Constitutional, Legal and Practical Issues in Direct Primaries and Consensus Option

This article by Festus Okoye thoroughly examines the various issues concerning party primaries, from aspirants to nomination of candidates, primaries, register of members, party defection, internal party affairs and litigation, making comparisons with the older Electoral Laws

Introduction

Most political parties are preparing for their primaries to nominate candidates for the Presidency, the Governorship, and the National and State Assemblies, if they choose to do so. Some will nominate presidential candidates. Some will endorse the presidential candidate of other parties. Some will nominate gubernatorial candidates and candidates for the National and State Assemblies. Some may not have the capacity to field candidates, and may trade off their seats to those excluded from other parties or to disgruntled, ambitious candidates from those parties. 

 However, with the tight and contentious provisions of the Electoral Act, 2026, and the self-inflicted and planted crisis in most political parties, party primaries and nomination processes may throw up more disputes than imagined. The party primary and nomination processes may also breed a new army of the angry, who may be short-changed by the contentious primaries and nomination processes of the parties and by their unwillingness, and to some extent, inability, to challenge their exclusion. 

Party Nominations: Matters Arising

There is no doubt that the methods of nominating candidates for various elective positions in Nigeria have been evolving, fluctuating, and at times, regressing. Sometimes, the political party primarily determines who becomes its candidate, as outlined in its constitution; at other times, party godfathers dominate candidate selection. There are periods when the party aims to be genuinely democratic, with candidates nominated through the procedures set out in the party’s constitution. Conversely, there have been instances where party leaders submitted the names of individuals who did not participate in the primaries, to the electoral management body. 

 Occasionally, courts have intervened to restore order to the nomination process. At the same time, they emphasise that the party is sovereign and must have the authority to decide its candidates. At other times, the National Assembly has amended the Electoral Act to bring sanity to the party nomination process. However, it seems that political parties still find ways to circumvent due process and remain comfortable with their poor electoral conduct.  

 What then is the problem, and why are the political elite running in circles over internal party processes, the conduct of primaries and the nomination of candidates? Why are the parties not getting it right in screening, conducting primaries and nominating candidates? Why have the various amendments to the law failed to bring sanity to the process? Why has judicial intervention not been effective, in keeping the courts away from party issues and challenges?  

The Electoral Act, 2010, specified only two methods for nominating candidates for various offices created under the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Under Section 87 of the now-repealed Electoral Act, 2010, political parties may select their candidates solely through indirect or direct primaries. The procedures for indirect primaries are clearly outlined, and the steps for direct primaries are likewise detailed in Section 87 of the Act. Under Section 85(1) of the Act, a political party wishing to convene a meeting, congress, conference, or convention must give the electoral management body 21 days’ notice of its intention to do so. The Electoral Act, 2010, did not provide for the consensus option in party primaries. 

 Under Section 85(2) of the same Act, the electoral management body may observe a meeting, congress, conference, or convention, whether or not it is invited. Section 87 of the Act set out transparent procedures for nominating candidates. In direct primaries, the party must conduct them in accordance with its guidelines, ensuring that all aspirants have an equal opportunity to be voted for. The party must also declare the aspirant with the highest number of votes as the winner of the primaries, and submit the name to the electoral management body. 

 Section 87 of the Act also contains detailed provisions governing the conduct of indirect primaries. Under Section 87(9), any party that fails to comply with the nomination process and procedures, shall have its candidate for election disqualified from contesting that position. The Act does not define the term ‘aspirant’, but the Judiciary, in various pronouncements during the operation of the Electoral Act, 2010, clarified who qualifies as an aspirant. 

 The Electoral Act, 2022, introduced the option of selecting candidates by consensus, in primary elections. Section 84(9) of the Act provides that a political party selecting a consensus candidate must obtain the written consent of all cleared aspirants, confirming their voluntary withdrawal from the race and their endorsement of the consensus candidate. If a political party cannot secure the written consent of all cleared aspirants to a consensus candidate, it must revert to direct or indirect primaries to nominate candidates for elective positions. 

Section 155 of the Act defines an aspirant and a candidate. It defines an “Aspirant” as a person who aspires to or seeks to contest an election for a political office, and a “Candidate” as a person who has received a political party’s nomination to contest an election for any elective office. 

If a political party fails to comply with the provisions of the Act during its primaries, its candidate for the election shall not be included in the election for that position. 

Section 84(14) removes the High Courts’ jurisdiction to hear pre-election matters, and confers exclusive jurisdiction on the Federal High Court in this regard. It provides that an aspirant who alleges that any provisions of the Act or a political party’s guidelines have not been followed in the selection or nomination of a candidate may apply to the Federal High Court for redress. 

