•Ex-Appeal Court Judge, Igini back judicial reforms, fault technicalities in election cases
Wale Igbintade
Human rights lawyer and public affairs commentator, Prof. Chidi Anselm Odinkalu, yesterday accused the Nigerian judiciary of progressively taking away from voters the power to determine who wins elections, warning that courts are increasingly becoming “political market-makers” and arbiters of political power.
Odinkalu made the submission in Lagos while delivering the keynote address at the third edition of the Tunji Braithwaite Symposium, held at Glitter Hall, Kudirat Abiola Way, Oregun.
The symposium, organised by the Tunji Braithwaite Foundation, was themed, “The Judiciary and Electoral Integrity: Safeguarding Free, Fair, and Credible Elections for Democratic Consolidation.”
Odinkalu, who spoke on “The Judiciary and Electoral Integrity in Nigeria,” said although courts had a legitimate constitutional role in resolving electoral disputes, the evolution of election jurisprudence had increasingly allowed judges to determine who should occupy elective offices rather than merely adjudicate disputes over the conduct and outcome of elections.
“The courts have progressively taken away from voters the power to determine who wins elections,” he said.
He argued that the development had serious implications for popular sovereignty because political authority in a democracy should ultimately derive from the people.
According to him, judges had become “political market-makers and ultimate arbiters of winners and losers”, creating what he described as “an open market in the buying and selling of judicial decisions on election disputes.”
Odinkalu stressed that his criticism was not an argument against the judiciary or its constitutional responsibility to adjudicate electoral disputes.
Rather, he said his concern was the extent to which electoral jurisprudence had transformed courts from institutions for resolving disputes into institutions capable of determining political outcomes.
He also criticised the increasing political use of the expression, “Go to court”, saying a phrase that should ordinarily represent an invitation to seek peaceful and lawful resolution of disputes had increasingly become a threat.
He said it could now suggest to political contestants and voters that an election could be won or lost not only at the polling booth but also through prolonged litigation.
The legal scholar cited several controversial judicial decisions since the return to democratic rule in 1999, including cases arising from the 2003 Anambra South senatorial election, the 2007 Rivers State governorship election, the Anambra North senatorial contest, the Zamfara State elections and the 2023 Plateau State elections.
He argued that some judicial interventions had produced consequences that went beyond resolving disputes between contestants, creating uncertainty over where ultimate electoral authority resides.
Odinkalu was particularly critical of the doctrine under which votes could become ineffective because of a failure by a political party or candidate to satisfy legal requirements.
He argued that the concept of “wasted votes”, as applied in some electoral cases, could have consequences comparable, in its effect on popular sovereignty, to a military coup because it could displace the choice expressed by voters.
He therefore called for a mechanism under which voters could have the final say whenever a court nullifies an election.
Referring to recommendations of the Justice Muhammadu Uwais-led Electoral Reform Committee and other reform proposals, he said a fresh election should be conducted where a court invalidated an existing electoral result.
Under such an arrangement, he said, the court would determine whether an election was legally valid while the electorate would ultimately determine who should exercise the political mandate.
“This is the only way to restore the decision to the voters,” he said.
Odinkalu also raised concerns over the volume of electoral litigation and its effect on the wider justice system.
He cited figures showing that 3,312 election petitions were filed across six general-election cycles between 2003 and 2023.
The figures showed 62 petitions in 2003, 748 in 2007, 483 in 2011, 533 in 2015, 543 in 2019 and 943 in 2023.
He noted that the figures did not include pre-election litigation and other politically connected cases, meaning the overall burden of political litigation on the judiciary was considerably larger.
He warned that the concentration of judicial time on electoral disputes could affect ordinary litigants whose cases might remain unresolved while courts dealt with time-sensitive political cases.
Odinkalu, however, said the solution was not to weaken the courts or restrict citizens’ access to judicial remedies.
Instead, he called for stronger judicial doctrine, greater institutional discipline and a more principled approach to electoral adjudication.
His concerns received significant support from a retired Court of Appeal judge, Justice Oludotun Adefope-Okojie, who faulted what she described as the use of technicalities to overturn the wishes of voters.
Adefope-Okojie said many electoral cases that came before the courts arose from a lack of internal democracy within political parties, including instances where candidates who won party primaries were allegedly substituted with other candidates.
She said such practices generated unnecessary litigation and kept electoral disputes within the judicial system.
The retired judge said she was troubled by instances where a candidate who secured the majority of votes could lose an election because of technicalities.
“It is not right. It is not right. A man wins the votes, on technicalities you give it to somebody else. That is very wrong,” she said.
She called for the power to determine electoral outcomes to be returned to the electorate.
“The will of the people must be there,” she said.
Adefope-Okojie also raised concerns over what she described as inconsistent judicial approaches to electoral disputes, warning that conflicting interpretations of the law could create uncertainty over which precedents should be followed.
She questioned some interpretations of the Evidence Act in electoral cases, particularly requirements relating to the tendering of certified documents and calling witnesses from polling units.
She argued that such requirements could make it unnecessarily difficult for petitioners to prove electoral irregularities.
The retired judge also called for legislative reforms to accommodate circumstances in which witnesses from the Independent National Electoral Commission might be required by petitioners but could not reasonably be expected to provide statements favourable to the party calling them.
Also speaking, former Resident Electoral Commissioner of the Independent National Electoral Commission, Mike Igini, said the concerns raised at the symposium were particularly important ahead of the 2027 general elections.
Igini, who spent 10 years at INEC, said the ballot remained the best means through which citizens could express their will in a democracy.
He recalled that electoral reforms, including the introduction of the Bimodal Voter Accreditation System and the INEC Result Viewing portal, were designed to reduce opacity surrounding election results and strengthen public confidence in the electoral process.
However, he expressed concern that elections conducted by INEC were increasingly being determined by the courts.
“Today in our country, INEC-conducted election, it’s now the courts that determine the winners. This is unfortunate,” he said.
Igini said the judiciary, which should be the last line of defence of democracy and the rule of law, was increasingly perceived by voters as a “lost hope” when it came to determining who won elections.
He argued that the first warning sign of the subversion of democracy was the failure of courts to hold political elites accountable.
Igini also questioned aspects of the interpretation of provisions of the 2022 Electoral Act relating to the transmission of election results, arguing that mandatory provisions had been interpreted in a manner that weakened their compulsory character.
He said Nigeria needed to develop systems capable of ensuring that the will of the people was finally and conclusively determined at the polling unit.
Earlier, the Executive Director of the Tunji Braithwaite Foundation, OlaOluwa Braithwaite, said the symposium was designed to honour the legacy of her late father, Dr Tunji Braithwaite, and sustain his commitment to the rule of law and good governance.
Braithwaite said the approach to electoral justice was particularly urgent with the 2027 general elections approaching.
She asked whether Nigeria had created a system in which elections were not necessarily won at the ballot box.
She said the foundation was not seeking to indict the judiciary but to interrogate the existing system and develop recommendations capable of strengthening democratic institutions.
She urged participants to ensure that recommendations from the symposium reached the National Judicial Council, National Assembly and other institutions capable of implementing electoral and judicial reforms.
The speakers agreed that judicial intervention remained essential to electoral justice but argued that the courts should not become substitutes for the electorate in determining political mandates.