When law is not law: Paucity of legitimacy of the Electoral Act 2026
“A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes–will find that with small men no great thing can really be accomplished.” – J S Mill About three months ago, a friend sent me a text saying that, Trump, T-Pain and Turji have […]
“A state which dwarfs its men, in order that they may be more docile instruments in its hands even for beneficial purposes–will find that with small men no great thing can really be accomplished.” – J S Mill
About three months ago, a friend sent me a text saying that, Trump, T-Pain and Turji have got something in common; one does it at international level, another at national level and the other at the forest level. At first, I dismissed this as at best, simplistic and at worst, pedestrian. But three events made me to reflect and return to this text message. One, seeing the way the Electoral Act 2026 was bamboozled, passed and signed into law, all in barely 48 hours. Two, seeing how the FCT elections were conducted, especially the boast of the minister on the eve of the elections, the curfew, the electricity black out and how he was moving from one polling station to the other with a squad of security personnel on election day. Three, seeing how, the day after the elections, the president praised and thanked the FCT minister over his “performance” in the elections. On reflection I realised that my friend may well be right, a steak of banditry seems to run through all the three of them.
Let us start with law making. When constitutions entrust parliaments with the heavy responsibility of law making, they always lay bare the purposes, processes and procedures to ensure that the public interest is supreme and properly secure. In our constitution, Section 4(2), the purpose is clearly stated: “The National Assembly shall have power to make laws for the peace, order and good government of the Federation”. With the purpose made clear, processes and procedures are designed to ensure that parliamentarians do not sit in their chambers to write what they like. The constitution restricts the National Assembly, so that laws enacted must remain within the pale of the constitution. In other words, parliamentary power is not absolute; it must operate within the limits of the constitution, which prohibits retroactive laws or those that infringe on fundamental rights. Any law which is inconsistent with the constitution will be invalid to the extent of its inconsistency.
In many climes, to uphold this sanctity, courts may review Acts of Parliament to ensure they comply with constitutional, procedural, and substantive requirements. There are other restrictions placed on parliaments, section 8 of our constitution for example, restricts the National Assembly from ousting the jurisdiction of any court of law. In the words of the constitution, “Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. Section 9 of the constitution prohibits retroactive laws. All these are safeguards against possible manipulations by members of the National Assembly, or their accomplices in the executive.
To gain the trust of the people, without which laws enacted would not be effective, parliaments over the years have developed measures to ensure that the legislature, which is there to represent the people, reflect the views of the people in making laws. In law making, just like in constitution making, the processes and procedures are more important than the product itself. This is because, just as, it is people’s participation and the procedural rigour which confers sanctity and legitimacy to constitutions, so also the laws of parliament. The first, second and third reading of bills were designed to ensure that bills are not done in secrecy. While the first reading announces the arrival of the bill, the second reading opens debate on the bill and if found worthy, committed to the relevant committee(s). Part of the responsibility of committees is to organise public hearing to allow public participation in law making. At the third reading the ‘committee of the whole’ will take the bill clause by clause, voting to pass every clause at a time. It is the quality of these procedures that confers sanctity and legitimacy to the laws passed in parliaments. So, when a law fails to meet the standard procedures and processes, it also fails to measure up to the status of a law, even if it is eventually accented by a president.
In the history of parliaments there were times when parliaments went ahead to enact laws to protect the interests of the law makers, but not without consequences. One of the most cited examples is the British parliament in the 18th century, to quote an online source, “The UK House of Commons: In the 18th century, the British Parliament was viewed by many as an assembly of landowners, operating under a system of patronage and corruption rather than democratic representation, leading to significant crises of legitimacy.” The parliament enacted a law known as the ‘bloody code’, a death penalty for those who encroach on the properties of the rich. The law was perceived to serve the interests of the corrupt landowners and harsh on the poor citizens. Invariably this law was not implemented as the jury refuse to sentence the victims and the judges commuted the death sentence to prison terms. So, the law failed even as it was legally passed and therefore a bona fide act of parliament.
