Afam Osigwe: Courts, Not Voters, Now Decide Nigeria’s Elections
Former President of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, SAN, has criticised the growing reliance on election tribunals to determine electoral victories in Nigeria, saying courts are increasingly assuming the role of voters.
Osigwe made the remarks on Thursday while delivering a paper titled “Election Petition in the Digital Age: Independence, Evidence, BVAS” at the 22nd Nigeria Guild of Editors Conference in Enugu.
He expressed concern over what he described as the increasing judicialisation of Nigeria’s electoral process, arguing that difficulties in proving breaches of electoral laws had gradually shifted the power to determine elected representatives from voters to the courts.
“A judge, a very good friend of mine, once presented a paper and called it ‘The Judicialization of the Electoral Process.’ He argued that because of the difficulty of proving non-compliance with the Electoral Act, 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,” Osigwe said.
According to him, Nigeria has one of the highest numbers of election petitions globally, with politicians increasingly relying on tribunals and courts rather than voters to determine electoral victories.
He also criticised the slow pace of judicial proceedings in Nigeria, contrasting it with the United States Supreme Court’s handling of a case involving former US President Donald Trump and voting protocols linked to the US Postal Service.
“I don’t know how long such a process would have taken if it were Nigeria, or if our courts would have had the boldness to decide decisively,” he said.
Osigwe linked Nigeria’s wider electoral problems to what he described as a failure of leadership, citing Chinua Achebe’s book, The Trouble with Nigeria.
“Chinua Achebe, in his book The Trouble with Nigeria, identifies leadership as the problem. He says, ‘The trouble with Nigeria is simply and squarely a failure of leadership.’ And this failure of leadership is found in our homes, in our organizations, and everywhere we work, not just in the presidency or governorships,” he said.
He also acknowledged shortcomings within the legal profession, saying lawyers sometimes present overly complicated arguments that make it difficult for judges to properly follow their cases.
Turning to the Independent National Electoral Commission (INEC), Osigwe said declining voter turnout was a reflection of growing public distrust in the electoral system.
“If you check the voter turnout data, increasingly, fewer Nigerians are coming out to participate in elections. It’s because many Nigerians do not believe that whatever votes they cast matter or count,” he said.
He particularly criticised the lack of transparency surrounding the collation of election results, especially when the process continues late into the night.
“They believe that between the polling units where they vote and the announcement of results at collation centres, especially if collation drags into the night, miracles are suspected to have happened before daybreak. So why vote?” he asked.
Osigwe said politicians take advantage of the distrust by inducing voters with food and money while recruiting young people to participate in electoral violence.
“Politicians, knowing that the people don’t have confidence in them, prey on the people by giving them money, salt, and rice, while recruiting helpless young men as thugs to unleash violence,” he said.
He also criticised the political influence surrounding State Independent Electoral Commissions, claiming that ruling parties frequently record sweeping victories in local government elections.
“Whenever people are appointed into the State Independent Electoral Commissions, the ruling party almost always wins 100%. Sometimes you’ll be waiting for ballot papers to arrive, and the results are already announced,” he said.
Osigwe questioned whether technological reforms introduced to improve the credibility of elections, including the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IReV), had achieved their intended purpose in light of subsequent judicial interpretations.
“Because of the difficulty of proving allegations, we introduced smart cards in 2015, and then moved to BVAS and IReV. Everybody said ‘Hooray!’, but then came the shockers from the courts,” he said.
On the evidentiary value of BVAS, Osigwe said a court ruling that treated the physical BVAS device as primary evidence rather than its printout had created significant practical difficulties for election petitioners.
“The court held that the BVAS machine itself is the primary evidence, not the printout from it. So if you are challenging a state-wide election, you must physically carry the BVAS from every single polling unit to court within strict time limits. Yet technology was supposed to make it easier for us,” he said.
He also questioned court decisions concerning subpoenas in major presidential election petitions involving Atiku Abubakar and Peter Obi.
“The court’s decision on subpoenas confuses me. When the court said anything a subpoenaed witness did not file within 21 days is inadmissible, it effectively rendered useless the concept of a subpoena. How do you expect an INEC official to willingly sign a witness statement on oath against INEC within 21 days without being suspended?” he asked.
Osigwe said IReV had effectively been reduced to a viewing platform and expressed concern about proposed amendments to electoral laws that would remove non-compliance with INEC regulations as a basis for challenging an election.
“IReV is now treated as a mere viewing portal, like going to a gallery to watch a football match,” he said.
He also questioned the legal basis for treating violations of INEC guidelines as having no effect on the validity of an election.
“In my administrative law class at the University of Nigeria in 1993, we were taught that subsidiary legislation made pursuant to a main law has the force of law. Yet now, non-compliance with INEC guidelines is treated as no violation at all,” he said.
According to Osigwe, weaknesses in Nigeria’s electoral dispute resolution system have also encouraged politicians to dismiss electoral challenges by telling opponents to “go to court”.
“When a politician tells you to ‘go to court’ in Nigeria, his tone and body language suggest he knows you are going to meet a brick wall, or that he already knows what the outcome will be. It means: ‘Let that idiot go and waste his time,’” he said.
He said the expression had contributed to negative public perceptions of the judiciary and allegations of judicial corruption.
“That ‘go to court’ refrain has brought poor perception to the judiciary. A number of judges who have been disciplined were caught collecting money from litigants for favors,” Osigwe said.
Reflecting on his tenure as NBA president, Osigwe said he had supported removing pre-election disputes from the courts, arguing that political parties should be allowed to select their candidates through internal processes.
“When I was NBA President, I supported the view that pre-election matters should not be justiciable. Political parties should be able to choose their representatives through internal processes without court interference, just like in the UK where party executives control nominations,” he said.
He rejected arguments that Nigeria was not ready for such an arrangement, noting that the country had been independent for 65 years.
“People say we are not yet ripe for that process. But the last time I checked, we gained independence 65 years ago. We keep making excuses, and we only end up making many lawyers very wealthy and corrupt judges extremely wealthy,” he said.
Osigwe also raised concerns over allegations of bribery involving foreign currencies in election tribunals.
“I am told most of these bribe payments to tribunals are made in US dollars, pushing down the value of the naira. Whether true or not, the fact that it is a commonplace saying among lawyers leaves a damaging perception on the judiciary’s ability to deliver justice,” he said.
He concluded by warning that continued weaknesses in Nigeria’s handling of electoral disputes could further discourage citizens from participating in elections and deepen reliance on the courts to determine electoral outcomes rather than leaving the final decision to voters.
