By Sam Kargbo, SAN
There is a growing but profoundly mistaken assumption in some political and legal circles that because “qualification” no longer appears expressly as a post-election ground under section 134 of the Electoral Act 2026, the Nigerian constitutional order has somehow relaxed its insistence that only qualified persons may contest elections. Nothing could be further from the truth. The misconception stems from a misunderstanding of the statutory and procedural restructuring introduced by the Electoral Act 2026. The Act has not abolished qualification disputes. Rather, it has removed the previous duplicity under which qualification could simultaneously exist both as a pre-election matter and as a post-election ground of challenge. The constitutional and statutory architecture now confines qualification disputes principally to the pre-election framework, thereby ensuring that questions of constitutional eligibility are resolved before the electorate proceeds to the polls and before democratic mandates crystallize.In essence, the Electoral Act 2026 reflects a deliberate constitutional policy that electoral mandates should not ordinarily be destabilized after elections on grounds of qualification that could and ought to have been conclusively determined before the election itself.
Indeed, nothing in the Electoral Act 2026 weakens, diminishes or dilutes the constitutional provisions governing qualification and disqualification for elective office under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The constitutional architecture remains entirely intact. Sections 65 and 66 regulate qualification for the National Assembly; sections 106 and 107 govern State Houses of Assembly; sections 131 and 137 concern the office of President; while sections 177 and 182 regulate qualification and disqualification for Governor. These constitutional provisions remain supreme and exhaustive. They constitute a complete constitutional code on qualification for elective office.
The Electoral Act 2026 merely restructures the procedural mechanism through which qualification disputes are ventilated, determined and conclusively resolved. Rather than allowing qualification disputes to destabilize electoral mandates after elections have already been conducted, the constitutional system now frontloads such disputes into the pre-election phase. This is why section 29(5) of the Electoral Act 2026 has become one of the most constitutionally significant provisions in modern Nigerian electoral jurisprudence. It allows an aspirant who participated in party primaries to challenge false information submitted by another candidate concerning constitutional qualification. Section 29(6) further empowers courts to disqualify candidates where false constitutional qualification information is established.
The constitutional philosophy underlying this restructuring is both sophisticated and deliberate. The objective is to ensure that qualification disputes are resolved before elections take place, so that only constitutionally eligible candidates ever appear on the ballot. In this way, electoral mandates are protected from unnecessary post-election instability. Tribunals are thereby insulated from becoming arenas for relitigating antecedent qualification controversies after citizens have already voted. The emphasis is now on securing constitutional legitimacy before elections rather than correcting constitutional illegality after democratic mandates have crystallized.
This constitutional approach strengthens, rather than weakens, electoral legitimacy. It reflects what may properly be described as a philosophy of “pre-election purification of the ballot.” The constitutional order now seeks to prevent unqualified candidates from participating in elections in the first place instead of allowing such candidates to contest elections and subsequently destabilizing democratic mandates through prolonged post-election litigation. The architecture promotes democratic certainty, constitutional orderliness and electoral stability.
The suggestion that qualification no longer matters collapses immediately once the Constitution and extant jurisprudence are carefully examined. Qualification remains constitutional, mandatory, judicially enforceable and foundational to democratic legitimacy. The Constitution still prescribes qualifications and disqualifications. Courts still retain jurisdiction over qualification disputes. False information concerning qualification still attracts disqualification. Constitutional eligibility remains judicially supervised. Unlawful candidacy still vitiates electoral legitimacy.
The jurisprudence on this point remains overwhelming. In Alhassan & Anor v. Ishaku & Ors (2016) 10 NWLR (Pt. 1520) 230, the Supreme Court reaffirmed that qualification derives exclusively from the Constitution itself. Similarly, in Agi v. Peoples Democratic Party (2017) 17 NWLR (Pt. 1595) 386, the Court emphasized that constitutional qualification remains judicially enforceable notwithstanding party autonomy. In PDP v. INEC & Ors (2022) LPELR-60457(SC), the Supreme Court undertook an extensive analysis of constitutional qualification and double nomination without ever suggesting that qualification had somehow ceased to matter. On the contrary, the Court reaffirmed that qualification disputes belong within the specialized constitutional framework governing pre-election matters.
It is therefore constitutionally indefensible to argue that once an unqualified candidate slips into office, the election automatically becomes immune from judicial scrutiny. The Nigerian constitutional order has consistently rejected the legitimacy of unconstitutional occupancy of public office. Courts have repeatedly insisted that constitutional qualification is foundational to democratic legitimacy itself. Where an unqualified person contests and wins election during the pendency of litigation challenging his qualification, courts retain constitutional authority to nullify such election once constitutional disqualification is established.
This principle flows directly from constitutional supremacy. An unconstitutional candidacy cannot mature into constitutional legitimacy merely because votes have been cast. Votes cannot constitutionalize disqualification. Democratic mandates cannot arise validly from constitutional illegality. The Constitution remains supreme over electoral outcomes. Nigerian courts have repeatedly invalidated elections where candidacy itself was constitutionally defective because constitutional supremacy cannot yield to electoral expediency.
Seen from this perspective, the Electoral Act 2026 reflects considerable constitutional wisdom. Rather than permitting qualification disputes to destabilize completed electoral mandates before tribunals, the constitutional system now seeks to resolve such disputes early, secure the democratic process in advance, preserve electoral certainty, minimize post-election constitutional crises and ensure that only constitutionally qualified candidates participate in elections. Election tribunals are now institutionally encouraged to focus principally on the validity of elections themselves, substantial compliance, corrupt practices, unlawful voting, violence and result integrity rather than antecedent qualification controversies that could and should have been resolved before elections.
The importance of section 29(5) therefore cannot be overstated. It preserves judicial oversight over constitutional qualification while simultaneously relocating qualification litigation into the pre-election framework. Most importantly, qualification disputes under section 29(5) now proceed through the ordinary appellate hierarchy all the way to the Supreme Court. This ensures full judicial ventilation of qualification disputes before electoral mandates crystallize. Qualification adjudication has therefore not disappeared. It has become more specialized, more constitutionally structured and more judicially supervised.
At its deepest level, the constitutional philosophy underlying the Electoral Act 2026 is that electoral expediency cannot override constitutional legitimacy. The electorate may choose candidates politically, but constitutional qualification remains juridically controlled by the Constitution and ultimately enforced by the courts. This delicate balance preserves both democratic participation and constitutional supremacy.
The judiciary therefore remains the ultimate guardian of constitutional qualification. Far from weakening qualification requirements, the Electoral Act 2026 strengthens them institutionally by ensuring that qualification disputes are resolved earlier, more comprehensively and under full constitutional supervision extending all the way to the Supreme Court. The Constitution remains supreme. Qualification still matters profoundly. And no electoral mandate can constitutionally survive where founded upon constitutional disqualification.
Sam Kargbo, a Senior Advocate of Nigeria, writes from Abuja
© Abuja 18/05/2026
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