Afam Osigwe: Nigerian Election Judicialisation Threatens Democracy

• Former NBA President Afam Osigwe criticized Nigerian courts for increasingly usurping voters' power in elections through legal technicalities.
• He warned that the "judicialisation of the electoral process" undermines democracy and leads politicians to rely on tribunals over voters.
• Osigwe specifically highlighted how court rulings on BVAS and IReV have hindered electoral innovations and contributed to declining voter turnout.
• He argued that pre-election matters should not be justiciable and condemned the "go to court" culture for damaging the judiciary's image.
• Osigwe concluded by urging legal system reform to prevent voters from abandoning democracy to the courts.

If the legal system fails to undertake necessary reforms, the Nigerian electorate may eventually abandon democracy altogether, leaving the determination of leadership solely to the courts.

Afam Osigwe, a Senior Advocate of Nigeria and former President of the Nigerian Bar Association, recently voiced a strong critique regarding the trajectory of Nigeria's electoral system. Speaking in Enugu at the 22nd Nigeria Guild of Editors Conference, Osigwe asserted that Nigerian courts have increasingly encroached upon the fundamental right of citizens to elect their representatives, often through the application of contentious legal technicalities. This development, he argued, has led to a situation where political aspirants now frequently look to election tribunals as the primary arbiters of electoral success, rather than the electorate itself.

Osigwe specifically condemned what he termed the "judicialisation of the electoral process," warning that such a trend poses a significant threat to the nation's democratic foundations. He highlighted how procedural complexities and systemic corruption are progressively eroding the integrity of the democratic framework. To underscore his point, he referenced a paper by a judge who similarly observed that the judiciary's role has expanded to usurp that of voters, largely due to the inherent difficulties in proving non-compliance with the Electoral Act. Osigwe emphatically agreed with this assessment.

Nigeria, according to Osigwe, stands out globally for its exceptionally high volume of election petitions. He drew a stark contrast between Nigeria's often sluggish judicial processes and the swift action of the US Supreme Court, which managed to halt Donald Trump's postal voting initiative within a matter of days. This comparison served to illustrate the perceived inefficiencies and potential for delay within the Nigerian system, further exacerbating the reliance on judicial intervention in electoral outcomes.

The legal expert further elaborated on specific judicial interpretations that, in his view, have undermined critical electoral reforms. He pointed directly to court decisions that he believes have effectively "destroyed" the innovative potential of the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV). Osigwe explained that courts have ruled the BVAS machine itself to be the primary evidence in disputes, rather than its printouts. This judicial stance necessitates the physical transportation of every BVAS device from polling units to court within stringent timeframes, creating significant logistical hurdles and potential for manipulation.

This judicial approach, coupled with other systemic issues, has contributed to a palpable decline in voter turnout, Osigwe observed. He noted that many Nigerians now harbor the belief that their votes are ultimately inconsequential, citing a pervasive sentiment that "miracles happen" between polling units and collation centers, particularly during nighttime hours, before results are officially declared. This widespread skepticism, he argued, disincentivizes participation in the electoral process.

Osigwe also pointed out how politicians exploit this environment of distrust and judicial reliance. He described practices such as bribing voters with commodities like money, salt, and rice, alongside the recruitment of thugs to influence outcomes. Furthermore, he strongly criticized state electoral commissions, highlighting a consistent pattern where ruling parties invariably secure 100 percent of the votes. He recounted instances where results were allegedly announced even before ballot papers had been distributed, further eroding public confidence in the fairness of the electoral process.

The prevalence of a "go to court" culture in Nigerian elections has, according to Osigwe, severely tarnished the judiciary's public image. He lamented that this culture has unfortunately led to instances where some judges have been implicated in bribery scandals, further eroding trust in the impartiality of the justice system. He advocated for a fundamental shift in legal practice, specifically arguing that pre-election matters should not be justiciable, thereby reducing the avenues for protracted legal battles before the actual voting process.

Osigwe reflected on Nigeria's 64 years of independence, expressing frustration that the nation continues to offer excuses for its electoral challenges. He contended that the current system, rather than strengthening democracy, primarily serves to enrich a segment of the legal profession and, regrettably, corrupt judges. This critique aligns with a broader concern about leadership failure across Nigerian society, a theme he linked to Chinua Achebe's seminal work, "The Trouble with Nigeria."

Ultimately, Osigwe issued a stark warning: if the legal system fails to undertake necessary reforms, the Nigerian electorate may eventually abandon democracy altogether, leaving the determination of leadership solely to the courts. This urgent call for systemic change underscores the critical juncture at which Nigeria's electoral and judicial systems currently stand, emphasizing the need for a re-evaluation of judicial intervention in the democratic process.

This article highlights a prominent legal expert's critique of the Nigerian judiciary's role in electoral disputes, signaling potential future reforms or shifts in judicial interpretation concerning election petitions and the justiciability of pre-election matters. Lawyers involved in election litigation should note the ongoing debate regarding judicial overreach and the practical implications of rulings on evidence like BVAS.

Source: Original reporting via PUNCH