The Electoral Act and certificate forgery [OPINION]

By Simon Kolawole

You must have heard that the Electoral Act, 2026 (EA 2026) has removed certificate forgery as the basis to challenge the outcome of an election at the tribunal. Someone drew my attention to it a while ago and my first instinct was to doubt it. You cannot blame me. My training as a journalist — both in the classroom and on the job — is to be cautious, or even sceptical, with unsolicited information until proven true. Off the top of my head, my response was that the 1999 Constitution already lists certificate forgery as a ground for disqualification. An act of parliament can never override the constitution. We don’t need to have a law degree to understand this basic fact.

If I wanted to ignore the claim after doing some basic reading of the EA 2026 and the constitution, I couldn’t. I started seeing disturbing reports by respected newspapers and angry comments by commentators and activists about the issue. That was when I decided to take it more seriously, at least for my own education. I like to call myself a Berean journalist, styled after the Berean Christians in the Bible who always diligently searched the scriptures to verify the teachings of Paul and Silas. They didn’t simply swallow everything head, thorax and abdomen — or, if you will, hook, line and sinker. In this world where the new order is information and disinformation, you can’t be too careful.

However, I told myself there is no smoke without fire — just that the alarm can go off at times based on a false trigger or legitimate smoke. I spent hours reading the 1999 Constitution, dating back to the various amendments since 2011. I read the 2022 Electoral Act and compared the provisions with the 2026 version, which was passed by the parliament and signed into law by President Bola Tinubu last month. I also sought the opinion of a senior lawyer who is versed in matters of this nature. I have decided to share the findings of my self-appointed, one-man investigative panel in this article. The long and short of it is that Nigerians are entitled to cynicism and hysteria. It is a low-trust society.

The provision in contention is section 138 of EA 2026 which states: “(1) An election may be questioned on the grounds that the— (a) election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; or (b) respondent was not duly elected by majority of lawful votes cast at the election. (2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.” Can you see anything? You can’t? That is exactly the problem: something is actually missing there.

We now go back to section 134 of EA 2022, its predecessor, which says: “(1) An election may be questioned on any of the following grounds— (a) a person whose election is questioned was, at the time of the election, not qualified to contest the election.” This old provision meant if you presented a forged certificate, it could be a basis for election petition. But there are also requirements about age, citizenship, education, criminal record, and political party membership. If you do not fulfil the requirements, or qualifications, you cannot be a candidate. If you are nominated, your candidature is invalid. Why then is the narrow focus on certificate forgery? We shall come back to that shortly.

Let me quickly say this: a narrow reading of laws is commonplace in our public discourse. Anywhere in the world, the provisions of a law are not interpreted singly or in isolation. They are interpreted through joint reading with other laws and judicial pronouncements, known as “case laws”. In the same EA 2026, section 85 says: “A political party shall not impose nomination, qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution.” Please come with me.

Section 137 (1) of the 1999 Constitution states expressly: “A person shall not be qualified for election to the office of President if – (i) he has presented a forged certificate to the Independent National Electoral Commission.” Section 85 of the EA 2026 already refers to this constitutional provision which makes certificate forgery a ground for disqualification. Repeating it in an EA is a waste of time, paper and ink. The courts are not so dumb to say because forgery is not mentioned in an EA, then the constitution is void. Sections 106(1)(h), 107 (1) (h) and 182(1)(i) of the constitution list certificate forgery as basis for disqualification in different categories. And the constitution supersedes the EA.

But why was section 134 (1) (a) of EA 2022 not retained, nevertheless, to provide for post-election litigation? That is left to the national assembly to explain. We have been beaten many times and we have earned the right to be suspicious of every move by our political leaders. One explanation I have heard is that post-election litigation must be related to the actual conduct of the election and not a pre-election matter on qualifications. That is, the parties must screen and pre-qualify candidates, and those who want to point out forgery must do so in a court of law before election day so that petitions will be limited to the actual voting. It is possible there are other reasons. I don’t know.

Back to the question: why did the whistle blowers focus on only “certificate forgery” in their outrage over EA 2026? Why did they not raise the alarm on other aspects of “qualifications” — such as age and citizenship — that may, at least theoretically, be affected by the amendment? Even so, I am baffled that the objection to the amendment is being raised long after the passage of the bill. Were we sleeping? My sense is that some people want to re-litigate the Chicago certificate affair involving Tinubu, the likely APC presidential candidate in 2027. This matter was litigated all the way to the Supreme Court and dispensed with after the 2023 elections. We are in for Season 2, I imagine.