My interest in this subject has grown steadily as a result of recent developments in Nigeria’s political horizon. As 2027 approaches, the emergence of nominees for elective offices has become a matter of utmost importance to every discerning political observer, especially in light of the new Electoral Act 2026. By all constitutional and electoral standards, internal party democracy remains the foundation of representative governance. Political parties are the constitutional vehicles through which candidates emerge, leaders are chosen, and democratic power is contested.
It is for this reason that the Electoral Act 2026, like its predecessor, imposes mandatory obligations on political parties to notify the Independent National Electoral Commission (INEC) of their congresses, conventions, conferences, and primary elections, while empowering INEC to attend and observe such activities.
A recurring legal question, however, is this: What happens where a political party gives proper notice to INEC, but INEC chooses not to attend? Can the absence of INEC invalidate the congress, convention, or primary election of that party?
My research into the subject from both statute and case law yields a clear answer: unless there is a subsisting court order restraining the exercise, or there is failure to comply with the mandatory statutory notice requirements, the exercise does not suffer any legal impairment merely because INEC was absent.
The relevant provision is Section 82 of the Electoral Act 2026 (which substantially mirrors Section 82 of the Electoral Act 2022). It provides that every registered political party shall give INEC at least 21 days’ notice of any convention, congress, conference, or meeting convened for the purpose of electing members of its executive committees or governing bodies, nominating candidates for elective offices or approving a merger.
The section further states that INEC shall, with or without prior notice, attend and observe such meetings.
The use of the word shall is legally significant. It denotes compulsion. Thus, the duty to issue the statutory 21-day notice is mandatory on political parties, while the duty to attend and observe is imposed on INEC.
Most importantly, subsection (6) provides that failure by a political party to notify INEC as required renders the congress, convention, conference, or meeting invalid. Therefore, the sanction created by the Act attaches to the failure of the political party to notify INEC, not to INEC’s refusal, neglect, or inability to attend.
What then is the legal implication where INEC is unable or unwilling to attend a party’s congress or convention despite receiving valid notice?
Nigerian courts have consistently distinguished between failure of a political party to notify INEC and
failure of INEC to honour a valid invitation.
Emphatically, only the first situation can invalidate the exercise.
This principle was illustrated in the senatorial primary dispute that culminated in Akpabio v. Ekpoudom arising from the All Progressives Congress (APC) primaries in Akwa Ibom State. One of the complaints was that INEC did not attend the exercise. The courts focused not merely on physical attendance, but on whether the party complied with the law and whether a valid primary was conducted in accordance with party rules and the Electoral Act.
There was evidence that notice had been given to INEC, but the Commission chose not to attend, having earlier monitored a different exercise which was later said to have been conducted contrary to party guidelines.
The broader implication of that decision is that INEC’s non-attendance, standing alone, does not automatically nullify a properly convened primary where statutory notice was duly given.
Secondly, even where INEC attends a congress or convention, such attendance does not validate a process conducted in breach of the party’s constitution, the Electoral Act, or applicable guidelines.
INEC cannot frustrate a party’s internal democratic process simply by staying away after due notification.
This position accords with common sense and constitutionalism. If INEC could invalidate party processes merely by refusing to appear, the Commission would effectively become the determinant of internal party leadership. That cannot be the intention of the framers of either the Constitution or the Electoral Act.
The truth is that INEC is a regulator and observer and not the creator of party mandates.
The above principle must, however, be distinguished from the recent controversy surrounding the Peoples Democratic Party (PDP) convention reportedly held in Oyo State under the political influence of Seyi Makinde.
There, the issue was not simply that INEC was absent. Rather, reports suggested that there existed an express court order restraining INEC from attending or monitoring the convention, yet the convention proceeded in the face of pending judicial directives.
That scenario is legally distinguishable.
Once a court of competent jurisdiction issues an order, parties and institutions are bound to obey it until it is set aside. Any political exercise conducted in defiance of a subsisting court order is exposed to nullification, not because INEC was absent, but because the rule of law was violated.
The invalidity in such circumstances flows from disobedience to court order, not from mere non-observation by INEC.
I must re-empasize that INEC’s absence alone will not invalidate a congress or convention where the party gave the statutory 21 days’ notice; there is evidence the notice was received; the exercise was conducted democratically; party constitution and guidelines were followed, and there was no restraining court order.
However, the process may be legally vulnerable where no notice was given to INEC; notice was defective or late; the exercise violated party rules; fraud or exclusion of delegates occurred or a subsisting court order was disobeyed.
Thus, the decisive legal issue is compliance with the law, not the mere presence of INEC officials.
It is important to acknowledge the critical role of INEC in Nigeria’s growing electoral process. However, allowing INEC’s voluntary absence after valid notice has been given to it to destroy party processes would create grave constitutional dangers.
Infact, it would hand to an administrative body veto power over party democracy. It will encourage selective attendance and invite political manipulation. Finally, it will destabilise candidate nomination processes nationwide and undermine the freedom of association guaranteed under the Constitution.
My considered view is that under the Electoral Act of 2026, the obligation on political parties is to notify INEC, while INEC is expected to attend and observe. Once the party has discharged its statutory duty, INEC’s refusal, neglect, or inability to attend does not, without more, nullify the exercise.
The law does not punish a political party for INEC’s absence where the party itself has complied with the Electoral Act. Rather, it punishes failure to notify, procedural illegality, and contempt of court.
Therefore, in the absence of an express restraining order or failure to issue the required notice, INEC’s non-observance cannot by itself affect the validity or outcome of a party congress, convention, or primary election.
That is the balance the law strikes between regulation and democratic autonomy, and it is the interpretation that best serves Nigeria’s constitutional future.
M. O. Ubani, SAN(MOU).
Constitutional and Policy Analyst
