Understanding Electoral Law Reform Beyond the Headlines

Part II: Legislative History of the Electoral Act 2026

The widespread protests from the 2023 general election stemmed the need for enacting a new electoral act to cure the timing, technology, and credibility defects exposed by the previous general elections — especially delayed petitions, BVAS ambiguity, and weak penalties for electoral offences. The following key highlights underpin the need for the new extant law.

Post-Election Litigation Crisis: It was obvious that courts and election tribunals were still deciding petitions months after inauguration. Peter Obi & Anor v INEC & Ors (2023) LPELR-61019(SC) stands as a typical example, exposing gaps in timelines which this new extant law tends to curb. See also Atiku Abubakar v INEC (2023) 19 NWLR (pt. 1917) 1, where the Supreme Court frowned over election litigation stretching on after inauguration.

Absence of Statutory Backing for Electoral Technology: The Electoral Act 2022 failed to provide statutory backing for the use of electoral technological devices. This was seen in the Apex Court's decision in Oyetola & Ors v Senator Nurudeen Ademola Adeleke & Ors (2023) 11 NWLR (pt. 1894) 125 (SC), where the court held that manual collation was still lawful and the primary source for verification of election results. This judgement sprang up so many political protests which became a major factor for the enactment of the new extant law.

Inadequate Sanctions and Obsolete Electoral Regulations: Outdated penalties for electoral offences and campaign finance rules under the 2022 Act became unrealistic, making a new Act otherwise irresistible.

Part III: Substantive Key Reforms Stemming from the New Electoral Act, 2026

One of the most significant reforms is the amendment to the statutory timeline for general elections. Under Section 28(1) of the Electoral Act, INEC is now required to issue notice of an election within a shorter timeframe before the appointed date, reducing the 360-day period provided under the repealed Act. The amendment appears aimed at reducing the length of the formal electioneering cycle. By shortening the notice period, lawmakers likely sought to limit the prolonged period of political uncertainty and tension that comes with a 360-day window, thereby allowing governance to proceed with fewer distractions. A shorter timeline also reduces the financial burden on both INEC and political parties by cutting down on extended campaign logistics, security, and administrative costs. Additionally, it curtails the opportunity of campaigning before the official election period begins, often using the advantage of being in office. Ultimately, the change reflects a legislative preference for electoral efficiency and stability over an extended pre-election period.

Section 60(3) provides for the electronic transmission of results. By the enactment of the new Act, technological electoral devices now enjoy statutory flavour, unlike in the previous Electoral Act of 2022 and as held in the Supreme Court case of Oyetola & Ors v Senator Nurudeen Ademola Adeleke & Ors (2023) supra.

Critics such as Honourable Henry Seriake Dickson, the National Leader of the Nigeria Democratic Congress and Senatorial Representative of Bayelsa West Senatorial District, and some other legal analysts have shown discontent with the new enactment as it still gives avenue for manual collation of results upon the failure of communication while transmitting election results from Form EC8A to IReV. What communication failure means was not defined by the Act. This creates a loophole which does not settle the contention that led to the enactment of this new Act.

Grounds of petition in electoral matters, by provision of Section 138 of the Electoral Act, are restricted to only two grounds. Section 138(3) discourages the institution of suits on grounds other than the ones provided in Section 138(1). Critics have argued that the provisions of Section 138(3) violate lawyers' right to institute actions, as it provides sanctions upon the lawyer as well as the petitioner who institutes a petition on grounds other than the ones provided in Section 138(1).

Amendment of certain penalties for electoral offences is one of the recommendable significant reforms of the new Electoral Act 2026. Section 22(c) of the Electoral Act 2026 provides an increment for the offence of vote buying: upon conviction, such person will be liable to a fine of not less than ₦5,000,000 or imprisonment to a term of not less than two years or both, and such person shall not be eligible to stand for election in Nigeria for a period of at least 10 years — unlike the Electoral Act of 2022 which provided a sanction of up to ₦500,000 only or imprisonment to a term of not less than two years or both. Some other penalties were also amended. It is submitted that these provisions, though laudable, are undermined by the incompetence of security personnel deployed to ensure credible, free and fair elections — often times the security personnel are complicit in the crimes. Furthermore, prosecution of offenders is usually truncated by the instigators who enjoy political privilege.

By provision of Section 84(2) of the new Electoral Act, unlike in the repealed Act, political primaries are only to be conducted by consensus or direct voting, as delegate voting is now abolished. This enactment, unlike the previous Electoral Act of 2022, recognises only one method of voting in a party's primary election: voting directly by all registered members of the party. This significant provision tends to curb the high tendency — which became customary to most Nigerian political parties — of members involving themselves in massive lobbying of delegates in order to secure votes during party primaries. However, it is sad to note that by provision of Section 83(5), courts are stopped from entertaining internal political matters. This is a major stumbling block in situations where there are allegations of vote buying during primary elections.

Part IV: Implications for Election Integrity

It is worthy to note that the Electoral Act 2026 strengthens Nigeria's democratic process by entrenching technology and accountability, with Section 47(2) mandating BVAS for accreditation and electronic transmission of results, thereby curbing over-voting and manipulation that marred the 2023 elections. Section 22(c) imposes stiffer penalties for vote buying and violence, creating deterrence.

