The debate over the Electoral Amendment Act 2026 may have faded from public headlines, but what has now emerged from the signed version released by President Bola Ahmed Tinubu reveals something far more troubling than routine legislative tinkering. It exposes a direct confrontation between statute and Constitution.

What the APC-dominated National Assembly of Nigeria has done by altering Section 138 of the Electoral Act 2026 is not merely controversial, it is at variance with the Constitution of the Federal Republic of Nigeria 1999 (as amended).

1. The Constitutional Position
   Under the CFRN 1999, qualification and disqualification for elective offices are exhaustively provided for:
   Section 131 & 137 – Qualification and disqualification for President.

Section 177 & 182 – Qualification and disqualification for Governor.

Sections 65 & 66 – Qualification and disqualification for National Assembly.

Grounds for disqualification include:
Allegiance to another country;

Adjudication of bankruptcy;

Conviction for certain offences;

Forgery or presentation of false certificates;

Failure to meet educational thresholds; and

Membership in secret societies (where applicable).

These are constitutional thresholds. They are not optional. They are not procedural. They are substantive conditions precedent to eligibility.

2. The Electoral Act Amendment Act 2026 Problem
   Historically, Section 138 of the Electoral Act provided for three grounds that an election may be questioned to include substantial non-compliance, that person declared as winner did not score the majority of lawful votes and that:
   “the person whose election is questioned was not qualified to contest the election.”

In the amended Section 138 the third ground of qualification has been surreptitiously removed. The removal of qualification as a ground for questioning a return, in the amended EA 2026 is an attempt to close the judicial door on post-election constitutional scrutiny of eligibility.

That is where the constitutional crisis or collision arises.

3. Doctrine of Constitutional Supremacy
   Section 1(1) of the Constitution declares its supremacy.
   Section 1(3) is even clearer:
   If any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.
   The National Assembly even when controlled by the All Progressives Congress has no legislative authority to neutralize constitutional disqualifications through ordinary legislation.

If the Constitution says a person must be qualified, a statute cannot say citizens cannot question that qualification after an election.

That would amount to indirectly amending the Constitution without complying with Section 9 (the constitutional amendment procedure requiring supermajority and state ratification).

4. The Legal Contradiction
   If qualification remains a constitutional requirement but is no longer a statutory ground for election petition, the result is absurd:
   The Constitution imposes qualification as a ground to question an election.
   The Electoral Act blocks post-election enforcement of the ground.
   The courts are procedurally constrained.
   The electorate is left without remedy.
   That is a structural inconsistency.

A statutory provision that disables enforcement of a constitutional requirement is, by necessary implication, inconsistent with the Constitution and therefore null and void to the extent of its inconsistency.
The Supreme Court of Nigeria has repeatedly held that the Electoral Act cannot override constitutional provisions governing qualification.

5. The Broader Democratic Implication
   The controversy surrounding President Bola Ahmed Tinubu’s non-qualification to contest the 2023 presidential election, whether politically exaggerated or legally sustainable or not, made transparency and judicial openness more necessary, not less.

A democracy confronted with allegations strengthens scrutiny. It does not legislate insulation.
Where the law appears structured to narrow the grounds upon which eligibility may be questioned, suspicion of legislative self-protection inevitably arises. That perception alone erodes institutional legitimacy.

6. Legal Consequence
   If challenged, a court would be invited to determine:
   Whether the amendment conflicts with constitutional qualification provisions.
   Whether it amounts to an indirect constitutional amendment.
   Whether it violates the right to fair hearing and access to court.
   Whether it undermines the basic structure of constitutional democracy.
   Should inconsistency be established, the offending portion of Section 138 would be struck down, not the entire Act, but the those void to the extent of the inconsistency. Conclusion
   This issue is not about party rivalry. It is about the hierarchy of laws.
   The Constitution sets the standards for who may govern Nigeria.
   The Electoral Act cannot dilute, suspend, or procedurally suffocate those standards.
   If qualification is constitutionally mandatory, then judicial review of qualification must remain legally accessible.
   Anything less places the statute above the Constitution, and that, under Nigerian constitutional law, is impossible.
   History does not forgive legislatures that attempt to outmaneuver constitutional supremacy.

I therefore call on the opposition political parties to in addition to section 138 also consider litigating sections 77, 82, and 84 to test the competence of the NASS to alter the constitution requirement through legislation and to control rather than regulate the internal affairs of political parties in the light of the express provisions of sections 1(1)(3) (40) and 222-228 CFRN 1999 (as amended).

Alex Ter Adum, Ph.D

DDG THE NARRATIVE FORCE

alexadum45@gmail.com