…Courts increasingly determining election outcomes
ENUGU — Former President of the Nigerian Bar Association, NBA, Chief Afam Osigwe, SAN, has said Nigeria is among the countries with the highest number of election petitions, attributing the development to the increasing involvement of the courts in determining electoral outcomes
Osigwe stated this while speaking at the 22nd Nigeria Guild of Editors Conference held at the International Conference Centre, ICC, Enugu
Speaking on “Election Petition in the Digital Age: Independence, Evidence, BVAS,” he expressed concern over the growing role of the judiciary in determining who represents Nigerians after elections
According to him, the difficulty of proving alleged electoral malpractice and non-compliance with electoral laws has increasingly pushed disputes arising from elections before the courts
He said: “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
“And all too often, the courts are merely called in to give direction on issues of procedure”
Osigwe said a judge had previously described the development as “the judicialization of the electoral process,” arguing that the courts had gradually assumed a role that should principally belong to voters
He said the manner in which elections were conducted, coupled with the difficulty of establishing electoral violations within the limited period allowed for election petitions, had contributed to the growing dependence on litigation
The former NBA president also questioned the independence of the Independent National Electoral Commission, INEC, saying the process of appointing members of the commission could affect public confidence in its autonomy
He linked declining voter participation partly to the perception among citizens that their votes might not ultimately determine electoral outcomes
Osigwe also raised concerns about violence, voter suppression, inducement of voters and the recruitment of youths for electoral violence, saying such practices could further undermine confidence in the electoral process
On the deployment of technology in elections, he recalled the introduction of smart card readers in 2015, followed by the Bimodal Voter Accreditation System, BVAS, and the INEC Result Viewing Portal, IReV
He, however, expressed concern over the evidentiary requirements imposed on petitioners seeking to challenge election results, particularly where BVAS records are involved
According to him, technological innovations intended to simplify elections and strengthen transparency should not become an additional burden for litigants seeking to establish electoral violations
He also criticised the treatment of subpoenaed evidence in election petitions, arguing that judicial interpretations in some cases had made it difficult for petitioners to obtain documents they could not access before filing their petitions
On IReV, Osigwe said the platform should receive greater evidential recognition in election litigation, even if it was not treated as the primary evidence of election results
He further expressed concern over a proposed provision that would prevent non-compliance with INEC regulations or guidelines from constituting grounds for challenging an election
Osigwe argued that where INEC was constitutionally empowered to make regulations and guidelines for elections, compliance with such subsidiary legislation should have meaningful relevance to the credibility of the electoral process
He said the credibility of elections would be undermined if a person could be declared winner without demonstrating that the process leading to the declaration complied with applicable electoral rules
The senior lawyer also criticised the popular expression “go to court” often used after disputed elections, saying the manner in which it was sometimes used could create the impression that political actors were confident that electoral challenges would not succeed
He further raised concerns about public perception of corruption within the judiciary, while stressing that he was not vouching for allegations of bribery involving judges
According to him, the widespread perception that litigants might have to pay for favourable judicial outcomes was damaging to public confidence in the justice system
Osigwe also disclosed that, while serving as NBA president, he supported the view that pre-election matters should not be justiciable, arguing that political parties should have greater room to determine their candidates through internal processes
He said Nigeria should stop making excuses for why its electoral and judicial systems could not be reformed, stressing the need for institutions capable of restoring public confidence in elections
He said the ultimate objective should be an electoral system in which voters, rather than prolonged litigation, determine who governs them