However, Section 29(5) of the Electoral Act, 2022, confers locus standi only on any aspirant who participated in his political party’s primaries and who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit, or any document submitted by that candidate in relation to his constitutional requirements to contest the election, is false. Such an aspirant may file a suit in the Federal High Court against that candidate, seeking a declaration that the information contained in the affidavit is false.

In some cases, decided under the Constitution and the Electoral Act, 2022, it is the prerogative of the party to determine whom to sponsor for various positions in accordance with its constitution and guidelines. The Supreme Court, in a line of authorities, has held that the courts will not determine for a political party who to sponsor, or who its candidate should be. 

The various courts, especially the Supreme Court of Nigeria, have laid down irreducible minimums and principles that must guide the conduct of primaries and the sponsorship and nomination of candidates. 

1. Political parties must be allowed to run their affairs, and it is not the courts’ responsibility to choose candidates for political parties. Accordingly, the Courts have held that the sponsorship and nomination of candidates is the responsibility of the political party. The Courts have consistently held that the right of a Political Party to nominate or sponsor a candidate is a domestic right of the party, and that a member of the party has no legal right to be nominated or sponsored by his party. A Court therefore, has no jurisdiction to determine who a political party should sponsor. Nomination or sponsorship of a candidate for election is a political matter solely within the discretion of the party, as it is a pre-primary election affair of the party. However, where the political party conducts its primary and a dissatisfied contestant at the primary complains about the conduct of the primaries, the Courts have jurisdiction, by virtue of the provisions of Section 87(9) of the Electoral Act, to examine whether the conduct of the primary elections was in accordance with the party’s constitution and Guidelines. This is because, in the conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it pleases. A political party must obey its own Constitution. Per Olabode Rhodes-Vivour, J.S.C in PDP & Anor v Sylva & ors (2012) LPELR-7814(SC) (Pp. 35-36).

 2. Political parties must not act arbitrarily in party primaries, or in the nomination of candidates. They must act within the confines of their constitutions and electoral guidelines, and in accordance with the provisions of the Electoral Act. See A.P.C v Marafa (2020) 6 NWLR (Pt. 1721), 383, and Yar’Adua v Yandoma (2015) 4 NWLR (Pt. 1448), 123.

 3. To activate the jurisdiction of the Courts in relation to primaries and sponsorship, a Plaintiff must first show that he is an aspirant who participated in the primary election sought to be challenged, and secondly, that his grievance falls within the narrow provisions of Section 285(14) of the Constitution and Section 84(14) of the Electoral Act. Both conditions must be satisfied for complaints concerning the nomination or selection of candidates of a political party to be justiciable. See UBA v Moghalu & Ors (2022) LPELR-57876 (SC); UBA v Ozigbo & Ors (2021) LPELR-566672(SC); APGA v Anyanwu & Ors (2014) LPELR – 22182 (SC); PDP & Anor v Lawal & Anor (2022) LPELR-59169 (SC).

 4. It is the responsibility of the party’s National Executive Committee to organise primaries, not the State Executive Chapter or Committee of the political party. See the case of Emeka v Okadigbo (2012) 18 NWLR (Pt. 1331) at 55; Emenike v D.P.P. (2012) NWLR (Pt. 1315) 556 at 594, 600, 602; and Yar’adua & Ors v Yandoma & Ors (2014) LPELR-24217(SC) (Pp. 106-109).

 5. It is mandatory for the political parties to hold their congresses at the constituency headquarters, for the purpose of electing their candidates

 6. Where a political party fails to comply with the provisions of Section 84(13) of the Electoral Act, 2022 in conducting its primaries, a candidate who is said to have emerged from a primary election conducted in deliberate violation, breach and non-compliance with the provisions of the Act, shall not be included in the election (Alagbaoso v INEC & Ors (2023) LPELR-59702(SC)).

There are similarities and troubling provisions in the Electoral Act, 2022 that are repeated and/or retained in the Electoral Act, 2026. There are draconian and anti-democratic provisions in the Electoral Act, 2022 that have been tightened to render political godfathers, incumbents and anti-democratic forces more powerful and more menacing. 

The Electoral Act, 2026, retains most of the features of the 2022 Act, addresses some of its loopholes, and, at the same time, introduces draconian and anti-democratic provisions. It removes some of the guardrails in the Electoral Act, 2022, that were designed to prevent political godfathers from imposing candidates on their parties, and from manipulating the party’s internal mechanisms to secure predetermined sponsorship for some candidates and to exclude others. 