Another example, still in the 18th century, was more serious and more consequential. This was when the British Parliament passed the Sugar Act of 1764 and the following year, 1765 followed it by the Stamp Act, both are cruel tax laws, which were aggressively implemented in the American colony. Precisely because the parliament did not listen to the public and because they thought once a law was passed in parliament the deal was done, it proceeded to implement it regardless. It was this reckless decision which provoked the famous protest known as the ‘Boston Tea Party’, which triggered series of resistance and riots, triggering the American Revolution, ending up 10 years later with the American independence in 1776. The famous maxim ‘No Taxation without Representation’ started here. So, Britain ended up losing the colony and suffering the humiliation, all because they could not realise that a law is only a law when the citizens perceive it to be so. That public perception and acceptance is what is called legitimacy. Any legislation which lacks legitimacy ends up where it deserves to be, the dustbin; too often, it provokes anger and indignation, eroding trust and culminating into anarchy and in some cases revolutions.
There is yet another example, which Nigerians should find interesting, the Great Reform Act of 1832 in Britain. Reading from an online British archives source: “In 1832, Parliament passed a law that changed the British electoral system. It was known as the Great Reform Act, which basically gave the vote to middle class men, leaving working men disappointed. The Reform Act became law in response to years of criticism of the electoral system from those outside and inside Parliament. Elections in Britain were neither fair nor representative. In these ‘rotten boroughs’, with few voters and no secret ballot, it was easy for those standing for election to buy votes. Industrial towns like Manchester or Birmingham, which had grown during the previous 80 years, had no Members of Parliament to represent them. In 1831, the House of Commons passed a Reform Bill, but the House of Lords, dominated by the Tory party, defeated it. This was followed by riots and serious disturbances in London, Birmingham, Derby, Nottingham, Leicester, Yeovil, Sherborne, Exeter and Bristol.” The consequences of exclusion have always been resentment, which fuels conflicts.
Nearer home, the draconian laws of Yunfa, the last king of Gobir (1801-1808), was the last straw which broke the camel’s back. He tried to outlaw the Sharia, which had become popular; and sent his army to invade Abdussalam of Gimbana, believing that he had the might to crush any resistance. The youth of Degel organised and ambushed his army, releasing Abdussalam. Yunfa then threatened to invade the university town of Degel, but Shehu Usman intervened by calling for Hijra, (emigration). The chain of events culminated into the revolution, which swept not only Yunfa’s Gobir, but many of the Hausa States, creating the Sokoto Caliphate. Too often powerful people cannot see the limits of their powers, especially when surrounded by sycophants and praise singers. Examples of such folly abound in history, but space constraints will not allow for more, at least for now.
The lessons from history should be not be difficult to grasp. “When legislative bodies fail to represent the public, operate with excessive secrecy, or when laws are dictated by political expediency rather than established legal norms” then laws lose their legitimacy and once they lose legitimacy they lose their efficacy and their worth. It is also clear that implementing laws that lack public trust is not only problematic but it is risky, it can trigger something bigger that can consume the architects of the fraud. History repeats itself only when it is ignored. Those who ignore the lessons of history are bound to keep repeating human folly.
Let us now look at the product of the 2026 Electoral Act itself. There are nearly a dozen areas of contention, and experts have made a lot of commentaries on them, but three of these can be sufficient to demonstrate the subterfuge of the powerful. First the electronic transmission of results. This was a simple matter since it was already there in the previous law without the word ‘mandatory’. The demand to make it mandatory arose from the litigations of the 2023 general elections, when the court found a way round it, pointing to the absence of the word mandatory as an alibi. The public hearings had a resounding demand for it, the House version of the law had already included the word “mandatory transmission’’ in real time and INEC had at the public hearing recommended it and assured everybody of its capacity to deliver on this provision. So, who really has a problem with it? Apparently, the ruling party, fearing that it has not delivered on its campaign promises, worried that allowing such a transparent provision will narrow its chances for rigging. So, it apparently connived with the leadership of the Senate to remove the provision and when all eyes were on them, they decided to dilute it by adding a proviso that undermines it and creates ambiguity.
