By Sylvester Udemezue
In a 09 April 2026 publication reported by TheNigeriaLawyer, titled ‘“NBA Must Defend Rule of Law” — Okutepa SAN Demands Action on Electoral Act 2026, Kicks Against ₦10m Fine as Intimidation of Lawyers,’ a respected legal practitioner and public affairs analyst, Chief J. S. Okutepa, SAN, expressed concern over what he perceives as a decline in the effectiveness of the legal profession in promoting good governance and accountability, calling on the Nigerian Bar Association (NBA) to more actively defend the rule of law and ensure legislative compliance with constitutional standards. His critique focuses on the Electoral Act 2026, particularly section 138, which provides as follows: “138. (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. (3) Where the court makes a determination that an election is being questioned by a political party or candidate on grounds outside of those provided for under subsection (1), the court shall impose penalties of not less than ₦5,000,000 on the counsel and not less than ₦10,000,000 on the petitioner.”
Chief Okutepa, SAN, argues that these provisions are unconstitutional and detrimental to access to justice. In particular, he objects to the imposition of substantial financial penalties, contending that such sanctions are excessive, intimidatory, and capable of discouraging legitimate electoral challenges, thereby undermining the right to fair hearing. He further contends that the restriction of permissible grounds for election petitions unduly limits the ability of candidates and voters to seek redress, with the potential effect of shielding electoral irregularities from judicial scrutiny and weakening democratic accountability. More broadly, he criticizes what he views as increasing politicization and ethical decline within the legal profession, urging a return to the core standards of the Rules of Professional Conduct and a renewed commitment by both the Bar and the Bench to their role as custodians of justice. He ultimately calls for an urgent review of the Electoral Act 2026, warning that failure to address these concerns may erode public confidence in both the legal system and Nigeria’s democratic process.
With profound respect to the learning, stature, and patriotic interventions of Mr. J. S. Okutepa, SAN, I consider it necessary to respond, respectfully, to his said criticism of section 138 of the Electoral Act, 2026 and, in particular, the sanction regime attached to petitions founded on grounds outside those prescribed by the Act. As highlighted above, Learned Silk Okutepa’s criticism is that the provision is unconstitutional, intimidatory, and injurious to access to justice and fearless advocacy. I wish to start by noting that Chief Okutepa’s concern is not frivolous; whenever the law imposes a personal financial consequence on counsel, serious reflection is warranted. I agree that the Bar must always remain vigilant against any legal regime that may chill genuine advocacy or punish counsel merely for being courageous, unpopular, or innovative. Thus the alarm raised by Chief Okutepa, SAN is understandable. However, with equal respect, I submit that the conclusion that section 138 is, without more, unconstitutional or an impermissible intimidation of lawyers does not sufficiently account for the special constitutional character of election litigation, the text of the Act itself, the long-settled doctrine that election petitions are creatures of statute, and the professional duty of counsel to remain within the bounds of extant law.
The starting point must be the statute as actually published. Section 138(1) of the Electoral Act, 2026 states that an election may be questioned only on two grounds: first, that the election was invalid by reason of corrupt practices or non-compliance with the Act; and second, that the respondent was not duly elected by majority of lawful votes cast. Section 138(2) further clarifies that an act contrary only to an INEC instruction or directive, but not contrary to the Act itself, is not by itself a ground for questioning the election. Section 138(3) then provides that where the court determines that a political party or candidate has questioned an election on grounds outside those in section 138(1), the court shall impose penalties of not less than ₦5,000,000 on counsel and not less than ₦10,000,000 on the petitioner.
That text matters. It means the sanction is not triggered by mere failure, weak advocacy, or even an ultimately unsuccessful petition. It is triggered where the court determines that the petition was brought on grounds outside the statutory grounds the Act recognizes. In other words, the provision is aimed, not at losing litigation, but at a category of incompetent invocation of election-petition jurisdiction as defined by the statute itself.
