By
Professor Emmanuel Onwioduokit
The 2026 Electoral Act has opened one of the gravest constitutional controversies in Nigeria’s democratic history. What should have been a statute to strengthen electoral integrity now appears, on its face, to have narrowed the legal grounds upon which fraudulent and constitutionally disqualified candidates may be challenged after elections. At the centre of the storm is the deliberate omission of qualification-related grounds, particularly certificate forgery and age falsification, from election petitions.
The question is no longer merely legal. It is profoundly moral and constitutional: can the National Assembly, by ordinary legislation, shield conduct which the Constitution itself expressly condemns?
The answer, in law, is no.
The controversy begins with Section 138 of the Electoral Act 2026, which now provides in full:
“138. (1) An election may be questioned on the grounds that the —
(a) election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; or
(b) respondent was not duly elected by majority of lawful votes cast at the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.
(3) Where the court makes a determination that an election is being questioned by a political party or candidate on grounds outside of those provided for under subsection (1), the court shall impose penalties of not less than ₦5,000,000 on the counsel and not less than ₦10,000,000 on the petitioner.”
This section is extraordinary not merely for what it says, but for what it pointedly omits.
Under the previous legal framework, qualification issues formed an explicit basis for election petitions. The omission now means that certificate forgery, false declaration of age, forged affidavits, falsified academic records, and other qualification defects are no longer expressly maintainable before an election tribunal as post-election grounds.
This is the legislative decision that has provoked widespread outrage and, quite frankly, warrants a severe indictment of the National Assembly.
Yet, the more serious legal issue lies beyond the Electoral Act. It lies in the Constitution of the Federal Republic of Nigeria 1999 (as amended), which remains the supreme law of the land.
For presidential elections, Section 137(1)(j) provides in full:
“A person shall not be qualified for election to the office of President if —
he has presented a forged certificate to the Independent National Electoral Commission.”
For governorship elections, Section 182(1)(j) states:
“No person shall be qualified for election to the office of Governor of a State if —
he has presented a forged certificate to the Independent National Electoral Commission.”
For National Assembly elections, Section 66(1)(i) provides:
“No person shall be qualified for election to the Senate or the House of Representatives if —
he has presented a forged certificate to the Independent National Electoral Commission.”
For State Houses of Assembly, Section 107(1)(i) states:
“No person shall be qualified for election to a House of Assembly if —
he has presented a forged certificate to the Independent National Electoral Commission.”
These constitutional provisions are direct, unambiguous and mandatory. They do not leave room for legislative dilution.
In plain constitutional language, a forged certificate automatically disqualifies a candidate from office.
This is where the National Assembly’s action becomes deeply troubling.
By removing qualification issues from tribunal grounds, the legislature has created the dangerous impression that once votes are counted, a candidate’s forged credentials may become immune from post-election judicial scrutiny. That is a perilous assault on constitutional supremacy.
The Constitution itself settles this conflict.
Section 1(1) provides:
“This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
More importantly, Section 1(3) states in full:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
These words are not decorative. They are the very backbone of constitutional democracy.
What this means in legal terms is that the Electoral Act cannot validate what the Constitution invalidates.
No Act of the National Assembly can, by omission or technical drafting, legalise certificate forgery, false age declaration, or constitutional disqualification.
The National Assembly may regulate procedure. It may determine the jurisdiction of tribunals. But it cannot, by ordinary statute, erase constitutional disqualifications.
That would amount to an indirect amendment of the Constitution without following the stringent amendment procedure prescribed under Section 9 of the Constitution.
This is why the 2026 Act sits uneasily, indeed, unlawfully, beside the Constitution.
The implication is profound.
A candidate who presents forged credentials remains constitutionally disqualified, notwithstanding the Electoral Act. The likely effect is that such matters may now shift from post-election tribunal petitions to pre-election suits or constitutional actions before the Federal High Court and appellate courts.
But this procedural migration does not cure the constitutional defect.
If anything, it creates legal uncertainty, increases litigation complexity, and appears designed to discourage scrutiny by imposing severe financial penalties on petitioners and counsel who venture outside the narrow grounds in Section 138(1).
That is why this legislative move deserves strong criticism.
It sends a dangerous message that electoral legitimacy is now reduced solely to vote arithmetic while ignoring the legal and moral qualification of the candidate.
Democracy is not merely about counting votes; it is also about ensuring that those votes are cast for persons lawfully qualified to hold office.
A forged mandate cannot become legitimate merely because it secured numerical majority.
The National Assembly ought to be reminded that its duty is to fortify constitutional democracy, not to construct statutory shelters for impunity.
History will judge this amendment harshly unless urgently revisited.
A parliament that weakens the constitutional safeguards against fraud risks legislating not reform, but institutionalised electoral impunity.
It was the great Zik of Africa who in the face of a legal debacle arising from the 1983 presidential Election: ” Alhaji Shehu Shagari today, A or B tomorrow”
