SANs, ex-RECs divided over post-primary defections

Senior Advocates of Nigeria and former Resident Electoral Commissioners of the Independent National Electoral Commission have expressed divergent opinions over whether aspirants who lost party primaries can defect to another political party and still contest elections under the Electoral Act 2026.

The differing opinions followed recent judgments of the Federal High Court on the interpretation of provisions relating to party membership registers, timelines for submission to the INEC and the legality of aspirants moving between political parties after participating in party primaries.

As political parties conclude their primaries based on INEC guidelines, some of the aggrieved members have dumped their parties and joined another.

A former member of the House of Representatives and two-term senator for Abia Central senatorial zone, Nkechi Nwaogu, dumped the ruling All Progressives Congress following the outcome of the APC primaries, where her closest rival, Emeka Atuma, was declared the winner.

In a telephone interview on Thursday, she confirmed that she had left the APC for the Nigeria Democratic Congress.

“I can confirm that I have left the party,” she said, stating that the decision was a result of personal decision and injustices in the party.

Also, former Deputy President of the Senate, Ovie Omo-Agege, dumped the APC for NDC, to give vent to his desire to return to the Senate.

Another case is Isa Pantami, who had been declared Peoples Democratic Party governorship candidate for the 2027 election in Gombe State after he withdrew from the APC governorship primaries in the state.

While some of the legal experts and former electoral officials argued that the current Electoral Act effectively bars aspirants from switching political parties after participating in primaries, others maintained that a recent judgment of the Federal High Court created a window for such movement before the submission of party membership registers to INEC.

In the first judgment delivered by Justice Mohammed Umar in Suit No: FHC/ABJ/CS/517/2026, filed by the Youth Party against INEC, the court nullified part of the guidelines issued by the commission directing political parties to submit their membership registers and databases by May 10 as a condition for participation in the 2027 general elections.

The court held that INEC could not lawfully shorten the timeline already provided under Section 29(1) of the Electoral Act 2026 for the submission of party membership records and candidates’ particulars.

However, in a separate judgment delivered in Suit No: FHC/ABJ/CS/720/2026 filed by the Social Democratic Party against INEC, Justice James Omotosho affirmed the powers of INEC to issue and alter election timetables and schedules of activities for elections.

Justice Omotosho held that while the electoral body possesses such powers, it must exercise them strictly within the timelines prescribed by the Electoral Act 2026.

Speaking to The PUNCH, a Senior Advocate of Nigeria, Adedayo Adedeji, said the Electoral Act itself does not permit aspirants to move to another political party after contesting primaries.

According to him, “Based on the Electoral Act 2026, politicians cannot defect to another political party and contest again under another platform.

“I’m aware of the fact that there’s a judgment of the Federal High Court which held that the particular provision is unconstitutional and that the time to submit the register extends further. So, some aspirants are considering having to move from one political party to another.

“I’m also aware that there’s another judgment of the Federal High Court by my Lord Justice Omotosho, having a contrary view on that particular position.

“So now, it depends on each aspirant. That judgment of Omotosho is still valid until set aside by a judgment of a higher court.

“These are two courts of coordinate jurisdiction, which you cannot say Justice Omotosho’s judgment is binding or overrules the judgment of Justice Umar,” Adedeji said.

He, however, noted that the Court of Appeal would settle which of the judgments to go with.

“It is only the Court of Appeal, being a higher court, that can rule on that. So, my own view is that, as far as the Electoral Act is concerned, you cannot do that,” he said.

Adedeji, however, noted that the judgment by Justice Umar appeared to create a temporary opening for aspirants willing to take the legal risk of defecting to another political party before the submission of registers.

“If you go by that judgment, it has given a leeway for aspirants to actually take advantage of that window. But in taking advantage of that window, they have to be able to sink and swim with their decision.

“If, at the end of the day, the Court of Appeal, in its wisdom, rules otherwise and says that the decision is faulty, they have to stick with it.

“It means that if the Appeal Court rules otherwise, there’s no foundation for them to stand, and if, for any reason, the Court of Appeal, in its wisdom, says, yes, I’m upholding that judgment, it means that whatever decision they are taking is on a solid footing,” he added.

The SAN added that aspirants relying on the judgment may not necessarily be violating the Electoral Act if the membership register of their new party had not yet been submitted to INEC.

“So it means that, according to the first court judgment, they might not be violating the Electoral Act if an aspirant moves from one political party to another to conduct primaries, provided the register has not been submitted,” he added.

Adedeji, however, admitted that he had not read the full judgment and was relying on available analyses.

“I also must note this, I’ve not read the judgment in full. Let me also put that caveat, but I’m giving this opinion based on what I saw and based on some of the analysis I’ve read.

“So, going by the Electoral Act, you cannot defect and participate in another primary election,” he said.

The senior lawyer further argued that the court judgment appears to concern INEC’s guidelines rather than the provisions of the Electoral Act itself.

He also warned aspirants against taking irreversible political decisions based solely on judgments delivered by courts of first instance.

“Additionally, notwithstanding that we have judgments of courts. These are still courts of first instance. If the appellate court decides one way or the other, or the Supreme Court, whoever jumps ship because of Justice Umar’s judgment or Justice Omotosho’s judgment must be ready to swim or sink with his decision if, for any reason, the judgment is upheld or overturned.

“If the judgment is against the candidate, it means that the person automatically loses his seat. It also means that the political party, too, is going to be without a candidate, assuming they even won in the election,” he added.

