RESTRICTION ON POST PRIMARY CROSS CARPETING: IMPLICATIONS ON FREEDOM OF ASSOCIATION IN NIGERIA

Abstract

The passage into law of the Electoral Act 2026 marked a departure from the manner in which political parties were regulated, party membership and nomination of candidates conducted in Nigeria. Specifically, section 77 provided that political parties shall be required to have their membership registers digitized and shall deliver same to the Independent National Electoral Commission (INEC) at least 21 days to the date of the conduct of the party’s primaries, congresses or conventions. Section 77(5) and 77(6), as originally enacted, provide that no person whose name is not listed on the register to be delivered to the Independent National Electoral Commission shall take part in the party’s primaries and shall only make use of the register to be delivered to INEC and no other register. Though the Act does not explicitly prohibit post-primary carpet crossing, by necessary implication the provisions substantially restrict such activities. The paper adopted the doctrinal research methodology and analysed whether such prohibitions are consistent with the constitutional right to freedom of association contained in section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), constitutional recognition of political parties under sections 221 to 229 and other relevant international legal instruments. Based on its findings, it contended that the State has the constitutional right to regulate political parties to ensure internal democracy and curb the practice of opportunism during elections. It further contended, that Section 77(5) and 77(6) of the Electoral Act 2026 did not generally prohibit post-primary carpet crossing but rather introduced a membership register scheme which may render late defection virtually impossible for an aspirant to secure valid nomination from another party. The paper concluded that the regulatory powers of the state must be limited by its constitutional powers and should not be such as to constitute a substantive restriction not authorised by the Constitution