THE ELECTORAL ACT 2026: PROGRESS, GAPS, AND THE LEGAL LANDSCAPE FOR 2027

INTRODUCTION

On 18 February 2026, President Bola Ahmed Tinubu signed the Electoral Act 2026 into law. The Act repeals and re-enacts the Electoral Act, establishing a new legal framework for the conduct of elections, including Nigeria’s general elections scheduled for 16 January 2027 (presidential and National Assembly) and 6 February 2027 (governorship and state assemblies). This analysis examines the progress the Act represents, identifies the legislative gaps it leaves open, and assesses the legal landscape those gaps create for electoral disputes arising from the 2027 elections.

PROGRESS

The Electoral Act 2026 introduces several provisions of legal significance. Section 60(3) gives statutory recognition to the INEC Result Viewing Portal (IReV) and mandates the electronic transmission of Form EC8A from polling units to that portal, an obligation that did not exist under the 2022 Act, which left the entire transmission process to INEC’s operational discretion. This distinction carries direct jurisprudential consequences. Under the 2022 Act, the Supreme Court held that IReV is a public viewing portal and not a legal collation system, with the result that electronically transmitted results carried no legal weight against manually collated figures. That position is now overridden: election tribunals in 2027 must receive IReV data as admissible evidence and are obligated to engage with it.

Section 47 gives statutory recognition to the Bimodal Voter Accreditation System (BVAS). Section 60(6) creates criminal liability, being six months’ imprisonment or a fine of N500,000, or both, for any presiding officer who wilfully frustrates electronic transmission. Section 3 establishes a dedicated fund for INEC, with disbursement mandated no later than six months before a general election, providing INEC with greater financial independence and planning certainty than was available under the 2022 regime. Section 84(2) mandates direct and consensus primaries as the only permissible modes of candidate selection, removing the indirect primary system and its attendant delegate manipulation from Nigerian electoral practice.

LEGISLATIVE GAPS

The Communication Failure Exception in Section 60(3)

The mandatory transmission obligation in Section 60(3) is qualified by a proviso of significant legal consequence: where electronic transmission fails ‘as a result of communication failure,’ the manually completed Form EC8A becomes the primary source for collation and declaration of results. The Act nowhere defines ‘communication failure.’ It is silent on whether the phrase encompasses complete network absence, intermittent connectivity, server congestion, equipment malfunction, human error, or deliberate interference. This definitional vacuum generates at least three distinct legal problems.

First, it creates an asymmetric evidentiary burden in election petitions. A petitioner challenging the invocation of the manual fallback must effectively prove that no genuine communication failure occurred, a negative proposition that is structurally difficult to establish, particularly where the Act imposes no requirement on presiding officers to document the circumstances of a claimed failure contemporaneously. The absence of mandatory documentation converts what should be an objectively verifiable technical question into one that turns entirely on oral assertion.

Secondly, the Act provides no verification mechanism. It does not specify whether the presiding officer’s subjective determination is legally sufficient to invoke the exception, whether INEC’s technical personnel must independently verify the claim, or whether a collation officer has authority to reject an unsubstantiated assertion of failure. Leaving this question to unguided individual discretion at over 176,000 polling units creates conditions for inconsistent and unreviewable application of a provision that directly determines which result, electronic or manual, governs collation.

Thirdly, although Section 60(6) penalises wilful frustration of transmission, it provides no legal procedure for distinguishing a fabricated claim of communication failure from a genuine one. A presiding officer who asserts failure without documentation faces no formal accountability unless wilfulness is separately established. The penalty provision therefore operates only at the margins, leaving deliberate abuse of the exception effectively unaddressed by the statute.

  Absence of a Time Requirement

Section 60(3) mandates transmission but prescribes no timeframe within which it must occur. A presiding officer is in technical compliance with the statute whether results are uploaded immediately after counting or hours later. This matters because the anti-manipulation logic of electronic transmission depends on the upload occurring whilst polling agents, party representatives, and observers remain present at the polling unit, creating a verifiable link between what was announced and what was uploaded. An upload made after the presiding officer has departed with paper forms cannot be verified by those who witnessed the count. As enacted, the provision reduces electronic transmission from a real-time accountability mechanism to a post-hoc documentation obligation, and the window it was designed to close remains open.

