By Collins Okeke and Jesujoba Tosu

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.
Concluded.

Okeke is partner and head, governance advisory practice, while Tosu is an associate at Olisa Agbakoba Legal (OAL).