OPINION: When Law Starts Protecting Wrong People

…The quiet deletion of Section 134(3) and what it really means for Nigerian democracy

Most Nigerians probably didn’t notice when the National Assembly quietly removed Section 134(3) from the Electoral Act during the 2026 amendments. On the surface, it looked like minor housekeeping. In reality, it was one of the most significant backward steps our electoral law has taken in years.

That small subsection used to give a candidate who actually ran in an election the right to challenge, right there in the election petition, whether his opponent met the basic constitutional qualifications to even stand. Things like age, citizenship, not being an undischarged bankrupt, not having been convicted of an offence involving dishonesty in5 the last ten years, and most importantly, not having presented a forged certificate to INEC.

All of those disqualifications are written plainly in the 1999 Constitution (Sections 65, 66, 106, 107, 131, 137, 177, 182). They are not optional. They are hard conditions for anyone who wants to hold elective office.

The Supreme Court has never minced words on this. In the David Lyon case (2020), the Court threw out an entire governorship ticket because the deputy had tendered forged credentials. Not a single vote cast for them mattered once the forgery was proved. The same principle appeared again in PDP v Degi-Eremienyo (2020): false information on Form CF001 vitiated the whole joint ticket and the runner-up was declared winner.

That used to be the law in practice. Now the door has been narrowed, almost closed, for anyone who actually faced the allegedly unqualified candidate on election day.

After the amendment, only aspirants fighting for a party ticket can challenge qualifications anymore, and only before the election at the Federal High Court under the surviving Section 29(5). Once the general election is over, the people who really have skin in the game, the opposing candidates who lost votes to someone who shouldn’t have been on the ballot, are told by statute: “Sorry, you no longer have standing to raise this.”

That cannot be right.

A candidate who comes second (or third) has far more than an academic interest in whether the winner was constitutionally qualified. If the winner is disqualified, the petitioner usually becomes the winner, automatically. The Supreme Court said as much in Anyanwu v Emmanuel (2025): locus standi exists wherever someone has a real stake and stands to suffer direct injury. Few injuries are more direct than watching an unqualified person take the office you were entitled to win.

Yet the new Section 138 pretends otherwise. It tries to strip candidates of both standing and the right to be heard on perhaps the most important question in any election: “Was this person even allowed to run?”

Section 1(1) and (3) of the Constitution say no other law can override the Constitution. Section 36 guarantees fair hearing. You cannot by ordinary legislation take away a fundamental right that flows from the supremacy clause itself.

Some people defend the change by saying forgery and false information already require proof beyond reasonable doubt, so very few cases ever succeed anyway (see ACN v Lamido 2012 and Okon v PDP 2023). That’s true, but difficulty of proof has never been a justification for abolishing the ground completely. If anything, the sensible thing would have been to improve the section: list the exact constitutional provisions, clarify procedure, keep the burden high, but leave the avenue open.

Instead, the provision vanished.

The result is perverse. It creates an incentive structure in which presenting forged credentials or hiding a disqualifying conviction becomes less risky. If you can get past INEC’s checklist and win the election, the only people who could have challenged you on constitutional grounds are now legally silenced. That is not electoral reform. That is incumbent protection.

It is also discriminatory (Section 42). It gives an unfair advantage to candidates with dodgy certificates or criminal records over those who actually meet the rules. And it breaches the test of good law-making under Section 4(2): laws should promote peace, order and good government, not impunity.

The principle in the Lyon6 and Degi cases is still good law. Constitutional disqualification has not been erased. But without a clear statutory hook in the Electoral Act, tribunals may feel handcuffed. That tension has to be resolved in favour of the Constitution, not against it.

What should happen now?

The National Assembly has already shown it can amend the Act very quickly when it wants to (remember the sudden criminalisation of dual party membership). It should do the same here: bring back , and improve , a provision that says plainly:

“A ground for questioning an election is that the respondent does not meet the qualifications in Sections 65, 106, 131 or 177 of the Constitution or is disqualified under Sections 66, 107, 137 or 182.”

At the same time:

• INEC should be given better tools and time to verify credentials before ballots are printed.
• Criminal prosecution for forgery and perjury should remain available , no one gets immunity just because an election has happened.
• Courts should continue to treat constitutional qualification as a live issue that can affect54 who holds office, not just who was allowed to run.

Democracy is not just about who gets the most votes on election day. It is about who is constitutionally entitled to stand in the first place. When we start deliberately making that question harder to ask after the votes are counted, we are not strengthening democracy , we are quietly dismantling it.

The Constitution still speaks clearly. The question is whether we still have the courage to listen.

Charles Ude, a legal practitioner, author and social critic, can be reached at charlesude2014@gmail.com