The former President of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, has expressed concerns on the increasing involvement of the courts in electoral contests.
Speaking on “Election Petition in the Digital Age: Independence, Evidence, BVAS,” Osigwe stated that Nigeria had become one of the countries with a high number of election petitions across the world.
“I see that Nigeria is one of the countries with the highest number of election petitions, and all because the courts are very frequently involved in determining either the outcome or who won,” he said.
Osigwe recalled that a judge had previously described the development as the “judicialisation of the electoral process,” stressing that the entire gamut of electoral management should be reviewed to provide for free, fair, credible elections.
He said the way elections are conducted have unfortunately provided situations where disputes that originate during party primaries or polling units, have increasingly moved to the courtrooms, forcing judges to become key actors in determining the political fate of candidates.
“All too often, the courts are merely called in to give direction on issues of procedure and at the end, they declare a winner of that election, unfortunately,” he said.
According to him, difficulties with proving alleged electoral violations due to the bumps placed , the manner in which elections are conducted and the limited time available to petitioners to establish their cases have combined to make election litigation increasingly complicated.
Osigwe also questioned aspects of the evidential framework governing election petitions, particularly where technologies such as the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV) are involved.
He argued that technologies introduced to improve electoral transparency should not create additional obstacles for candidates seeking to establish what happened at polling units.
“Technology,” he maintained, “should make elections more transparent rather than make it harder for petitioners to prove what happened at polling units.”
He also questioned the treatment of subpoenaed evidence, particularly documents that petitioners may not have been able to obtain before filing their cases.
On IReV, Osigwe argued that the platform should receive meaningful evidential recognition in election litigation, even if it is not treated as the primary evidence of election results.
He further raised concerns about proposed legal provisions which, according to him, could prevent non-compliance with INEC regulations and guidelines from constituting grounds for challenging an election.
He argued that where the electoral commission is empowered to make regulations and guidelines, compliance with those rules should have consequences for the credibility of the electoral process.
The central question, he said, was whether a person should be declared the winner of an election when there are unresolved questions about whether the process leading to that declaration complied with established rules.
Osigwe also questioned the familiar political expression, “Go to court,” often directed at candidates who reject disputed election outcomes.
He said the expression raised questions about the level of confidence political actors have in the electoral justice system and the effectiveness of judicial redress.
The former NBA president also raised concerns about public perceptions of corruption within the judiciary, while making clear that he was not personally endorsing allegations of bribery against judges.
He said the widespread perception that litigants might have to pay for favourable judicial outcomes was itself damaging to public confidence in the justice system.
According to him, the issue is particularly sensitive because the judiciary represents the final institutional avenue for candidates and citizens who believe an election has been conducted improperly.
He warned that if citizens lose confidence in that avenue, the consequences could extend beyond individual election petitions to the legitimacy of the democratic process.
Osigwe also questioned public confidence in the independence of the electoral commission, particularly the process through which its officials are appointed.
He said concerns about the independence of the electoral umpire could affect perceptions of election results even before disputes reach the courts.
“The concern is not merely institutional. Where the electoral umpire is perceived as lacking independence, the credibility of election results can be affected even before disputes reach the courts,” he said.
He added that this could increase the likelihood of litigation and place additional pressure on the judiciary.
On his part, political economist Pat Utomi broadened the discussion, warning that weaknesses in the electoral system could have consequences beyond elections and ultimately affect the stability of the country.
Utomi said elections were essential to legitimising government and building strong institutions.
