Forged Certificate, Electoral Act and the Constitution

The Advocate

By Onikepo Braithwaite

Onikepo.braithwaite@thisdaylive.com

Deletion of Section 134(3) of the 2022 Electoral Act

Part of the latest debate on the Electoral Amendment Act 2026 (EAA), is about the alteration of Section 134 of the 2022 Electoral Act (2022 EA) – replacing it with the new Section 138 of the EAA, but deleting therefrom, Section 134(3) of the 2022 EA, which, in a holistic but somewhat convoluted way, appeared to allow candidates to question the constitutional qualifications or disqualifications of other candidates, in election petitions, if there were allegations that such candidates didn’t meet the criteria set out in the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) for elective office.

To tell the truth (and let the devil be ashamed!), I don’t know why I hadn’t really considered Section 134(3) of the 2022 EA; instead, I was fixated on Section 29(5) thereof (which survived unscathed in the EAA, still as 29(5)), and only applies to aspirants challenging fellow aspirants on their qualifications as a pre-election matter at the Federal High Court. I had even gone ahead to argue in favour of having a type of Section 134(3), because I believe that candidates of opposing parties who participate in elections against themselves, and not just fellow aspirants fighting for party tickets, have sufficient interest to make such challenges; not fully realising that though such a provision was hiding in the 2022 EA, it wasn’t really making the required impact. And, instead of improving upon Section 134(3) in order to weed out unsuitable candidates, it has been deleted!

Beyond Forged Certificates

People are complaining that the deleted Section 134(3) was about stopping candidates from challenging other candidates, concerning allegations of presenting forged certificates to INEC; but, it goes beyond that – forged certificates are only one aspect; age, citizenship, sponsorship by a political party; mental health, undischarged bankrupts, those who have been sentenced to death or imprisonment, or convicted of an offence involving dishonesty within a period of less than 10 years before the election in question etc, were all covered by the 2022 EA’s Section 134(3). This provision should not have been deleted; instead, it should have been  improved upon and altered, to expressly state that a ground to challenge an election in a petition, would be that a candidate doesn’t meet the qualifications set out in Sections 65, 106, 131 or 177 of the Constitution, or stands disqualified by virtue of Sections 66, 107, 137 or 182 of the Constitution. Instead it was removed.

How can the deletion of Section 134(3) of the 2022 EA be good lawmaking, within the threshold of Section 4(2) of the Constitution which directs the Legislature to make laws for the peace, order and good government of Nigeria? It is a ‘Carte Blanche’ for people of unsound mind, or those of questionable character who have presented forged certificates, or those who have other constitutional impediments, to be able to easily slip through the cracks unchallenged, because henceforth, by virtue of Section 29(5) of the EAA, only fellow aspirants have the right to make these challenges. Aspirants however, may be threatened with expulsion from their political party, or with other disciplinary actions for going to court without exploring intra-party dispute resolution mechanisms, or compensated by their political party for not making challenges, while the candidates who they face in the election are now barred by statute from exercising this right.

Proof Beyond Reasonable Doubt

Of course, some of these challenges such as lying about one’s age on Form CF001 or any other INEC document, or presenting forged certificates to INEC etc, border on criminal offences such as perjury and forgery, proof of which those making such allegations must discharge beyond reasonable doubt, as it is trite law that ‘he who alleges must prove’. This may be one reason why candidates who raised such allegations under the 2022 EA’s Section 134(3) may not have succeeded, as the mere mention or allegation is certainly inadequate – they may have failed to discharge the requisite burden of proof. In ACN v Lamido & Ors (2012) LPELR-7825(SC) per Mahmoud Mohammed, JSC (later CJN), the Supreme Court held thus: “The allegation of forgery being a criminal offence, must be proved beyond reasonable doubt”. And, the Apex Court concluded in Okon v PDP (2023) LPELR-60099(SC) that where this burden of proof that a document is forged isn’t discharged, such allegation fails. See the case of Uzodinma & Anor v Ihedioha  & Ors (2020) LPELR-50260(SC) per Kudirat Kekere-Ekun, JSC (now CJN), where neither the Petitioner nor INEC adduced any evidence to support their claim that the Respondent tendered forged result sheets. In Abubakar v INEC & Ors 2020 12 N.W.L.R. Part 1737 Page 37, the Supreme Court held that allegations of forgery and presenting false information to INEC are serious and grievous, “not matters or things one party alleges, and then folds his arms to see how the other party wriggles out of it”.

The National Assembly (NASS) appears to have turned such important provisions on constitutional qualifications and disqualifications for elective office into toothless bulldogs, by effectively restricting any challenge concerning them to only aspirants in Section 29(5) of the EAA. But, is the deletion of Section 134(3) of the 2022 EA lawful? The matter of challenging constitutional qualifications and disqualifications do not fall within the purview of Section 6(6)(c) of the Constitution which ousts the jurisdiction of the courts only on matters pertaining to the Fundamental Objectives and Directive Principles of State Policy. Also see Section 6(6)(b) of the Constitution. Can statutory provisions be used to curtail constitutional provisions, when the first provision of the Constitution, Section 1(1), proclaims its supremacy and bindingness on all persons and authorities in Nigeria? I think not.