Another SAN, Ifedayo Adedipe, maintained that the Electoral Act appears to prohibit aspirants from moving to another political party after losing primaries.

“According to the new Electoral Act, it is not permissible. I think they have tweaked the current Electoral Act to ensure that if you lose in your party, you remain there.

“If you ask me, I do not think that is a very creative thing to do, because a political party might choose to be occult in its operation. I mean, they behave like a cult, they already know who they want and who they do not want, and they allow you in, and then they don’t allow you to go out.

“If you close the door against them, you deny the country the right to make an informed selection. I do not think that thing is right, but the current Electoral Act seems to have forbidden the ability to move to another political party after primaries,” he said.

Kunle Adegoke (SAN) said the Electoral Act may have inadvertently left a loophole that could allow aspirants who were not nominated by their original political parties to seek tickets elsewhere.

“There is a window created by the 2026 Electoral Act; it might be an omission, but there is nothing preventing an aspirant who was not nominated on the platform of his original party from reaching out to another political party, so long as he is within the period allowed by the Electoral Act to vie for an office in that other political party.

“The only thing is that if he is nominated by the APC, he cannot abandon that nomination to pick a ticket in his new party, because the Electoral Act forbids double nominations,” he said.

Former Zamfara State REC, Asmau Maikudi, said the judgment in Youth Party versus INEC appears to support aspirants moving to another political party before the deadline for submission of membership registers.

According to her, “Based on the above judgment, yes. By the way, how many parties have submitted their membership registers to INEC as of today?”

Similarly, another former REC, Mike Igini, stated that aspirants who lost their party primaries could still switch political parties and contest based on the same judgment.

“Yes. They can, given the judgment,” he said.

Former Katsina State REC, Jibrin Zarewa, however, stressed that the Constitution and the Electoral Act prohibit dual party membership and impose penalties on violators.

According to him, “The Electoral Act outlaws membership of two political parties. You cannot be a member of two political parties because the Constitution only permits one.

“It says you have to be a member of the political parties sponsoring you. The president, the vice president, the senators, members of the House of Representatives, the state assembly, the governor, the deputy governor, and the chairman.

“So, if you are a member, and you have not resigned, and you are not properly a member of the other party, then it means you cannot contest.

“If you are a member of a political party and have not resigned to properly join the other party, then you are a member of two political parties.

“But if you have resigned from that party properly and you have joined the other party properly before the time when the membership should be submitted to INEC, then you will be a bona fide member of the new party, and that will depend on the political party.”

Zarewa explained that some political parties grant waivers to new entrants to enable them to contest elections immediately after joining the party.

“Some of them have waivers, some of them don’t have waivers. Some of them have, in their constitution, a provision, or some provisions that, if you join the other party, you have some timeline to be a member of that party to be eligible to contest elections.

“So, if they give you a waiver, you are properly registered, then you can contest.

“Some of them have clauses that if you join, you have to spend six months before eligibility to participate in the election. If they give you that waiver, then you are eligible to stand in the election,” he said.

He maintained that failure to properly resign from a former party before joining another would amount to dual membership and could lead to disqualification.

“But if you are a member of the political party and you did not properly resign within the time stipulated by the Electoral Act and join the other party, then you are a member of two political parties, which means you are disqualified.

“So, the provision is you cannot be a member of two political parties.”

The former REC further explained that political parties are required to submit membership registers to INEC and that aspirants must ensure their names appear in the register of their new parties before the stipulated timeline.

“So, within the time of the election, and within the time of submission to INEC, the Electoral Act provides that political parties should submit their membership registers to INEC.

“If you are outside at the time it is given to INEC, it means you are not a member. If your name is not in the register within that time.

“These are the provisions. You have to properly resign from the political party and properly join the other party to be eligible to stand for election.

“The Electoral Act says you cannot be a member of two political parties. It’s a criminality, and because it’s a criminality, you have to be penalised if you are a member of two political parties,” he said.

Speaking on the conflicting judgments, he said INEC was currently facing a difficult legal situation pending the determination of the appellate court.

“You remember some people have gone to court about the term of service of a registrar? And with that, now INEC is caught in a quagmire. We have two conflicting judgments from the courts – From the courts of concurrent jurisdiction. We call them concurrent jurisdiction because they have the same powers.

“One is that a portion of the guidelines has revoked the enforcement of the guidelines. Another court is saying that INEC is right, and in that circumstance, you must have heard that INEC has initiated the appeal process.

“Which means now, INEC may continue with its own position, pending when an appellate court decides which of the courts is right.

“So now, INEC may continue along where it started until the appeal court says it’s wrong and when the appeal court says that, there’s a problem,” he said.

He added that the Electoral Act was designed to prevent “forum shopping,” where litigants seek favourable judgments from different courts.

“There’s something referred to as forum shopping, where when people have disagreements, they go in search of courts where they will get a favourable judgment. What the Electoral Act attempted to do was to stop this.

“In forum shopping, courts give divergent rulings on the same matter. So INEC has appealed the first one, and now it has got another judgment at once from the other side. So now, it may cling to the first one, or to the second one until the appeal court says this is right,” he added.

Returning to the core issue, Zarewa reiterated that aspirants must belong to only one political party to remain qualified for elections.

“So let’s go back to the issue of fielding candidates. You have to be a member of one party, and if you are going to another party, you have to properly resign within the stated term, and then you have to properly join the other party.

“In that case, you are a member because membership of two political parties at the same time has been criminalised,” he said.

[Credit: The Punch]

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