general elections.”

An interesting argument this is, even if I don’t get it.

But first, what does Section 40 of the Constitution of say?

“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”

Then, what does Section 77 of the Electoral Act 2026 say?

“77. (1) A political party registered under this Act shall be a body corporate with
perpetual succession and a common seal and may sue and be sued in its
corporate name.

(2) 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.

(3) Upon registration, a membership card shall be issued to the member.

(4) Each political party shall make such register available to the Commission not later than 21 days before the date fixed for the party primaries, congresses or conventions.

(5) Only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions.

(6) A political party shall not use any other register for party primaries, congresses and conventions except the register submitted to the Commission.

(7) A party that fails to submit the membership register within the stipulated time shall not be eligible to field a candidate for that election.”

Apparently, the understanding that those who are at war with Section 77 of the ECA have is that it is a deliberate barrier placed to stop people from defecting from one party to the other. Obviously, NDC, looking forward to receiving displaced or disgruntled politicians from other parties seeing that as an attempt to shut the door on them and disable them from being able to take on refugees.

But I don’t get it. Even before this round of litigation in the media, I had looked at the said Section 77 of the Electoral Act, and contrary to the widespread interpretation read into it, I did not and cannot see how or where it forecloses the opportunity for members of one party to cross from one party to the other. How does the fact that the membership register of a party had been submitted to INEC, as required in its Electoral Guidelines foreclose a member of a party crossing over?

The interpretation that has been forced on that Section as barring members of a party from defecting has never appealed to me as correct. To me, the recent judgement of the Federal Hight Court has reinforced that position,

What I think to be the case is that the party register to be used for the primary elections of a party has to have been submitted to INEC within a specified timeframe. That is to guarantee its sanctity for the purpose of the primary elections, not to exclude whoever else might want to leave or join the party before or after the primary elections.

To me, the essence of the requirement to submit the register before the primary elections is to prevent one who is not registered with a party from voting or being voted for in that party.
I wonder how a political party can be uncomfortable with such a provision!

Does the party want a situation where names can be smuggled into the register at the last minute, making it possible for tickets to be hijacked from original members?

Or is it the argument that a decampee should be allowed to fly the flag of his new party at anytime, even if the window for primary elections for the party has closed, or what really is their argument? Oh, I get it. The party doesn’t want a deadline for submission if reguster. It is waiting for the fallout from other party primaries to pick up strong men and inherit structure of criminality from those who might have fallen by the wayside in the big parties. We get it.

But the Electoral Act 2022 provided for the submission of register at least 30 days before primary elections, how has an amendment, which reduces the window to 21 days become a source of contention, that it is now being touted as unconstitutional and undemocratic?

Those conversant with the practice in corporate circles would know that there is a set time when the company register closes just before the Annual General Meeting is held. The Register has to close.

I don’t see how a temporary closure of register of a party just before election, just as companies do before the AGM can be logically construed as an infringement of the freedom of association in the contemplation of Section 40 of the Constitution.

I sincerely wonder what the fuss is all about. I wonder if those raising hell might have missed the proviso in the said section 40 of the constitution, which specifically makes allowance for INEC in its superintending role over the affairs of political parties in Nigeria?

Section 45(1) of the Constitution says:

“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society.’

Have they considered it?

This, to me, is another of the usual storm in the teacup situations generated out of nothing, with no logical or legal legs to stand on.

Another joke like the 25% in FCT requirement.

Much ado about nothing.