Afam Osigwe: Courts Undermine Nigeria Elections Through Judicialisation

• Mazi Afam Osigwe (SAN) criticized the "judicialisation of Nigeria’s electoral process," stating courts are usurping voters' power.
• He highlighted that politicians increasingly rely on election tribunals and courts for victories, rather than winning voter support.
• Osigwe pointed to court decisions on BVAS, which mandate the physical transport of machines as primary evidence, as undermining electoral innovations.
• He attributed declining voter turnout to a belief that votes don't determine outcomes, exacerbated by political exploitation and alleged judicial corruption.
• The former NBA president warned that without significant electoral and legal reforms, Nigerians could lose further confidence in democracy, leaving election outcomes to the courts.

His stark warning was that without fundamental Nigerian electoral system reform and a reevaluation of the legal framework, voters risk losing further faith in democratic processes.

Mazi Afam Osigwe (SAN), the immediate past President of the Nigerian Bar Association, recently voiced strong criticisms regarding the integrity of Nigeria's electoral system. Speaking in Enugu at the 22nd Nigeria Guild of Editors Conference, Osigwe accused the nation's courts of progressively encroaching upon the fundamental right of citizens to elect their representatives. He specifically highlighted what he termed the "judicialisation of Nigeria’s electoral process," arguing that controversial legal technicalities are increasingly shifting the power to determine election outcomes away from the electorate.

The former NBA president underscored the practical difficulties faced in Nigeria election petitions courts, noting that the country records one of the highest volumes of such petitions globally. This extensive litigation is further complicated by significant delays within the judicial process, which prolong the resolution of electoral disputes. A key point of contention for Osigwe centered on the legal treatment of technological innovations designed to enhance transparency, specifically the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IREV).

He argued that certain BVAS INEC portal court decisions have effectively undermined the intended impact of these systems. For instance, courts have ruled that the BVAS machine itself constitutes the primary evidence, rather than its printouts. This interpretation imposes a substantial logistical burden, requiring the physical transportation of BVAS devices from every polling unit to court within stringent timeframes, thereby creating an additional hurdle for petitioners seeking to prove electoral malpractice.

Beyond the courtroom, Osigwe linked the declining voter turnout in Nigeria to a growing public skepticism that their ballots genuinely influence election results. He articulated a widespread belief among citizens that "miracles happen" between polling units and collation centers, particularly during the night, leading many to question the purpose of voting. This disillusionment, he asserted, is exploited by politicians who resort to offering inducements like money, salt, and rice to voters, alongside the recruitment of thugs during election periods.

Further criticisms were directed at state electoral commissions, which Osigwe alleged routinely ensure victories for ruling parties, sometimes even announcing results before ballot papers have been been fully processed. He also condemned the culture of extensive post-election litigation, stating that it severely damages public confidence in the judiciary. Osigwe did not shy away from alleging that some judges have been implicated in bribery scandals and advocated for pre-election matters to be deemed non-justiciable. Drawing parallels with Chinua Achebe’s "The Trouble with Nigeria," he attributed the nation's persistent political challenges to a pervasive leadership failure across society.

Osigwe lamented that despite Nigeria gaining independence 64 years ago, the nation continues to offer excuses for its electoral shortcomings. He pointed out that this protracted state of affairs primarily benefits lawyers, who become wealthy through endless litigation, and corrupt judges, who grow richer. His stark warning was that without fundamental Nigerian electoral system reform and a reevaluation of the legal framework, voters risk losing further faith in democratic processes.

Should this trend continue, the determination of election outcomes could increasingly be left to the courts, rather than reflecting the will of the people expressed through their votes. The ongoing electoral process judicialisation Nigeria presents a critical challenge that demands urgent attention to restore public trust and ensure the credibility of future elections.

Lawyers advising on Nigerian election petitions should be aware of the ongoing criticisms regarding judicial overreach and the practical challenges of proving non-compliance, particularly concerning the admissibility and handling of BVAS evidence, as these issues continue to shape electoral litigation strategy and outcomes.

Source: Original reporting via Punch Newspaper