As part of the drive to strengthen Nigeria’s democracy through purposeful and intentional electoral reforms that guarantee Nigerians’ right to exercise their franchise and ensure their electoral choices reflect their wish, the Senate last week proposed that the burden of proof in election disputes should rest on the Independent National Electoral Commission (INEC) and not the petitioner or anyone challenging the outcome of the election conducted by the commission.
Under the current legal framework and existing electoral law, INEC is not mandated to prove the credibility, fairness and transparency of the election it conducts should disputes and contestations arise from the election’s outcome. That burden is on the petitioners. The challengers of election results bear the responsibility of proving that the election was marred by irregularities and malpractice. This is in line with the Evidence Act which stipulates that “he who asserts must prove.”
The proposal to shift the burden of proof to INEC, first made by Senator Seriake Dickson, representing Bayelsa West, arose during deliberations to amend the 2022 Electoral Act and promulgate a new 2025 version. The proposal received the support of many senators, including Senate President Godswill Akpabio, who argued that INEC should bear this responsibility since it organises and supervises elections.
The proposal is not only commendable, it is crucial to our electoral process and other paraphernalia of civil liberty and governance that underpin our democracy. After the highly controversial presidential election of 2007, where the winner of the election, late Umar Yar’Adua, publicly declared that the election that brought him into office was fraught with irregularities and violence, Nigeria began comprehensive electoral reforms that considerably improved the conduct of elections in the country. These reforms ushered in a new era that saw INEC regain the trust and confidence of the Nigerian people. These gains were sustained for nearly a decade before things began to unravel again in 2019 after the result of the keenly contested presidential election that year had to be challenged in court.
The quality of elections conducted by INEC from then onward began to deteriorate up to the 2023 general elections. The situation got worse during and after the election. Despite the assurance of free, fair and credible elections backed by the promise of electronic transmission of results, the majority of Nigerians were left painfully disappointed and disconcerted by the conduct of the polls after the commission stopped the uploading of the presidential election results on the results viewing portal amid voting, citing a glitch in its system.
Nigerian politicians are litigious in nature, hence the aftermath of elections in Nigeria is always characterised by legal disputes and no election year exposes this reality better than the 2023 general elections. Aside from the presidential election, whose outcome was challenged up to the Supreme Court, virtually all the gubernatorial election outcomes held that year were contested in court. While some of the petitioners had no solid ground or reason to challenge their loss order other than the aching need to fulfil that usual post-election litigation rituals, the overwhelming majority of the litigants were genuinely justified in their decision to challenge the outcome of the election in court.
However, despite the palpable irregularities and manipulations occasioned by brazen violation of the electoral act, many, especially those in the opposition, were, according to the courts, unable to prove their case because INEC, in most cases, simply refused to provide the petitioner with materials and documents needed to prove their case and in instances where they did grudgingly furnish the petitioner with materials and documents needed, they are either grossly inadequate or completely useless to the case at hand. There is only so much a petitioner can do if the body that conducts the election he is challenging its outcome is refusing to prove the credibility of the election.
This behaviour of INEC is often overlooked by the court because the law places the burden of proving that the election that the commission conducts does not meet the required and expected standard on the litigants and those making the claim and not on the umpire who conducts the election. This has made it exceedingly easy for the electoral commission to evade accountability. It gives it the leeway to shun hard and pertinent questions regarding the elections it conducts. Giving INEC so much wriggle room and latitude to disregard valid and legal summons to authenticate and prove the credibility of the elections it conducts not only undermines our electoral process but also has grave repercussions for our relatively nascent democracy.
The move by the Senate to correct the anomaly that places the burden of proof in election disputes on litigants and petitioners will strengthen our elections and deepen our struggling democracy, should the proposal become law. However, we must not get carried away by the euphoria of this proposal as we’ve been on this road before and done similar song and dance in the past. We’ve had many instances where well-intentional proposals that are expected to correct years of abnormality are made, but nothing came out of them when they were eventually passed, as they did not address the abnormality and anomaly they were designed to tackle. We’ve had situations where good and people-oriented bills that look like they are genuinely sponsored to change things and effect positive changes, but nothing happened after the bills were passed into law, and the reality of those who should benefit from the law remains largely the same as before the bills were passed.
Nigeria is not short of compelling, sound and solid laws that are made to ensure every aspect of governance in the nation is run in accordance with the provisions of the constitution; the challenge has always been the enforcement of the laws. If our laws, especially the current electoral act we’ve, are implemented according to their dictates and with a good conscience, we wouldn’t be talking about new electoral reforms. In the last electoral reform, there is a provision for the electronic transmission of results right from the polling stations after the votes have been counted and collated. INEC initially made some perfunctory effort to implement this provision, but later stopped with the pretence and altogether stopped the electronic transmission of election results, which then made rigging and manipulation of election results easy.
The proposal to shift the burden of proof to INEC is one way to address INEC’s blatant disregard for its own electoral guidelines and laws. Enacting this law will not be enough, it must be implemented in good faith. If implemented with the interest of the nation at heart it will bring about radical changes in Nigeria’s electoral jurisprudence in profound ways.
It will also lift the crushing evidential and financial burdens that have historically stood in the way of legitimate challenges to flawed and questionable elections, thereby creating a level playing field for all political actors. By making INEC accountable for its actions – or inactions – the amendment engenders greater transparency, fairness, and deepens public trust in our democratic institutions. It sends a clear and strong message that no entity, however powerful, is above questioning or even prosecution in protecting the sanctity of the ballot.
As a nation still reeling from the pains of controversial elections, this move is a timely and important remedy to the pessimism that has corroded confidence in our electoral system. It will give ordinary citizens and political underdogs the power to seek legal redress in court without the fear of crippling prohibitive legal costs or insurmountable proof hurdles, ultimately strengthening the democratic fabric of our beloved country.
To make this proposed amendment truly effective and achieve the desired result, it is important to create an Electoral Offences Tribunal or dedicated commission to prosecute such infractions swiftly, ensuring that perpetrators of electoral fraud are brought to book and are made to bear the full weight of legal consequences for their actions