Former 2nd vice chairman of the Nigerian Bar Association (NBA), Dr Monday Onyekachi Ubani (SAN), has clarified that the absence of the Independent National Electoral Commission (INEC) at political party congresses, conventions, or primary elections does not, by itself, invalidate such exercises under the Electoral Act 2026.
Ubani explained that although political parties are statutorily required to notify INEC of their internal electoral activities, the commission’s physical presence is not a condition precedent for the validity of those exercises.
Citing Section 82 of the Electoral Act 2026, the senior lawyer noted that parties must give at least 21 days’ notice to INEC before holding conventions, congresses or primaries for electing executives or nominating candidates.
“The law is clear. The obligation placed on political parties is to notify INEC. Failure to do so renders the exercise invalid. However, INEC’s failure or refusal to attend after being duly notified does not invalidate the process,” he said.
Ubani stressed that the law draws a clear distinction between the mandatory duty of political parties to issue notice and the statutory role of INEC to observe such activities, noting that the sanction provided by the Act applies only where parties fail to comply with the notice requirement.
Relying on judicial precedents, he referenced disputes arising from party primaries, including Akpabio v. Ekpoudom, where the courts focused on compliance with electoral laws and party guidelines rather than INEC’s physical attendance.
“The courts have consistently held that what is crucial is whether due process was followed, not whether INEC officials were physically present,” he said.
He added that even where INEC attends a party’s exercise, such presence does not cure fundamental defects, including breaches of party constitutions, electoral guidelines, or allegations of fraud.
The SAN warned that treating INEC’s absence as a ground for invalidating party processes would confer excessive powers on the electoral body and undermine internal party democracy.
“If INEC could nullify party congresses simply by staying away, it would effectively become the determinant of party leadership, which is not the intention of the law,” he stated.
Ubani, however, distinguished such situations from instances involving subsisting court orders, citing controversies surrounding a Peoples Democratic Party (PDP) convention reportedly held in Oyo State.
According to him, where a court of competent jurisdiction restrains an exercise or bars INEC from participation, any action taken in defiance of such an order may be declared invalid.
“In such cases, the issue is not INEC’s absence but disobedience to a valid court order, which strikes at the heart of the rule of law”
The legal expert listed circumstances that could render party congresses or conventions invalid as failure to notify INEC, defective or late notice, violation of party rules, exclusion of delegates, and conduct carried out in breach of a subsisting court order.
He maintained that strict compliance with statutory provisions and internal party regulations remains the decisive factor in determining the legality of political processes.
The SAN emphasised that INEC’s role is essentially regulatory and observational, warning that any misinterpretation of its powers could erode constitutional safeguards and democratic freedoms.
He concluded that once a political party has fulfilled its legal obligation by properly notifying INEC, the commission’s absence cannot invalidate the outcome.
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