ENUGU, Nigeria — Immediate past President of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, SAN, has identified alleged lack of independence of the Independent National Electoral Commission (INEC), difficult rules of evidence and weaknesses in Nigeria’s electoral laws as major factors undermining the country’s elections.
Osigwe also accused the judiciary of gradually taking over the constitutional role of voters in determining elected representatives through what he described as controversial legal technicalities, warning that procedural bottlenecks and systemic corruption were weakening Nigeria’s democracy.
He spoke at the All Nigeria Editors’ Conference of the Nigerian Guild of Editors (NGE) in Enugu on Thursday, with the theme, “The Ballot, the Media and the Task of Keeping Democracy Alive.”
Osigwe, who was reported by The Guardian to have spoken at the event, described the increasing involvement of courts in determining electoral outcomes as the “judicialisation of the electoral process.”
According to him, Nigeria’s high number of election petitions reflects the extent to which courts are being called upon to determine who won elections.
He said: “The courts have gradually and increasingly usurped the role of the voters in determining the representatives of the people. And I couldn’t have agreed with him more.”
He attributed the development partly to the difficulty of proving electoral malpractice under existing rules of evidence.
The former NBA president also questioned whether electoral technologies such as the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV) were achieving their intended purposes, arguing that their evidentiary status had created fresh challenges in election litigation.
Osigwe said petitioners challenging a state-wide election could, under existing procedures, face the difficulty of producing BVAS-related evidence from numerous polling units despite the strict time limits imposed on election petitions.
He said, “So if you’re challenging state-wide election, and an issue concerns BVAS from every polling unit, you must physically go and carry the BVAS from every polling unit. And yet the court is not a bit hesitant to set time limits.”
He argued that such requirements could undermine the purpose of deploying technology to make elections and subsequent disputes easier to resolve.
Osigwe also criticised the treatment of evidence obtained through subpoenas, particularly in petitions arising from the 2023 presidential election.
According to him, petitioners may be required to file their evidence within 21 days, creating difficulties where documents or testimony are obtained subsequently through subpoenas.
“Why do we call it a subpoena? Why didn’t they say they are your witnesses?” he asked, referring to the presidential election petitions filed by Atiku Abubakar and Peter Obi.
He said the interpretation had reduced the usefulness of subpoenas, particularly where petitioners required documents held by INEC or other public institutions.
On IReV, Osigwe called for greater evidentiary recognition of materials on the portal, even if they were not treated as the primary evidence of an election.
“I’m not saying it should be the primary evidence, but first of all, some recognition should be given to it,” he said.
He also expressed concern over a proposed alteration to the electoral framework which, according to him, could prevent non-compliance with INEC regulations and guidelines from constituting grounds for challenging an election.
He warned that such a provision could create an incentive for politicians to focus on securing electoral declarations rather than ensuring strict compliance with electoral rules.
Osigwe said the popular expression, “Go to court,” had acquired a negative connotation among Nigerians because of growing public suspicion about the electoral justice system.
He said some politicians used the expression in a manner that suggested they were already confident of the outcome of subsequent legal challenges.
INEC independence
On INEC’s independence, Osigwe raised concerns about the process through which members of the commission are appointed.
He also questioned the continued use of ad-hoc electoral officers, including academics, alleging that some officials recruited for election duties had subsequently faced criminal proceedings.
He argued that public confidence in elections would continue to decline if voters believed their votes could be manipulated between polling units and collation centres.
According to him, violence, ethnic profiling, vote buying and the deployment of thugs had also contributed to declining confidence in Nigeria’s electoral process.
Osigwe extended his criticism to State Independent Electoral Commissions, saying ruling parties often record overwhelming victories in local government elections, thereby reinforcing perceptions that the electoral bodies are not sufficiently independent.
He linked the wider crisis to what he described as a failure of leadership, stressing that responsibility did not rest solely with the presidency but also extended to governors, local government chairmen, political parties and other leaders.
He urged editors and journalists to continue scrutinising INEC, the judiciary and political actors, saying the media had a critical responsibility to ensure that votes cast by Nigerians translated into legitimate political mandates.
Responding to a question on concerns that court judgments were no longer delivering justice, Osigwe said such views were partly a matter of perception, noting that the judiciary had also delivered decisions that strengthened Nigeria’s democratic system.
He, however, cautioned against lawyers being used as “tools in the hands of the clients,” saying such conduct could undermine the course of justice and further overburden the courts.