This distinction is central. Courts impose costs every day. Courts also strike out proceedings for want of jurisdiction every day. Neither costs nor jurisdictional discipline is inherently unconstitutional. The question, therefore, is not whether a lawyer may lose a case without punishment; plainly, that is not the point of section 138(3). The real question is whether the legislature may attach consequences to the invocation of the highly specialized, time-bound machinery of election adjudication on grounds the Act itself does not permit. In my respectful view, that question must be answered against the backdrop of the sui generis nature of election petitions. Section 285 of the Constitution of the Federal Republic of Nigeria, 1999 establishes election tribunals and confers exclusive original jurisdiction over petitions as to whether a person has been duly and validly elected. The Constitution also imposes tight timelines for determining election petitions, reflecting a design of urgency, finality, and democratic stability. Election petitions are therefore not ordinary civil suits in which the court’s jurisdiction may be approached with broad common-law elasticity. They are special proceedings, tightly structured by constitutional purpose and statutory design. That is why Nigerian election law has long been treated as a field of strict compliance, compressed timelines, and limited remedial windows. The Constitution creates the adjudicatory framework; the Electoral Act supplies procedural and substantive content within that framework. Once the lawmaker has expressly defined the grounds on which an election may be challenged, the filing of a petition outside those grounds is not a mere pleading defect. It is an attempt to activate a special jurisdiction on bases that the statute does not recognize. It is here that the argument from access to justice must be carefully handled.
Access to justice is fundamental. But access to justice has never meant access to every procedure on every conceivable ground.
A person has access to the probate court only within probate law; access to judicial review only within public-law thresholds; access to election tribunals only within election-petition law. To say that the legislature has defined the conditions for invoking a specialized jurisdiction is not, without more, to deny access to justice. It is to regulate the legal doorway through which that access must be pursued. Indeed, Chief Okutepa’s comments appears to blend at least two distinct concerns: first, whether section 138 has narrowed the grounds of election petitions too severely; and second, whether the financial sanctions attached to filings outside those grounds are too harsh and capable of inducing fear in counsel. Those are related but different questions. One may legitimately debate the wisdom of narrowing the grounds. But even if that policy debate is open, it does not automatically follow that a sanction for invoking election-petition jurisdiction on non-statutory grounds is unconstitutional. The better analytical approach is to separate the policy wisdom of the grounds from the legal validity of the sanction attached to proceedings brought outside those grounds.
In fairness, there is room for serious debate over the legislative narrowing itself. It’s noteworthy that section 138 of the 2026 Act has omitted some grounds previously familiar in Nigerian election law, including qualification-related challenges such as certificate forgery. That policy choice has attracted criticism from several quarters. The concern is understandable. But once the Act, rightly or wrongly, has spoken in clear terms, counsel do not become free to ignore it in the name of moral outrage. Until set aside by a court of competent jurisdiction or amended by the legislature, the law remains the law. A lawyer may challenge the validity of the section in an appropriate proceeding; what a lawyer should not do is proceed as if the statutory text does not exist.
That brings one to professional ethics. Rule 15 of the Rules of Professional Conduct for Legal Practitioners, 2023 is anchored on representation within the bounds of the law. RPC 15 of the RPC 2023 prohibits a lawyer from advancing a claim unwarranted under existing law except by a good-faith argument for extension, modification, or reversal. The Rules were made by the General Council of the Bar and took effect from 1 January 2024. That ethical framework is important. It does not command timidity. It does not outlaw creativity. It does not reduce advocacy to mechanical conservatism. What it forbids is the knowing advancement of a claim unwarranted under existing law, except on a genuine and intellectually honest invitation to change the law. That means a lawyer who wishes to test section 138 constitutionally must present that challenge as exactly that: a good-faith constitutional challenge to the validity of the provision. What would be professionally unacceptable is to file an election petition on grounds the statute plainly does not permit, while pretending that those grounds are already legally available within the existing election-petition framework. The former is principled law reform litigation; the latter risks being a punishable abuse of the process of a special court, and may well be interpreted as a form of violation of Rule 15 of the RPC 2023 since every violation of the RPC is a form of professional misconduct.