Direct Primaries 

The Electoral Act, 2022, sets out clear and detailed provisions for direct primaries. It provides that a political party adopting the direct primaries procedure, shall ensure that all aspirants are given an equal opportunity to be voted for by the party’s members. In the case of presidential primaries, all registered members of the party shall vote for aspirants of their choice at a designated centre in each ward of the Federation; the same procedure shall be adopted for direct primaries in respect of Gubernatorial, Senatorial, Federal and State Constituencies. Special conventions or congresses shall be held to ratify the candidate with the highest number of votes at designated centres for the National, State, Senatorial, Federal and State Constituencies, as the case may be.

In place of the safeguards in Section 84(4) of the Electoral Act, 2022, which require registered members of the party to vote for aspirants of their choice at designated centres in the 8,806 registration areas or wards, Section 86 of the Electoral Act, 2026 simply provides that all direct primaries shall be conducted in accordance with each political party’s guidelines.

The implication is that each political party designs its own direct primary framework, which may exclude party members. It also suggests that direct primaries may effectively be another form of indirect primaries, designating who votes and where the vote will take place. It also suggests that, direct primaries are whatever the party defines and designates as such. Can an aspirant challenge the party’s guidelines, or are they part of the party’s internal affairs, for which courts are stripped of jurisdiction? 

Consensus Candidates 

Section 84(9) of the Electoral Act, 2022, provides for the Consensus Candidate. It provides that a political party that adopts a consensus candidate shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate. Where a political party is unable to secure the written consent of all cleared aspirants for the purpose of a consensus candidate, it shall revert to direct or indirect primaries for the nomination of candidates for the aforesaid elective positions. A special convention or nomination congress shall be held to ratify the choice of consensus candidates at designated centres at the National, State, Senatorial, Federal and State Constituencies, as the case may be.

Section 87 of the Electoral Act, 2026, adopts the same wording as Section 84(9) of the Electoral Act, 2022. It provides that a political party that adopts a consensus candidate shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate. If a political party is unable to secure the written consent of all cleared aspirants for the purpose of a consensus candidate, it shall revert to direct primaries for the nomination of candidates for the elective positions. A special convention or nomination congress shall be held at designated centres at the National, State, Senatorial, Federal and State Constituencies, to ratify the choice of consensus candidates. 

Does this consensus involve all members of a political party? Consequently, does it include the party executives at the 8,809 electoral wards across the country? More concretely, who convenes the meeting to reach a consensus? Who selects those who will participate in the consensus process? Does consensus crystallise the moment the Governor or a godfather endorses or anoints an aspirant? Will nomination forms be sold to those who indicate interest in running for positions after the Governor has endorsed and/or appointed a candidate? 

Cleared, Uncleared Aspirants and Litigation 

Both the Electoral Act, 2022, and the Electoral Act, 2026, introduce a new twist to the contentious issue of what constitutes a political party’s internal affairs. Section 84(9) of the Electoral Act, 2022, and Section 83(5) and (6) of the 2026 Act provide that no Court in Nigeria shall have jurisdiction over any suit or matter concerning the internal affairs of a political party. If such an action is brought in violation of Section 83(5) and (6), no interim or interlocutory injunction shall be granted by the Court; instead, the Court shall suspend its ruling and deliver it at the stage of final judgement, while also granting an expedited hearing to the case. Upon conclusion, the Court shall impose costs of no less than N10,000,000.00 on the Counsel who filed the action, and no less than N10,000,000.00 on the Plaintiff/Applicant. Additionally, the Court may require the offending parties to pay any costs, including solicitors’ fees, incurred by it if it is joined as a party. 

 Can an uncleared aspirant be considered an aspirant under the Constitution and the Electoral Act? This is given that a political party may decide to clear only “aspirants” from a specific local government, communities with a large voting bloc, a particular religious group, or aspirants with the necessary resources or influential backers. Can this group of uncleared “aspirants” challenge their denial of nomination forms or their disqualification in court? What if they decide to challenge their non-clearance? Are they ready to deposit no less than N10,000,000.00 as a penalty on the Counsel who filed the action, and no less than N10,000,000.00 on the Plaintiff/Applicant? Additionally, are they ready to pay the Commission any costs, including solicitors’ fees, incurred by the Commission if it is joined as a party? 

