Excessive court intervention, weak electoral institutions threaten democratic confidence -Osigwe SAN

Former President of the Nigerian Bar Association (NBA), Mazi Afam Osigwe, SAN, has warned against electoral disputes saying, that Nigeria has one of the highest numbers of electoral disputes globally, a development that is increasingly drawing the courts into determining electoral outcomes and weakening public confidence in the democratic process

Osigwe made this known on Thursday in Enugu while delivering a paper titled “Election Petitions in the Digital Age: Independence, Evidence, BVAS and the Courts” at the 22nd Nigerian Guild of Editors (NGE) Conference. The conference is themed “The Ballot, the Media and the Task of Keeping Democracy Alive.”

Osigee said the growing number of election petitions reflected deeper challenges within Nigeria’s electoral system, particularly the conduct of elections, the difficulty of proving alleged violations and the increasing reliance on litigation to settle disputes arising from elections.
“I see that Nigeria is one of the countries with the highest number of electoral disputes. The problem with Nigeria is simply and squarely the failure of leadership,” Osigwe said.

He stressed that the problem of leadership was not limited to the Presidency, state or local government levels, but extended to the broader society.
According to him, the increasing involvement of the judiciary in electoral matters had resulted in what he described as the “judicialisation of the electoral process,” with courts gradually assuming responsibilities that should ordinarily be settled through credible elections and the votes of citizens.

Osigwe said the courts should have a more limited role in electoral disputes, noting that difficulties in proving electoral malpractice and non-compliance with electoral laws had contributed to the increasing number of cases brought before election tribunals and the courts
He said the credibility of elections was closely connected to the independence of electoral management institutions, the quality of evidence presented before tribunals and the ability of the judiciary to resolve disputes consistently and within the constitutionally prescribed time.
The former NBA president also linked declining voter participation to public concerns over whether votes would ultimately count.

He said allegations of violence, manipulation of results and other electoral irregularities could discourage citizens from participating in elections when they believed that the outcome might eventually be determined through litigation rather than by their votes.
Osigwe also questioned the process through which some electoral officials are appointed, warning that perceived political influence could undermine the independence and credibility of institutions responsible for conducting elections.
BVAS, electronic evidence challenges
The SAN devoted considerable attention to the growing role of technology in elections and the difficulties lawyers and petitioners face in presenting electronic evidence, particularly materials generated through the Bimodal Voter Accreditation System (BVAS).
He said technology was expected to simplify the process of establishing what happened during elections, but legal and procedural requirements had sometimes made it difficult for parties to effectively present and rely on technological evidence during litigation.

Osigwe also spoke on the evidential value of the INEC Result Viewing Portal (IReV), arguing that it should receive greater recognition in election litigation, even if it was not treated as the primary evidence of election results.
He further expressed concern about proposals that could prevent non-compliance with INEC regulations and guidelines from constituting grounds for challenging an election.

According to him, where the electoral commission is constitutionally empowered to make regulations and guidelines for elections, compliance with such rules should have meaningful relevance to the credibility of the electoral process.
He argued that the credibility of an election would be undermined if a person could be declared the winner without demonstrating that the process leading to the declaration complied with applicable electoral rules.
‘Credibility of elections tied to legitimacy’
Osigwe warned that an electoral process lacking credibility could undermine the legitimacy of those who emerge as leaders.

“An electoral process without credibility would undermine the legitimacy of those who emerge as leaders,” he said.
He also criticised what he described as inconsistencies in the interpretation and application of electoral laws, saying such inconsistencies could create confusion and weaken accountability and transparency within Nigeria’s electoral and judicial systems.

According to him, inconsistent judicial decisions could provide room for political actors or individuals to rely on questionable precedents to justify actions that might otherwise not withstand scrutiny.
He said institutions suffer whenever individuals compromise established principles because of personal relationships or other considerations.

The senior advocate also raised concerns about public perceptions of corruption in the judiciary, while making clear that he was not endorsing allegations of bribery against judges.
He said the widespread perception that litigants might need to pay for favourable judicial outcomes was damaging to confidence in the justice system.
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Osigwe also questioned the frequent political refrain of “go to court” after disputed elections.
He said the expression, when repeatedly used in the aftermath of elections, could create the impression that political actors were confident that electoral disputes would ultimately be settled through the courts rather than through transparent electoral processes.

He recalled that, while serving as NBA president, he had supported the position that certain pre-election matters should not be justiciable, arguing that political parties should have greater room to determine their candidates through internal democratic processes.
He called for reforms capable of strengthening electoral institutions and improving Nigeria’s system of electoral justice.

The former NBA president also expressed concern over the quality and diversity of Nigerians seeking elective office.
He said many capable Nigerians were discouraged from participating in politics because of the financial and other demands associated with contesting elections.

According to him, uncertainty surrounding electoral and judicial processes could gradually weaken democratic institutions and limit political participation.
He warned that the emergence of individuals who might not ordinarily qualify for leadership positions could have wider consequences for national security and citizens’ ability to live and practise their professions freely.

Media must hold institutions accountable
Osigwe urged journalists and editors to continue to scrutinise political leaders and public institutions, saying the media had a responsibility to expose weaknesses in the electoral and judicial systems.

“Can you not see that our electoral processes, the judicial processes concerning them, are headed for the rocks if they have not already hit the rocks?” he asked.
He urged stakeholders to pursue reforms that would restore public confidence in elections and ensure that the will of voters, rather than prolonged litigation, remains central to determining who governs.

The Osigwe session formed part of the wider deliberations at the 22nd All Nigeria Editors Conference in Enugu, which has brought together more than 500 editors, government officials, academics and other stakeholders to examine democracy, elections, media responsibility and emerging challenges such as AI-driven disinformation

The conference, which began on Thursday and continues on Friday, is also featuring discussions on electoral justice, election security, responsible journalism, terrorism reporting, journalists’ well-being.