The comparative picture also does not support the broad suggestion that sanctions or strict filtering mechanisms in election-related litigation are alien to democratic systems. In the United Kingdom, election petitions are statutory creatures governed by a highly structured legal regime under the Representation of the People Act 1983. The law requires strict compliance with procedural conditions, including the provision of security for costs, and confines challenges to specified grounds, within defined timelines and before designated courts. Official guidance further underscores the technical and regulated nature of this process, reflecting a system designed to ensure that election disputes are pursued within a tightly controlled statutory framework. In India, election disputes are governed by the Representation of the People Act, 1951, which establishes a detailed, formal, and exclusive statutory framework. Election petitions must be brought on specifically enumerated grounds and determined by designated courts, underscoring that such proceedings are not free-form equitable complaints but strictly regulated statutory processes. The structure of the Act, as reinforced by judicial interpretation, reflects the settled principle that election disputes must be pursued through this special statutory route rather than through generalized collateral proceedings. Further, in the United States, although the procedural context differs from Nigeria’s sui generis election-petition regime, Rule 11 of the Federal Rules of Civil Procedure establishes a clear standard of professional responsibility in litigation. Under Rule 11, every filing constitutes a certification by counsel that it is not made for any improper purpose, that the legal claims are warranted by existing law or supported by a non-frivolous argument for its extension or modification, and that the factual assertions have evidentiary support or are likely to have such support upon reasonable inquiry. Where these obligations are breached, the court may impose appropriate sanctions on counsel, the party, or both, including monetary penalties and cost orders or other measures designed to deter repetition of the offending conduct. The philosophy underpinning Rule 11 is neither punitive nor repressive; it is regulatory and protective, aimed at preserving the integrity of judicial proceedings by ensuring that the courts are not burdened with claims that are legally unsustainable, factually baseless, or advanced for improper purposes. Importantly, Rule 11 does not stifle legitimate advocacy. On the contrary, it expressly accommodates good-faith legal innovation by permitting arguments aimed at extending or modifying existing law. What it prohibits is not bold advocacy, but frivolous or legally unwarranted invocation of judicial process.The American position illustrates a broader and widely accepted legal principle:
the right of access to court is inseparable from the duty of responsible litigation conduct.
In this light, sanction regimes (when properly structured and judiciously applied) are neither aberrations nor instruments of intimidation, and certainly do not constitute any exotic assault on advocacy. Rather, they represent integral components of modern procedural law and form part of the ordinary toolkit by which legal systems safeguard the integrity of adjudication. Their purpose is not to stifle legitimate advocacy, but to regulate the responsible invocation of judicial process, ensuring that the courts are not burdened with abusive, frivolous, or legally unwarranted filings. In doing so, such mechanisms perform a vital balancing function, maintaining equilibrium between the fundamental right of access to justice and the equally compelling necessity of preventing abuse of court process, preserving judicial economy, and upholding public confidence in the administration of justice. None of this is to say that every sanctioning clause is automatically just, wise, or proportionate. That would be too sweeping. A mature and reasonable position must acknowledge the legitimate anxieties behind Chief Okutepa’s intervention. Minimum sanctions of ₦5,000,000 against counsel and ₦10,000,000 against a petitioner are severe. Severity invites scrutiny. Therefore, there is room to ask whether the figures are not excessive, whether the provision should not expressly preserve counsel’s immunity for bona fide constitutional testing, whether sanctions should not be discretionary rather than mandatory, and whether the law should not require a finding of bad faith, recklessness, or gross negligence before personal sanctions are imposed. Those are legitimate reform questions. However, they remain mere reform-questions; they do not, standing alone, establish unconstitutionality.That distinction, again, is crucial. A law may be debatable without being unconstitutional. A sanction may be harsh without being legally void. To strike down section 138(3), one must do more than say it is stern, unpopular, or capable of causing caution in counsel. One must demonstrate a concrete inconsistency with the Constitution.