The other provision was the funding of INEC which, in the older version of the law, funding was to be done one year to the election time, this time it was made shorter by six months. Even with the one year provision, INEC struggles to deliver because a lot of the sensitive materials are things you can’t buy off the shelf, they have to be ordered, well ahead of time. If this is not an attempt to sabotage the election, what is it? The third issue is as baffling as it is embarrassing: the removal of the criminalisation of the forgery of certificate. Nigerians are all too aware that the certificate of many leading politicians are suspect, so for these same people to remove a whole section criminalising the forgery of certificates, is to confirm all our suspicions. We don’t need to ask what exactly is wrong with the earlier provision. We only need to ask, who are the beneficiaries of this provision, to know who did it and for what purpose. We must not fail to see what is at play here: that we are being ruled by a gang of certificate forgers, who are not ashamed to show their hands in manipulating laws to protect their interest.
Before we conclude, we should take a moment to peep into the chambers of the National Assembly, to catch a glance at the thuggery, or is it banditry, of the leaders of the National Assembly as they railroaded the 2026 electoral act without due regards to the standard rules and procedures of the parliament. In civilised parliaments around the world, voting is electronic, this makes it transparent, accurate and accountable. Records of pattern of voting of every member of senator can always be retrived to show to respective constituencies and the world, the way the legislators represented their constituents. But electronic voting has always been avoided, again because it doesn’t lend itself to rigging. In both chambers we saw the presiding officers rushing through the ‘clause by clause’ consideration, without allowing their colleagues to vote on the clauses, as established by parliamentary rules and procedure, even when their colleagues raised their voices. The cameras caught the presiding officers busy hitting the gavel, against all parliamentary rules and procedures, without giving their colleagues a chance. The cameras captured the leadership of the National Assembly stealing the votes of their colleagues, in real time, without conscience or compunction. In our short parliamentary history, this level of recklessness and irresponsibility is unprecedented. No wonder, their frustrated colleagues walked out and were shouting “onle!” “onle!”( thieves!), for the whole world to see. How can citizens trust anything they say or do? With this kind of leadership, how can Nigeria be respected?
The Electoral Act 2026 may be a law in the eyes of the law, but it is not a law in the eyes of the people. The people have been shut out, by people who ostensibly are their representatives in the National Assembly. When they came to the National Assembly to protest, they were tear-gassed. A law is not a law when it fails to measure up the standards of parliamentary process and procedure. A law is not a law when it was clearly engineered to serve the political interest of the powerful. A law is not a law when it ignored the views of citizens with impunity. The 2026 Electoral Act may be an act of parliament, but it is also an act of shamelessness, caught by cameras for everyone to see. The 2026 Electoral Act may be an act of parliament, but it also an act of disgrace to the leadership of tenth Nigerian legislature. The 2026 Electoral Act may be an act of parliament, but it also an act of thuggery, recklessness and irresponsibility of political leaders of the ruling party. Experts have said that the 2026 Electoral Act, has taken us 10 years back in terms of electoral progress. What the experts are saying is that the 2026 Electoral Act, represents retrogression not progress. Ironically it is the handcraft of people who claim to be progressives. What a ruling party! What a mess! What a pity!
So, what to do? Some would say that they have done their worst and have given us a fate accompli. Perhaps not quite. As the old line goes, ‘it is not yet over, until it is over’. Nigerian youths, whose future is under threat, must begin to organise to meet them at their own level. Let them not underestimate their greed for power and their desperation to remain in office. For us who are no longer youths, we have the advantage of our age and experience. Yes, we are all infuriated and angry, but we must not lose our cool, we must harvest this anger and channel it constructively. We must not waste time agonising, we must start organising. This is not the place to discuss what we can do, but there is a lot that we can do. We must have the foresight to rise above personal interests, for what is at stake is not personal ambitions of politicians, it is the country itself that we want salvage from the hands of unscrupulous, self-centered elite who believe that it is their turn to destroy our country. We must ensure synergy and coordination for us to succeed.
Meanwhile let us console ourselves with the words of John Stuart Mill when he said:
“It is better to be a human being dissatisfied than a pig satisfied; better to be Socrates dissatisfied than a fool satisfied. And if the fool, or the pig, is of a different opinion, it is only because they only know their own side of the question.”
Bugaje resides in Abuja