Courts Should Not Replace Voters In Determining Election Outcomes—Osigwe

Former President of the Nigerian Bar Association (NBA), Afam Osigwe, SAN, has raised concerns over the growing reliance on courts to determine the outcome of elections in Nigeria.

Osigwe said Nigeria is among countries with a high number of election petitions, arguing that the increasing involvement of the judiciary in deciding electoral disputes amounts to a growing “judicialization of the electoral process.”

He made the remarks on Thursday while presenting a paper titled, “Election Petition in the Digital Age: Independence, Evidence, BVAS,” at the 22nd Nigeria Guild of Editors Conference in Enugu.

According to him, courts are increasingly being called upon to determine who won elections, rather than merely resolving disputes arising from the electoral process. “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,” Osigwe said.

He said the situation was partly driven by the difficulty of proving electoral malpractice and non-compliance with electoral laws within the limited period allowed for challenging election results.
Osigwe said the manner in which elections are conducted has also contributed to the increasing dependence on litigation.

He noted that the development could undermine citizens’ confidence in the electoral process, particularly where voters believe their ballots may ultimately be displaced by court decisions.

The senior lawyer also raised concerns about violence, voter suppression, vote-buying and the recruitment of youths for electoral violence, saying such practices could further weaken public confidence in elections.

On electoral technology, Osigwe traced the evolution from smart card readers introduced in 2015 to the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV).

He, however, questioned some of the evidentiary requirements imposed on petitioners seeking to challenge election results, particularly in cases involving BVAS records.

Osigwe argued that technologies introduced to improve transparency should not become additional obstacles for litigants seeking to establish alleged electoral violations.

He also called for greater evidential recognition of IReV in election litigation, even if the platform is not treated as the primary evidence of election results.
The former NBA president further criticised the treatment of subpoenaed evidence in some election petitions, arguing that judicial interpretations could make it difficult for petitioners to obtain documents they could not access before filing their cases.

Osigwe also questioned the independence of the Independent National Electoral Commission (INEC), saying the process through which members of the commission are appointed could affect public confidence in its autonomy.

He argued that electoral reforms should ensure that voters, rather than prolonged litigation, remain at the centre of determining who governs them.
The senior lawyer also criticised the popular phrase, “go to court,” often used after disputed elections, saying it could create an impression that political actors are confident electoral challenges will not succeed.

He called for reforms capable of strengthening Nigeria’s electoral and judicial systems and restoring public confidence in the democratic process.

Osigwe said Nigeria should stop making excuses for weaknesses in its electoral and judicial institutions and instead pursue reforms that would ensure that election results reflect the choices made by voters.