…Says compliance with Electoral Act, not INEC’s presence, determines validity

By Henry Ojelu

As political activities gather momentum ahead of the 2027 general elections, a constitutional lawyer Dr Monday Ubani, SAN, has clarified that the absence of the Independent National Electoral Commission, INEC, at party congresses, conventions, or primaries does not automatically invalidate such exercises.

Ubani, who weighed in on growing concerns surrounding internal party processes under the Electoral Act 2026, said the determining factor for the validity of any political party exercise remains strict compliance with statutory provisions, not whether INEC officials were physically present.

According to him, the Electoral Act 2026 imposes a mandatory obligation on political parties to notify INEC at least 21 days before holding congresses, conventions, or primary elections.

However, he stressed that while the law compels parties to issue notice, it does not make INEC’s attendance a condition precedent for the validity of such exercises.

“The law is clear. Political parties must give the required notice, but INEC’s role is essentially that of an observer. Where a party has fulfilled its obligation by notifying the commission, the absence of INEC does not invalidate the process,” he said.

Citing Section 82 of the Electoral Act 2026, Ubani explained that the only instance where a party exercise would be rendered invalid on the basis of INEC’s involvement is where the party fails to give the statutory notice.

He noted that the provision clearly stipulates sanctions against political parties that do not comply with the notification requirement, adding that no such sanction exists for INEC where it fails to attend after being duly notified.

“The implication is straightforward: the law punishes the failure of a political party to notify INEC, not the commission’s failure or refusal to attend,” he added.

Ubani further pointed to judicial precedents, including disputes arising from party primaries, to support his position.

He explained that Nigerian courts have consistently distinguished between non-notification by political parties and non-attendance by INEC, maintaining that only the former can invalidate a congress or primary.

He referenced a senatorial primary dispute involving the All Progressives Congress, APC, in Akwa Ibom State, where the issue of INEC’s absence was raised.

According to him, the courts focused on whether due process was followed and whether the party complied with its guidelines and the Electoral Act, rather than on the physical presence of INEC officials.

“The courts have made it clear that compliance with the law and party rules is what determines validity, not mere attendance by INEC,” he said.

The senior advocate also cautioned that INEC’s presence at a political event does not automatically validate an otherwise flawed process.

He noted that any congress or primary conducted in breach of party constitutions, electoral guidelines, or statutory provisions remains liable to be set aside, regardless of whether INEC monitored it.

On the recent controversy surrounding a Peoples Democratic Party (PDP) convention reportedly held in Oyo State, Ubani distinguished the situation from cases of mere non-attendance by INEC.

He explained that where a court of competent jurisdiction issues an order restraining INEC or any party from participating in a political exercise, such an order must be obeyed.

“In such circumstances, the issue is not INEC’s absence but disobedience to a subsisting court order. Any action taken in defiance of a valid court directive is liable to be nullified,” he said.

Ubani warned that allowing INEC’s absence to invalidate party processes could create constitutional and democratic challenges, including granting the electoral body undue influence over internal party affairs.

“If INEC could determine the validity of party processes simply by refusing to attend, it would amount to giving the commission veto power over internal party democracy. That is not the intention of the law,” he stated.

He further argued that such a situation could open the door to manipulation, selective participation, and instability in the nomination of candidates across political parties.

Reaffirming his position, Ubani maintained that a party congress, convention, or primary election remains valid where the party complies with all legal requirements, including proper notification to INEC, adherence to its constitution and guidelines, and absence of any restraining court order.

However, he noted that such exercises could still be invalidated where there is failure to notify INEC, defective or late notice, violation of party rules, exclusion of delegates, or proven cases of fraud.

“The decisive issue is compliance with the law, not the presence or absence of INEC officials,” he emphasised.