Locus Standi

A community reading of Sections 1(1), (3), 6(6)(b), (c) & 36(1)(right to fair hearing) of the Constitution, points to the irresistible conclusion that all persons have the right to bring their disputes to court, except those excluded in Section 6(6)(c), once they have the requisite locus standi to institute same, which clothes the court with jurisdiction – see the locus classicus on jurisdiction, Madukolu v Nkemdilim 1962 2 S.C.N.L.R. 341. In Opobiyi & Anor v Muniru (2011) LPELR-8232(SC) per Olufunlola Oyelola Adekeye, JSC, the Supreme Court held thus: “Locus standi is the legal capacity to institute an action, in a court of law”.

In Anyawu v Emmanuel & Ors (2025) LPELR-80882(SC) per Jamilu Yammama Tukur, JSC, the Supreme Court held thus: “Locus standi requires that a Plaintiff demonstrate a sufficient interest in the subject-matter of the suit, and that such interest is one that the law recognises and protects….When determining jurisdictional issues such as locus standi, it is well-established that the Court must scrutinise the Plaintiff’s statement of claim to ascertain their standing….he must show that he has real stakes in the subject- matter, and must be able to establish that he suffered or is likely to suffer from the Defendant’s act or conduct”. Similarly, in Inter Ocean Oil Development Co (Nig) & Ors v Fadeyi & Anor (2024) LPELR-62449(SC) per Haruna Simon Tasmania, JSC, the Supreme Court held: “The burden or onus is on the Plaintiff to show that he has the requisite locus standi. To do that, he has to disclose his special interest or actual threat or injury that he has suffered, or will suffer from the act of the Defendant complained of. In other words, he must show that his civil rights and/or obligations have been, or are in danger of being infringed upon, and that he has sufficient legal interest in seeking the redress in a Court of law”.

I submit that it is as clear as crystal, that a candidate in an election has the locus standi, real stakes and special interest in an election that he/she has participated in, and would directly suffer injury if a fellow candidate who is constitutionally unqualified, is declared and remains the winner of the election; just like all aspirants have special interest in the primaries they partake in, and Section 29(5) of the EAA recognises this special interest by allowing them to exercise their right to challenge the qualifications of fellow aspirants, if they so desire. It should be the same, for candidates.

If for instance, the Respondent was convicted of some money laundering offence less than 10 years before the election in question, or presented a forged WASC result to INEC, a Petitioner who was the runner up in the election, has even more interest than an aspirant who may have won the primary, but not the actual election, because if such Petitioner is able to discharge the burden of proof beyond reasonable doubt on the allegation, then automatically he/she is declared the winner of the election if they have met the constitutional threshold to be declared winner of the election. See PDP & Ors v Degi-Eremienyo & Ors (2020) LPELR-49734(SC) per Ejembi Eko, JSC where the Supreme Court held: “It is clearly fraudulent for one person to allegedly bear several names that he uses variously, chameleonically to suit the changing environment….The sanction for presenting to INEC Form CF001 containing false facts about the personal particulars or information of the candidate, by virtue of Section 31 (6) of the Electoral Act, is an order issued by the High Court, disqualifying such candidate from contesting the election…..The sum total is that the joint ticket of the 1st and 2nd Respondents sponsored by the 1st Respondent, was vitiated by the disqualification of the 1st Respondent. Both candidates disqualified, are deemed not to be candidates at the Governorship election conducted in Bayelsa State. It is hereby ordered that INEC, (the 4th Respondent herein), declare as winner of the Governorship election, the candidate with the highest number of lawful votes cast with the requisite constitutional (or geographical) spread”.

The new Section 138, purports to rob/deny candidates of their locus standi/right to challenge the constitutional qualifications of other candidates, and the right to fair hearing. This is unconstitutional, as is trite that a good law must not only be clear and fair, but in alignment with the Constitution, while also addressing any problems related thereto. I submit that, the new Section 138 of the EAA which excludes the old Section 134(3), is unfair to candidates, and can therefore, not be described as a good law. It is incomplete. It is also discriminatory, contrary to Section 42(1)(b) of the Constitution, giving candidates with questionable qualifications an unfair advantage over those who are eminently qualified. See Lafia Local Government v Government of Nasarawa State & Ors (2012) LPELR-20602(SC) on the guarantee to every citizen, freedom from discrimination.

Conclusion

The resultant effect of the deletion of the 2022 EA’s Section 134(3), is the denial of a Plaintiff who wants to challenge a fellow candidate’s qualifications, the right to fair hearing, a fundamental right that mustn’t be breached – see Lafia Local Government v Government of Nasarawa State & Ors (Supra) on the importance of upholding fundamental rights.    The deletion also evinces the fact that, the law only protects the interest of aspirants and not that of candidates with regard to constitutional qualifications and disqualifications, which is absurd.

If the House of Representatives can amend the recently passed EAA  to criminalise dual party membership, then surely, the National Assembly (NASS) can also re-insert Section 134(3) or a new and improved version of it into the EAA, as leaving it out appears to make the replacement Section 138 of the EAA fail the tests of constitutionality and that of a good law.

NASS must refrain from making self-serving laws, or laws that serve only the interests of incumbent politicians. A good law not only stands the test of time, but serves the public good. A good law promotes accountability, not inculpability and immunity.