Mazi Afam Osigwe. Former NBA President speaking on Election Petitions in Digital Age: Independence, Evidence BASED and the Courts
ENUGU — Former President of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, SAN, has raised concerns over the increasing role of the courts in determining electoral outcomes in Nigeria, warning that the judiciary should not gradually replace voters in deciding who represents the people.
Osigwe spoke on Thursday while delivering a presentation titled “Election Petitions in the Digital Age: Independence, Evidence, BVAS and the Courts” at the 22nd Annual All Nigeria Editors Conference in Enugu. The session formed part of the conference’s programme on electoral integrity and democratic governance.
He said the manner in which election petitions are handled, particularly the difficulty of proving electoral non-compliance, had contributed to what he described as the increasing “judicialisation” of Nigeria’s electoral process.
According to him, the situation has created a system where courts are frequently called upon to determine who won elections instead of merely resolving legal disputes arising from the electoral process.
Osigwe said a judge and friend of his had previously described the development as “the judicialization of the electoral process”, arguing that the difficulty of proving electoral wrongdoing had increasingly placed the courts in the position of determining representatives of the people.
“I couldn’t have agreed with him more,” Osigwe said.
He said Nigeria had one of the highest numbers of election petitions, adding that the frequency with which courts are involved in determining electoral outcomes had implications for public confidence in elections.
Voter apathy
Osigwe also linked declining voter participation to the perception among many Nigerians that their votes may not ultimately determine electoral outcomes.
He said some voters were discouraged by concerns over what happens between voting at polling units and the announcement of results at collation centres.
“Many Nigerians do not quite believe that whatever votes they cast matter, or that they count, or that they’re of any consequence,” he said.
According to him, concerns over violence, voter suppression, ethnic profiling and other electoral abuses could further discourage citizens from participating in elections.
He also criticised vote-buying and the recruitment of young people as political thugs, saying politicians sometimes exploit citizens’ economic difficulties to mobilise them for activities that undermine the electoral process.
Osigwe said the cumulative effect was a weakening of public confidence in democratic institutions.
INEC independence
The former NBA president also questioned the practical independence of the Independent National Electoral Commission (INEC), despite its constitutional status.
He said the manner in which electoral officials are appointed, as well as the use of ad-hoc personnel in elections, could create concerns about the commission’s ability to operate independently.
Osigwe also raised concerns about the involvement of academics in election administration, arguing that allegations and convictions involving some electoral personnel had raised questions about the integrity of the system.
He said similar concerns extended to State Independent Electoral Commissions, alleging that ruling parties frequently dominate elections conducted by the bodies.
“Sometimes you’ll be waiting for the ballot papers to arrive, and the results are announced,” he said, questioning how independent such electoral institutions could be perceived to be under such circumstances.
BVAS, IReV and election evidence
Turning to technology, Osigwe said the introduction of electronic tools such as the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV) had raised new questions about the nature and admissibility of electoral evidence.
He recalled the introduction of smart-card readers in 2015 and the subsequent deployment of BVAS, saying the technologies were initially expected to make it easier to establish what occurred at polling units.
However, he said judicial interpretations concerning BVAS evidence had created difficulties for election petitioners, particularly given the strict timelines for filing and determining election cases.
Osigwe also criticised the evidentiary requirements surrounding election petitions, arguing that petitioners could face enormous logistical challenges when required to obtain and present electronic evidence from numerous polling units within limited time.
He questioned how a petitioner could practically obtain certain documents or electronic records where access depended on an order of the court, particularly when the same petitioner was operating under strict statutory timelines.
‘Subpoena has been rendered useless’
The SAN also questioned the treatment of subpoenas in election petition proceedings.
He explained that a subpoena is designed to compel a person to appear before a court, produce documents, give evidence, or do both.
But, according to him, judicial decisions arising from the 2023 presidential election petitions created difficulties where subpoenaed witnesses were expected to have included information and documents in witness statements filed within the statutory period.
Osigwe said such an interpretation could undermine the practical purpose of subpoenas because documents that a petitioner could not independently access might become difficult or impossible to introduce as evidence after the filing deadline.
He also questioned how an INEC official could realistically be expected to prepare a witness statement for a petitioner challenging the commission’s own conduct without creating the appearance of collusion.
IReV should get recognition
On IReV, Osigwe said the portal should receive greater evidentiary recognition in election disputes, even if it was not regarded as the primary source of evidence.
He likened the system to a viewing platform, saying that while it might not necessarily constitute the primary evidence of an election result, information displayed on it should not simply be disregarded.
He also expressed concern over proposals surrounding the 2026 Electoral Act which, according to him, could limit the legal consequences of non-compliance with INEC regulations and guidelines.
Osigwe argued that electoral guidelines made pursuant to statutory authority should have significance in determining whether an election was conducted in accordance with the law.
He said the credibility of an election depended not only on who was eventually declared winner but also on whether the process through which the winner emerged complied with the law.
‘Go to court’ mentality
The lawyer also criticised what he described as the growing political refrain of “go to court” after disputed elections.
He said there was nothing inherently wrong with directing an aggrieved candidate to seek judicial redress, but argued that the expression sometimes carried the implication that the person making it already knew how the case would end.
According to him, repeated reliance on litigation to resolve electoral disputes had dragged the judiciary deeper into political contests and contributed to public suspicion about the courts.
Osigwe said perceptions of corruption within the judiciary, whether established or not, were damaging to public confidence.
He noted that some judges had been disciplined over corruption-related allegations and said such cases contributed to perceptions that judicial decisions in political disputes could be influenced.
He stressed, however, that he was not endorsing such allegations as established facts, but was highlighting the damaging effect of the perception itself.
Calls for electoral reform
Osigwe said Nigeria needed to address structural weaknesses in its electoral system rather than continually rely on litigation to resolve disputes.
He recalled that while serving as NBA president, he supported the position that some pre-election disputes should be resolved internally by political parties rather than being subjected extensively to judicial intervention.
He argued that excessive judicial involvement in political party affairs could further expose the courts to political pressure.
Osigwe said Nigeria should stop making excuses for why electoral reforms could not work, stressing that the country had been independent for decades and should be capable of developing institutions that command public confidence.
He urged editors and journalists to continue scrutinising the electoral process and holding institutions accountable, particularly as Nigeria approaches another major electoral cycle.
