Court to rule on Electoral Act provision on INEC’s power to review election results

The Federal High Court in Abuja has fixed 8 December to deliver judgement in a suit challenging the power of the Independent National Electoral Commission (INEC) to review election results under the Electoral Act 2026.

Judge Muhammad Umar, on Tuesday, fixed the date after the parties adopted their respective filings and presented their final arguments.

The suit was filed on 24 August by Abuja School of Social and Political Thoughts, a Nigerian not-for-profit and intellectual forum advancing independent thinking on politics, law, economic policy, and media and culture and its director, Sam Amadi.

The plaintiffs sued the Attorney-General of the Federation (AGF), the National Assembly, the Senate, the House of Representatives, INEC and Nigeria’s 22 registered political parties, including the All Progressives Congress (APC), the Peoples Democratic Party (PDP) and the Nigeria Democratic Congress (NDC).

They urged the court to strike down section 65(b) of the Electoral Act 2026, which empowers INEC to review, within seven days, the results declared by returning officers in violation of prescribed procedures.

Section 65 of the Act provides INEC “shall have the power, to within seven days, review the declaration and return where it receives report from its officials, and it is satisfied that a declaration or return may have been made —

“(b) knowingly and willfully contrary to the procedures prescribed under section 62 (4) – (8) of this Act.”

Subsection (b), which centres on a return or declaration that intentionally violates prescribed procedures, is the part the plaintiffs’ suit contested.

The plaintiffs urged the court to hold that the said Section 65(b) of the Electoral Act interferes with, alters, or sets aside the declaration or result of an election made by the returning officer.

At Tuesday’s hearing, the plaintiffs’ lawyer, Kemasuo­de Wodu, a Senior Advocate of Nigeria (SAN), argued that section 65(b) of the Electoral Act constituted a threat to democracy and asked the court to declare the provision unconstitutional.

Responding, the lawyer for the National Assembly, the Senate and the House of Representatives, Williams Pius, urged the court to dismiss the suit, describing it as “incompetent and academic”.

Mr Pius maintained that the provision did not prevent aggrieved parties from approaching the courts “after INEC declared an election result”.

Similarly, INEC’s lawyer, Afam Osigwe, a SAN, who is the immediate past president of the Nigerian Bar Association (NBA), urged the court to dismiss the suit, as he maintained that setting aside the provision could allow a person who “obtained a position through fraud to benefit from that fraud”.

Also the lawyers representing APC, PDP, NDC, Action Democratic Party, Action People’s Party, African Action Congress, All Progressives Grand Alliance, Boot Party, National Rescue Movement, Youth Party and Social Democratic Party took their turns to oppose the suit and called on the court to dismiss it.

However, a handful of political parties comprising the African Democratic Congress (ADC), Action Alliance and National Democratic Party aligned with the plaintiffs’ position and asked the court to grant their prayers.

The AGF and about five of the 22 parties, including the New Nigeria People’s Party and Democratic Leadership Alliance, were not present at Tuesday’s hearing.

After hearing the submissions of those present, the court fixed 8 December for judgment.

Mr Amadi and the Abuja School of Social and Political Thoughts asked the court to determine whether Section 65(b) of the Electoral Act 2026 is unconstitutional insofar as it empowers INEC to review results declared by returning officers for alleged non-compliance with Section 62(4)–(8).

They also questioned whether the provision conflicts with Sections 79, 119, 139, 184 and 285(1)–(5) of the 1999 Constitution, as amended, and Section 134(1) of the Electoral Act 2026.

Section 134(1) provides that an election and its return “shall not be questioned in any manner other than by a Petition” before a competent tribunal or court. The plaintiffs argued that this provision should prevail because it directs challenges to election results through petitions.

Mr Amadi, who swore the supporting affidavit, maintained that INEC cannot alter or set aside a result once declared by a returning officer. He argued that only the appropriate election tribunal can challenge the declaration and cited Section 285(5) of the Constitution, which gives petitioners 21 days to file an election petition.

The plaintiffs further argued that neither the National Assembly nor the President can constitutionally empower INEC to interfere with such declarations. Citing Section 1(3) of the Constitution, they contended that section 65(b) is null and void to the extent of its inconsistency with the Constitution.

They warned that the power could cause “confusion, anarchy and a breakdown of law and order”.

Describing the suit as a public-interest action, the plaintiffs argued that the Act lacks safeguards against the “arbitrary exercise” of the power and does not require INEC to hear the declared winners before reviewing results. They urged the court to declare Section 65(b) unconstitutional.

President Bola Tinubu assented to the Electoral Act 2026 on 18 February after the National Assembly amended the 2022 Act.

Under the legacy Electoral Act 2010, section 68 provided that a returning officer’s decision on scores and a candidate’s return was final, subject only to judicial review.

But this provision underwent significant change in section 65 of subsequent Electoral Act 2022 and the latest Electoral Act 2026.

The 2022 Act provided for the finality of a returning officer’s decision on ballot validity and result declaration. It also preserves a limited power for INEC to review declarations and returns within seven days.

The 2026 Act retained INEC’s power of review but with a narrower provision focused only on the commission’s power to review a declaration or return where it is satisfied that the declaration was made under duress or knowingly and wilfully contrary to the collation procedures in section 62(4) – (8).

Section 65(a) covers declarations or returns potentially made under duress, while Section 65(b) concerns those allegedly made knowingly and wilfully contrary to Section 62(4)–(8).

That section requires electoral officers to verify accreditation figures and votes against polling-unit records and transmitted data, examine disputed or incorrect results, correct errors where necessary, and announce verified results.

With the general elections less than three months away, the disputed provision and its relevance to the upcoming poll will remain uncertain until the court reaches a decision and, possibly, final reviews by the appellate courts.