Section 77(5) of the Electoral Act 2026: Can a Candidate Whose Name Is Not on the Party Register Still Contest?

Section 77 should be read as one scheme, not as isolated subsections. A party must keep a digital register of its members (subsection 2) and submit it to INEC at least 21 days before a primary, congress or convention (subsection 4). Only persons whose names appear in that submitted register may vote or be voted for (subsection 5). The party may not substitute another register (subsection 6). And a party that fails to submit its register is not eligible to field a candidate (subsection 7).

Put simply, the register is the party's guest list, and it cannot be rewritten on the night of the event.

The Court anchored its reasoning in Section 228 of the Constitution, which empowers the National Assembly to make laws ensuring internal democracy within political parties, including rules on the conduct of primaries. The Supreme Court found that Section 77(5) to (7) falls within that power. The Court of Appeal had declared these provisions unconstitutional, and the Supreme Court restored them.

The consequence is that "internal affairs of the party" is no longer a blanket answer to every statutory requirement governing primaries.

The argument before the Court was that a party's failure to comply with Section 77 automatically disqualifies each of its members from the general election. The Court rejected that. It held that Section 77 does not expressly impose a personal disqualification on an individual, and it distinguished two things:

Disqualification concerns the individual: does he meet the constitutional and statutory requirements for the office?

Exclusion concerns an impediment elsewhere in the process, such as the party's ineligibility to field a candidate under Section 77(7).

That is the extent of the holding. The Court did not say that a person absent from the register may take part in a primary, and it did not say a party may ignore Section 77(5) and nominate whomever it pleases.

Sections 77(5) and 77(7) are often confused.

Section 77(5) answers: who may participate in the primary? Only persons on the submitted register.

Section 77(7) answers: what happens to a party that fails to submit its register on time? It cannot field a candidate at all.

If Candidate X's name is missing from a register that the party properly submitted, the problem is Section 77(5): he was not eligible to be voted for. If the party never submitted a register in time, the problem is Section 77(7), and it is the party that is affected.

In my view, no. Section 77(5) is not a private arrangement between a party and its members. It is a statutory requirement made under a constitutional power. A party cannot cure the defect by a resolution of its executive committee, nor by saying the candidate has since joined the party.

Take a simple example. A party submits its register on 1 January for a primary on 22 January. X is not on it. On 20 January, the executive resolves to let him contest because he has now become a member. He wins. Whatever his general membership status, the statutory question remains unanswered: was his name in the register submitted to INEC? If not, he was not eligible to be voted for at that primary.

What follows when such a person wins and is presented to INEC as the party's candidate? The Supreme Court did not finally resolve this, and it will be settled in future cases on their own facts. But the Court's reasoning points to how the question should be framed. It is less a matter of whether X is personally disqualified, and more a matter of whether the nomination itself is legally sustainable.

It is therefore a fortified contention to submit that a candidate was ineligible to participate in the primary under Section 77(5), and the party's decision to field and nominate him raises a question as to the validity of the nomination process under the Electoral Act. The relief sought must then follow the applicable statutory framework and the facts of the case.

The decision should be read as follows: a person not on the submitted register cannot lawfully be treated as eligible to vote or be voted for at the primary; a party cannot cure this by internal consent or by using a different register; participation contrary to Section 77(5) does not, without more, make a person personally disqualified from the general election; and where such a person wins and is nominated, the issue becomes the validity of the nomination and the consequences of the party's non-compliance.

The judgment strengthens the register as an instrument of internal party democracy. Political parties have not regained an unregulated domain, and Section 77 has not become optional. The Constitution allows the legislature to regulate primaries, and the consequence of non-compliance must be traced to the particular provision breached. As the 2027 cycle approaches, parties and aspirants would do well to check the register before they check the crowd.

This article is for general information and does not constitute legal advice. Specific situations should be reviewed by a qualified legal practitioner.