 However, Section 285(14) provides that an aspirant can go to court on the issues set out in subsection 14, which are pre-election issues. It states that “pre-election matter” means any suit by an aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of political party primaries, and the provisions of a political party’s guidelines for the conduct of party primaries, have not been complied with by a political party, in respect of the selection or nomination of candidates for an election; an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election; an aspirant who complains that the provisions of the Electoral Act or any Act of the National Assembly have not been complied with by the Independent National Electoral Commission (INEC) in respect of the nomination of candidates of political parties for an election, the timetable for an election, the registration of voters and other activities of the Commission in respect of preparation for an election; or a political party challenging actions, decisions or activities of the INEC disqualifying its candidate from participating in an election. 

 The Direct Primaries, as set out in Section 86 of the Electoral Act, and the Consensus option, as set out in Section 87 of the Act, effectively foreclose the option of going to court. While the Party Guidelines pigeonhole the issues and present them as internal party affairs, the Consensus option appears to limit locus standi to cleared aspirants. 

 Moreover, Section 29 of the Electoral Act makes it clear that only an aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by the political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court in the Federal Capital Territory or in the jurisdiction the cause of action arose, against that candidate seeking a declaration that the information contained in the affidavit is false. 

 Furthermore, the so-called aspirant who participated in the primaries has nothing to gain because, if the Court determines that any information in the affidavit is false only in relation to constitutional eligibility requirements, the Court shall issue an order disqualifying the candidate and the sponsoring political party. 

 The bigger challenge for aspirants is that, they have no recourse when their party treats them cavalierly. In the case of direct primaries, they may be caught by the draconian provision that strips the courts of jurisdiction over internal party affairs and imposes a heavy fine on the Plaintiff and Counsel. In the second issue relating to the consensus option, the aggrieved individual does not fall within the definition of an aspirant under Section 29 of the Electoral Act 2026. 

Party Defection

Those who may wish to jump ship are also precluded from doing so. Section 77 of the Electoral Act, 2026 provides that a party shall maintain a digital register of its members containing the name, sex, date of birth, address, State, Local Government, ward, polling unit, National Identification Number and photograph, in both hard and soft copies. Each political party shall make such register available to the Commission not later than 21 days before the date fixed for the party primaries, congresses or conventions. Only members whose names are contained in the register shall be eligible to vote and be voted for in party primaries, congresses and conventions. A political party shall not use any other register for party primaries, congresses and conventions except the register submitted to the Commission. A party that fails to submit the membership register within the stipulated time, shall not be eligible to field candidates in the election. 

Register of Party Members 

At a meeting of the Commission with political parties on Tuesday, 24th March, 2026, parties agreed, based on the provisions of the Act, that the submission of the register of members originally fixed for 1st April 2026 to 21st April 2026 should be adjusted. This means that political parties must conduct their primaries between the 23rd of April and the 30th of May 2026 in accordance with Section 77 of the Electoral Act, 2026. Therefore, the register of members must be submitted to the Commission not later than 21 days before the conduct of their primaries. The final deadline for this is 10th May 2026. 

 Direct primaries under the Electoral Act, 2026, have reduced party members in the 8,809 electoral wards to mere onlookers, as most parties are exploring the consensus option, which prevents any contact with party members. The opacity of the consensus option is evident in the Governors’ stranglehold and in the adoption of the doctrine of endorsement and anointing in candidate selection. In all this, it is the electoral process that is being diminished. The consensus framework, though facially inclusive, operates in practice as a mechanism for pre-determined outcomes driven by political incumbents and power brokers.

 More troubling is the deliberate contraction of judicial oversight through provisions that characterise critical aspects of candidate selection as internal party affairs, while simultaneously imposing punitive costs on litigants. This creates a chilling effect on aspirants and effectively insulates political parties from accountability, even in cases of clear procedural abuse. The resulting framework produces a class of politically excluded actors who are left without meaningful legal remedies.

 Political parties and their leaders must root parties in their membership, and one way to do so is through their participation in party activities, especially in primaries to determine who amongst their leaders and critical stakeholders can best represent them in contests with other political parties and candidates. The present configuration reduces them to mere onlookers and non-stakeholders in the democratic and electoral process, and it is not good for party membership and our democratic growth.  

Law-making is a serious constitutional undertaking, and all key stakeholders must remain vigilant throughout the law-making process, including during amendments or repeal. The Electoral Act, 2026, contains many draconian and anti-democratic provisions, and, unfortunately, Nigerians must approach the 2027 general election with these provisions still in the statute book. The continued operation of these provisions raises serious concerns about the legitimacy of candidate emergence processes and, by extension, the credibility of the electoral system itself. If left unaddressed, these structural deficiencies may deepen political alienation, strengthen elite control, and weaken public confidence in the electoral process.

Festus Okoye, Lawyer; former INEC National Commissioner