Can an aspirant decamp to another political party and become a candidate after losing a consensus process or primary in another party?
Can a politician who loses the nomination process in one political party defect to another political party and still validly emerge as its candidate for election?
At first glance, Section 77 of the Electoral Act 2026 appears to have answered this question in the negative. A closer examination, however, reveals something else entirely: the section may not have been drafted tightly enough to completely shut the door against post-primary decamping.
The controversy lies in the interpretation of Section 77, particularly subsections (5), (6), and (7).
Section 77 provides:
“(4) Each political party shall make such a register available to the Commission not later than 21 days before the date fixed for the party primaries, congresses or conventions.
(5) Only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions.
(6) A political party shall not use any other register for party primaries, congresses and conventions except the register submitted to the Commission.
(7) A party that fails to submit the membership register within the stipulated time shall not be eligible to field a candidate for that election.”
At face value, the legislative intention seems obvious. The lawmakers appear to have inserted these provisions to prevent a situation where an aspirant contests for the ticket of one political party, loses, and immediately defects to another political party to secure its ticket.
And honestly, from a policy perspective, that makes perfect sense.
The Electoral Act clearly insists that:
1. Political parties must submit their membership registers to INEC at least 21 days before their primaries;
2. Only persons whose names appear in those registers can vote or be voted for in party primaries; and
3. No register other than the one submitted to INEC can be used.
Therefore, if an aspirant participates in the APC primary election and loses, then defects to the PDP afterwards, logic suggests that his name cannot possibly be in the PDP register already submitted to INEC 21 days earlier.
Consequently, he should not be qualified to vote or be voted for in the PDP primary. Simple enough? I sincerely do not think it is that simple.
As I said earlier and respectfully so, the lawmakers did not draft Section 77 comprehensively enough to completely prohibit post-primary decamping.
The key lies in the exact words used in subsections (5) and (6).
Let us examine subsection (5) again:
“Only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries…”
Did you notice that?
The subsection specifically refers to party primaries. That distinction is critical. Under the new Electoral Act, specifically Section 84(2), there are two recognized methods by which a political party can produce its candidate:
1. Direct primaries, and
2. Consensus.
Now the issue is Section 77 repeatedly refers to party primaries. It mandates the use of the submitted membership register for primaries. It states that only persons whose names are contained in that register may vote or be voted for in primaries.
But what happens where the party adopts the consensus method? The law is conspicuously silent. It does not expressly state that the register submitted to INEC must also govern the consensus process. And courts do not possess the luxury of rewriting statutes.
One of the oldest principles of statutory interpretation is that: A court cannot read into a statute words which the legislature did not include.
If the National Assembly intended the restriction to apply to both primaries and consensus arrangements, it ought to have expressly said so. Instead, the repeated language of Section 77 is narrowly tied to party primaries. That omission may prove decisive.
Subsection (6) states:
“A political party shall not use any other register for party primaries…”
Again, the operative words are: “for party primaries.” Not consensus. Primaries. In fact, from the way the consensus process is explained in Section 87 of the Act, one can see that it has nothing to do with membership registers of political parties.
Thus, if Party B chooses to produce its candidate through consensus rather than primaries, what exactly prevents it from adopting a decamped aspirant whose name was never in the register earlier submitted to INEC? The Act does not expressly answer that question. And in law, silence can sometimes be fatal.
It is pertinent to point out that the law didn’t prohibit political parties from accepting new members, whether decampees or otherwise, after their registers have been submitted to INEC in preparation for the primaries.
In another remove, even if the process of adopting a decamped aspirant as a candidate is legally questionable, another problem immediately arises: Who has the legal standing or locus standi to challenge it? This is where the matter becomes even more complicated.
Nigerian electoral jurisprudence has consistently maintained that nomination and sponsorship of candidates are fundamentally internal affairs of political parties. So, only an aspirant who participated in the nomination process of that political party possesses the locus standi to challenge the validity of the process.
Suppose a politician loses the PDP primary and defects to the APC, where he emerges through consensus. Who sues to challenge his candidacy? The PDP he left behind cannot challenge the internal candidate-selection process of APC.
The courts have repeatedly resisted such invitations. I personally encountered this issue in the case of Cynthia v. Achadu, which I handled from the Federal High Court up to the Supreme Court. We succeeded at the trial court.
However, the appellate courts disagreed firmly with our position and maintained that since my client was a member of the PDP, he lacked the locus standi to question the process by which the APC produced its candidate. The implication is profound.
If the new political party adopts consensus and every other aspirant signs withdrawal or consent agreements, there will effectively be nobody with the legal standing to activate judicial scrutiny against the decamped aspirant. And where there is no competent challenger, even a legally vulnerable process may survive untouched.
It is my well considered opinion, that Section 77 of the Electoral Act 2026 did not completely shut the door against an aspirant defecting from one political party to another after losing a primary election or consensus process.
What the section clearly prohibits is participation in another party’s primaries where the aspirant’s name is absent from the membership register earlier submitted to INEC. I don’t think the same restriction automatically applies to a consensus candidacy.
I agree that this is politically and legally combustible. Any politician attempting such a maneuver should seek extremely careful legal guidance.
First Baba Isa, Esq., LLB, BL, LLM, MBA, FIMC, CMC, is a PhD candidate researching the topic: “Evaluating the use of technology and its legal implications to elections in Nigeria.” He writes in from Abuja, the Federal Capital Territory.
NB: Opinions expressed in this sponsored article are strictly attributable to the author, F. Baba Isa Esq,and do not represent the opinion of CrossRiverWatch
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