Narrowed Petition Grounds Under Section 138

Section 138(1) of the Electoral Act 2026 limits the grounds on which an election may be questioned to two: that the election was invalid by reason of corrupt practices or non-compliance with the Act’s provisions, or that the respondent was not duly elected by a majority of lawful votes cast at the election. This represents a material departure from Section 134(1) of the 2022 Act, which recognised three grounds, including the additional ground that the person whose election is questioned was, at the time of the election, not qualified to contest. The 2026 Act removes qualification entirely as a cognisable petition ground. The evident legislative intent is to convert qualification into a pre-election matter, that is, a dispute to be resolved before voting commences, not after. On that premise, a party aggrieved by the candidacy of a constitutionally disqualified person must pursue the pre-election route; the tribunal’s jurisdiction will no longer extend to it.

The difficulty is that the pre-election route is structurally incapable of filling the gap. Two constraints converge to produce that outcome. First, Section 88(4) of the 2026 Act prevents any court from halting a primary or general election on account of pending litigation, meaning a constitutionally disqualified candidate may proceed through the entire electoral process while a qualification challenge remains pending and legally unenforceable against it. Second, the constitutional timelines under Section 285 of the 1999 Constitution, being 180 days for first instance judgment, a further 60 days for appellate disposal at the Court of Appeal, and a further 60 days at the Supreme Court where a final appeal lies, yield a cumulative maximum of 300 days from commencement of proceedings to exhaustion of all available appeals, a period that structurally exceeds the 2026 Act’s compressed electoral calendar under which political parties must submit their list of nominated candidates to INEC not later than 120 days before election day pursuant to section 29(1) of the Act. A qualification challenge filed on the day of a primary could therefore remain unresolved well after votes have been cast and a winner declared. Section 138, read against Sections 88(4) and 285, thus produces an accountability gap: qualification disputes are expelled from the post-election tribunal while the pre-election machinery cannot guarantee their resolution before the ballot is held.

THE LEGAL LANDSCAPE FOR 2027

Admissibility and Weight of IReV Evidence

The admissibility of IReV data as evidence in election petitions is now settled by statute. The more contested question will be the weight to be accorded to that data when it conflicts with a manual EC8A invoked under the Section 60(3) proviso. The Act creates a statutory hierarchy in which the manual form is ‘the primary source’ where communication failure is claimed. In such circumstances, IReV data will function as corroborating rather than determinative evidence. Tribunals will face the question of what standard of proof governs a challenge to the invocation of the fallback, a question the Act leaves entirely unanswered and which will require judicial development, most likely producing divergent first-instance decisions before appellate courts establish a consistent standard.

Burden of Proof in Transmission Disputes

The intersection of the undefined communication failure exception with the existing rule that petitioners bear the burden of proof creates a structurally asymmetric litigation environment. Where a presiding officer relies on the fallback and produces a manual EC8A, the petitioner must challenge the basis for that invocation without any statutory obligation on the respondent to have documented the claimed failure. In practice, this may render the Section 60(3) proviso a near-conclusive shield against challenge wherever it is invoked, unless tribunals are prepared to develop an evidential presumption in favour of the electronic record or to impose a reverse burden on the party asserting communication failure. Neither approach is clearly supported by the current statutory text.

INEC’s Regulatory Obligation

The statutory deficiencies in Section 60(3) place an obligation on INEC to fill regulatory gaps through binding operational guidelines. At minimum, INEC must define the conditions that constitute a valid communication failure, specify the documentation a presiding officer must produce to invoke the exception, establish the authority responsible for verifying claims, and prescribe the timeframe within which transmission must be completed after results are announced. Without such regulations, the Act’s ambiguities will be resolved inconsistently across polling units, and the resulting evidentiary fragmentation will generate a volume of post-election litigation that extends uncertainty well beyond election day.

CONCLUSION

The Electoral Act 2026 makes genuine and legally significant progress. The statutory recognition of IReV and BVAS, the mandatory transmission obligation, the criminal accountability provision in Section 60(6), and the dedicated INEC fund collectively create a stronger legal foundation for the 2027 elections than existed under the 2022 Act. The overriding of the Supreme Court’s ruling that IReV is a public viewing portal and not a legal collation system is, in particular, a consequential change to the evidentiary law of election disputes.

The Act’s central structural deficiency, however, is that the mandatory transmission obligation is qualified by an exception whose conditions are undefined, whose invocation is undocumented, and whose adjudication is unprocedured. The absence of a time requirement means the real-time accountability that electronic transmission was designed to provide is not secured by the statute. The reformulation of petition grounds in Section 138 creates a constitutional tension that will require urgent judicial resolution. The combined effect is that the legal weight actually accorded to electronic transmission in 2027 will depend substantially on regulatory action by INEC and on judicial willingness to develop principles that fill the gaps the legislature chose to leave open.