A fresh constitutional storm is gathering over the newly enacted Electoral Act 2026, with legal scholars, civil society actors and political stakeholders warning that the National Assembly may have set the stage for a confrontation between legislative authority and constitutional supremacy.

At the heart of the controversy lies Section 138 of the Act, a provision that critics say narrows the grounds upon which election results may be challenged, while conspicuously omitting qualification, including allegations of certificate forgery, as a basis for election petitions.

The implications, observers insist, go beyond technical drafting; they strike at the philosophical core of Nigeria’s democratic order: who qualifies to hold public office, and who ultimately decides?

Section 138(1) provides that an election may only be questioned on two grounds: that it was invalid by reason of corrupt practices or non-compliance with the Act, or that the respondent was not duly elected by a majority of lawful votes cast. Subsection (3) goes further, prescribing penalties of not less than N5 million on counsel and N10 million on petitioners who file outside these grounds.

Previous electoral frameworks explicitly recognisedqualification as a ground for election petitions. That ground covered allegations such as age falsification, perjury and certificate forgery. Its omission from the new Act, critics argue, represents not just legislative tinkering but a potentially seismic shift in Nigeria’s electoral jurisprudence.

Constitutional provisions appear unambiguous. Sections 137(1)(j) and 182(1)(j) of the 1999 Constitution (as amended) disqualify any person from contesting for the offices of President or Governor if he or she has presented a forged certificate to the Independent National Electoral Commission (INEC). Similarly, Sections 66(1)(i) and 107(1)(i) bar such persons from election into the National Assembly and Houses of Assembly.

For constitutional lawyers, qualification is not procedural; it is substantive and foundational.

“The Constitution is supreme,” said former Minority Leader, Olorunnimbe Mamora. “Any provision of an Act that seeks to limit the enforcement of constitutional qualification criteria is liable to be struck down for inconsistency.”

He urged Nigerians to challenge the contentious provision in court, warning that failure to do so could pose long-term threats not only to democracy but to the integrity of Nigeria’s academic system.

His argument rests on Section 1(3) of the Constitution, which declares that any law inconsistent with its provisions shall, to the extent of the inconsistency, be void.

The National Assembly has unquestioned authority to regulate electoral procedures. But critics argue that it cannot enact legislation that restricts the enforcement of constitutional disqualifications.

If interpreted strictly, Section 138 may compel litigants alleging certificate forgery to pursue separate civil or criminal proceedings outside the election tribunal framework. That shift, legal analysts warn, could fragment post-election accountability and delay resolution of qualification disputes long after electoral mandates had been secured.

Even more troubling to some is the financial deterrent embedded in subsection (3). The heavy penalties attached to filing petitions outside the prescribed grounds may discourage counsel and petitioners from testing constitutional questions within the election petition structure.

For a democracy where post-election litigation has become almost routine, the chilling effect could be significant.

Yet some legal scholars believe the courts will ultimately reconcile the apparent conflict. The judiciary, they argue, may interpret Section 138 in a manner consistent with constitutional provisions, or strike down the offending portions altogether.

For academic integrity and political morality, Prof Ayo Olukoju of the University of Lagos (UNILAG) called on lawmakers to revisit the provision to ensure full constitutional alignment.

He warned of broader reputational consequences if allegations of certificate forgery are perceived to be shielded from effective challenge.

“If this stands,” he argues, “it sends a troubling signal about our standards.”

Lawyer and member of the apex Igbo socio-cultural organisation, Ohanaeze Ndigbo, Goddy Uwazurike, described the law as “an Electoral Act of confusion,” insisting that existing criminal statutes, including the Evidence Act and Criminal Code, already address certificate forgery.

For founding member of the Middle Belt Forum (MBF), Isuwa Dogo, the controversy reflects deeper institutional weaknesses. He alleged that the handling of the amendment raises questions about legislative intent and called on professional bodies — including the Nigeria Union of Journalists (NUJ), Nigerian Bar Association (NBA) and Academic Staff Union of Universities (ASUU) — to test the law in court.

Similarly, President of the Yoruba Ronu Leadership Forum, Akin Malaolu, accused the ruling All Progressives Congress (APC) of enabling questionable provisions that could undermine democratic safeguards. He urged collective civic action to resist what he described as a dangerous precedent. (The Guardian)

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