By codifying INEC's power to review declarations made under duress in Section 65, the Act tends to protect the integrity of the electoral process by allowing the Commission to correct results that were obtained through intimidation or contrary to the law. This safeguards the will of both voters and electoral officials, ensuring that outcomes reflect the actual votes rather than coercion. The provisions of Section 65 also tend to reduce post-election violence and litigation by giving INEC a timely administrative remedy to address glaring irregularities within 7 days, before disputes escalate to tribunals. In doing so, it strengthens public confidence in elections, as stakeholders know there is a mechanism to reverse declarations that were clearly made under duress.

Practically, a comparative study of the recent Area Council election held in Abuja, FCT shows BVAS use proved to be a "game changer", accrediting voters in 5 seconds or less and automatically blocking repeated accreditation — eliminating double voting and ensuring only duly accredited voters could cast ballots. Observer groups and INEC Chairman Prof. Joash Amupitan SAN, vide Vanguard, commended the upgraded devices for functioning "effectively and efficiently" across 2,822 polling units, boosting electoral integrity and public confidence ahead of the 2027 election.

Despite the positive impact the new Act is expected to have in fostering credible elections in Nigeria, it still contains legislative shortcomings and oversights that continue to generate controversy.

Section 138(3) of the Electoral Act 2026 mandates that if a court finds an election petition was filed on grounds outside the only two permitted grounds in Section 138(1), it must impose fines of not less than ₦5,000,000.00 (Five Million Naira) on counsel and ₦10,000,000.00 (Ten Million Naira) on the petitioner. The negative impact is that this heavy sanction regime narrows access to the tribunal by deterring lawyers and petitioners from testing novel or good-faith qualification issues like certificate forgery, which are now excluded from Section 138(1) grounds — creating an "accountability gap" where disqualified candidates can still contest while challenges remain unresolved.

Also, by provisions of Section 60(3) of the Electoral Act 2026, which mandates electronic transmission of polling unit results to IReV, its proviso allowing manual Form EC8A to remain the primary source if "communication failure" occurs creates a loophole with no definition or verification mechanism for such failure. The negative impact this has is that presiding officers can claim network failure without documentation, reverting to manual collation that is prone to interference and disputes, while the absence of a real-time transmission deadline turns electronic upload into post-hoc documentation instead of a live accountability tool.

By provision of Section 63(2) of the Electoral Act, a presiding or returning officer may count a ballot paper without INEC's official mark if he is satisfied it came from the correct ballot booklet used in that polling unit. The negative impact is that this subjective discretion creates a loophole for ballot stuffing and manipulation, because politicians with access to booklet serial numbers can print unofficial ballots and have them counted, undermining the security and sanctity of the vote.

Furthermore, the Electoral Act 2026 still does not provide a clear legal framework for full electronic voting or Diaspora voting, leaving over 17 million Nigerians living outside Nigeria disenfranchised and forcing INEC to rely on physical polling only. This omission undermines suffrage inclusivity as provided under Section 77(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), while creating logistical gaps that could be exploited through claims of "lack of capacity" to avoid implementing diaspora participation before the 2027 elections.

The Electoral Act 2026 fails, notwithstanding, to address the long-standing issue which borders on the independence of INEC. INEC's dependency on the President for funding releases, appointment of the Commission's chairman, resident electoral commissioners, and operational security undermines its constitutional independence, creating room for executive interference and perception of bias in electoral management. This erodes public confidence in the Commission's impartiality and compromises the credibility of election outcomes, as decisions may be viewed as influenced by presidential interest rather than law.

An undeniable shortcoming of the Electoral Act 2026 is the restriction of election petitions to two grounds only, by provision of Section 138(1) — corrupt practices and non-compliance with the Act, or that the respondent was not duly elected by majority of lawful votes — removing qualification issues like certificate forgery from tribunal jurisdiction. The negative impact is that it creates an accountability gap where candidates with forged credentials can still contest and be sworn in, since such challenges are pushed to pre-election suits that often outlast the electoral cycle. This narrows access to post-election justice, weakens deterrence against fraud, and forces voters to accept potentially ineligible winners while litigation on qualifications remains pending and unenforceable.

Conclusion

The Electoral Act 2026 represents a deliberate legislative response to the operational and jurisprudential gaps of the repealed Electoral Act 2022. While reforms to election timelines under Section 28, statutory backing for BVAS in Section 47(2), and so on, mark genuine progress, critical vulnerabilities remain. The discretionary framing of Section 60(3) on e-transmission and the restrictive grounds for petitions under Section 138(1) risk undermining the very integrity the Act seeks to protect.

On balance, the Electoral Act 2026 advances Nigeria's electoral governance by codifying technology and compressing pre-election timelines, potentially ending the "inauguration before judgement" era. However, by failing to mandate real-time transmission and address diaspora voting, it leaves the electoral process susceptible to the same executive and administrative manipulations that marred 2023. The law gives with one hand and takes with the other.

For the Act to achieve its policy intent ahead of the 2027 elections, urgent amendments become necessitated. Failure of transmission as provided in Section 60 ought to be expressly defined, or the collation of results via IReV ought to be mandated without any room for exceptions. Section 138 ought to be amended to restore qualification disputes as grounds for electoral petition. Finally, an Electoral Offences Commission has to be established in order to drastically curb electoral offences and ensure certainty of punishment.

It is submitted that, in the light of the foregoing, the Electoral Act 2026 remains a progressive framework with compromised execution. The law is only as strong as the political will to insulate it from abuse. Nigeria's democratic credibility in 2027 will depend not on what the Act says, but on how faithfully INEC and the courts enforce its spirit.