Chief Mr. Okutepa’s argument invokes concerns bothering on fair hearing and access to justice, but section 138 does not bar petitions as such; it only regulates the grounds upon which an election petition may be brought, and it punishes the invocation of that regime on non-statutory grounds (that’s, grounds not approved by the statute). That is a much narrower proposition than a total denial of access to court. Nor should the Bar lightly embrace the proposition that every statutory penalty touching counsel is an intimidation of lawyers. The legal profession can rightly insist on independence, but independence is not insulation from professional responsibility. Lawyers are ministers in the temple of justice, not merely mouthpieces for every grievance dressed up as law. If the law says an election may be questioned only on specified grounds, a lawyer does not ennoble disobedience by calling it courage. True courage lies in either bringing the petition within the law or forthrightly challenging the law itself through proper constitutional argument.
There is also a deeper institutional concern. Election litigation does not affect only the immediate parties. It affects democratic transitions, public confidence, governmental continuity, and national stability. The compressed timelines for election petitions under the Constitution reflect the public importance of electoral finality. A regime that allows the election-petition window to be clogged with grounds the statute does not recognize would consume scarce adjudicatory time, over-burden respondents and tribunals, and prolong political uncertainty. In that setting, deterrence against plainly incompetent grounds is not necessarily a form of hostility to justice; it may instead be part of efforts at preserving the functional integrity of electoral justice.
What, then, is the most balanced position? In my humble view, it is this: if one objects to the narrowing of election-petition grounds in section 138(1), one should say so openly and advocate amendment. If one believes section 138(3) is unduly harsh, one should argue for proportional recalibration. If one considers the provision unconstitutional, one should mount a direct and disciplined constitutional challenge through a lawsuit. But until the law is changed or invalidated, lawyers should not present petitions on grounds the statute plainly excludes and then characterize the legal consequences as persecution. Fidelity to the rule of law includes fidelity to the law one dislikes, subject always to the right to challenge it through lawful means. Accordingly, with the greatest respect to Mr. Okutepa, SAN, I would respectfully submit the following by way of conclusion:
1. Chief Okutepa’s broader concern for the health of the profession and the rule of law is worthy of serious consideration. The Bar should indeed resist any attempt to turn legal practice into an instrument of political intimidation or judicial capture. That much is unassailable.
2. However, section 138 of the Electoral Act, 2026, is clear in limiting election petitions to two grounds and in attaching minimum sanctions where petitions are brought outside those grounds. That clarity means the debate should be conducted on the footing of the actual statutory text, not on a looser impression of it.
3. There is an important difference between challenging a law and ignoring or violating it. A lawyer may, in good faith, seek extension, modification, reversal, or constitutional invalidation of an existing legal rule. But a lawyer may not ethically proceed as though a plainly extant statutory restriction does not exist. That is where Rule 15 of the RPC becomes especially relevant.
4. Sanctions for abusive, incompetent, or legally unwarranted invocation of specialized judicial process are not unknown to comparative legal systems. Strict statutory control is especially common in election disputes, precisely because such disputes implicate democratic order and institutional legitimacy.
5. The better reform conversation is not to collapse everything into the language of intimidation. It is to ask whether the grounds in section 138(1) are too narrow and whether the minimum sanctions in section 138(3) should be refined, perhaps to better distinguish bad-faith abuse from bona fide constitutional testing. That would be a more sober and useful legislative conversation.
In the end, democracy is not protected by unbounded litigation. It is protected by lawful litigation. The legal profession best serves the rule of law not by treating every statutory limit as an oppression, but by discerning the difference between principled challenge and impermissible overreach. A mature Bar must defend access to justice, yes; but it must also defend jurisdictional discipline, professional candour, and the integrity of electoral adjudication. That is not fear. That is fidelity.
(Respectfully,
Sylvester Udemezue (Udems)
08021365545.
udems@therealityministry.ngo
(09 April 2026)
