The Supreme Court and Electoral Integrity: Challenges and Reflections from Nigeria

3 Jul

The “Emperor’s New Clothes” by Danish author, Hans Christian Andersen tells the story of an emperor obsessed with flamboyant clothes at the detriment of pressing state affairs.

One day, two imposters posing as master weavers deceived the Emperor with promises of creating luxurious fabrics visible only to the wise and competent. The conmen set up empty looms and pretended to weave diligently. The Emperor’s ministers, hesitant to admit they couldn't see the fabric, lauded its supposed magnificence.

When the conmen announced the completion of the Emperor's suit, they supposedly dressed him up for a grand procession through the city. As the Emperor strutted down the street, the town’s citizens, reluctant to appear foolish all played along until a little child candidly pointed out the truth: by Jove, the Emperor was naked! Despite the embarrassment, the Emperor continued the procession, refusing to acknowledge the deception that had ensnared him and his court.

Recently in Nigeria, the outcomes of the governorship election petition tribunals in Kogi, Imo, and Bayelsa states came as expected, with the elections upheld despite reported widespread irregularities. A report from the Independent National Electoral Commission (INEC) revealed that out of 1,209 election petitions stemming from the 2023 general election, only 103 petitions (8.5%) were upheld at the initial court level. Notably, all governors declared elected by the INEC successfully retained their seats after appeals were concluded at the Supreme Court.

These developments prompt a critical reflection: are Nigerian elections suddenly credible with allegations of irregularities unfounded, or is the judiciary failing in its duty? Both statements cannot be true simultaneously. I would argue that a historical examination of Nigeria’s electoral landscape does not support the notion that all prior intractable challenges of integrity of election results have been resolved overnight.

Allow us to go down memory lane briefly. In 2007, President Umaru Yar'adua publicly acknowledged the flaws in the elections that brought him to power. In response, his administration formed the Electoral Reform Committee led by Justice Muhammadu Uwais. Their recommendations led to the enactment of the Electoral Act 2010, which introduced significant reforms such as biometric voter registration.

President Goodluck Jonathan continued the drive for electoral reforms during his tenure, notably introducing permanent voter cards (PVCs) and card readers in 2015. However, following the 2015 general elections, the Supreme Court of Nigeria surprised many legal observers by completely discountenancing the accreditation reports presented as evidence from the card readers.

For instance, in Wike Nyesom v Dakuku Peterside (SC. 1002/2015), the INEC declared Wike Nyseom as the winner of the 2015 Rivers state governorship election with 1,029,192 votes while the Card Reader Report Exhibit A9, tendered at the Tribunal by an INEC Assistant Director ICT showed only 292,878 accredited voters. Notably, the Tribunal in nullifying the election had this to say, “It was by the enormous powers conferred on INEC that the body introduced the Card Reader to bring sanity and sanctity into the electoral body… The albatross around the neck of the Rivers State INEC is that it totally failed, neglected and refused to follow the guidelines as set out by the controlling body.”

However, the Supreme Court, per Kekere-Ekun JSC, who delivered the lead judgment, set aside the concurring judgments of the Tribunal and Court of Appeal, and instead emphasized reliance on manual paper-based Voters Register and electoral forms in determining the accuracy of declared results. This decision effectively diminished the significance of the card readers in electoral disputes, despite their introduction to improve transparency and credibility in the electoral process. Inevitably, card readers died a judicial death.

Fast forward to recent times, President Muhammadu Buhari's administration also focused on electoral reforms. The Electoral Act 2022 was passed with several new measures and technologies including the use of Biometric Voter Accreditation System (BVAS) and electronic transmission of results via the INEC result viewing portal (IReV). There were many other novel provisions aimed at ensuring electoral integrity such as section 137, which provides that it shall not be necessary for a party who alleges non-compliance in the conduct of an election to call oral evidence when originals or certified true copy of documents prove the non-compliance alleged.

This provision, in my view, was aimed at displacing the onerous burden imposed by the Supreme Court on Petitioners in electoral disputes to compulsorily call oral evidence from each polling unit where irregularity is alleged notwithstanding the availability of documents often times certified by the INEC conclusively evidencing the irregularity. It can be argued that the draftsman intended to streamline the burden of proof in electoral challenges, aiming for a more efficient and transparent adjudication process.

Also worthy of mention is paragraph 46 (4) of the 1st Schedule to the Electoral Act, 2022, which provides that the court shall scrutinize or investigate the content of all documents tendered before it as part of the process of ascribing probative value to the documents or otherwise. This provision directly tackles the issue of "dumping of documents" - a practice where Nigerian courts often expunge documents tendered before them without as much as even taking a look.

In my perspective, Paragraph 46 (4) represents a decisive step towards ending this practice by ensuring that all documents submitted as evidence in electoral disputes undergo meticulous scrutiny, thereby enhancing the reliability of judicial decisions in electoral matters.

The Osun State Governorship election in 2022 provided an early opportunity for a number of the novel provisions in the Electoral Act 2022 to face judicial scrutiny. In a majority decision at the Tribunal, a BVAS accreditation report issued by the INEC was relied on to set aside the election of Nurudeen Adeleke as Governor of Osun State on grounds of over-voting. In this case, Adegboyega Oyetola & Anor v. INEC & 2 Ors. EPT/OS/GOV/01/2022, contradictory BVAS accreditation reports tendered by the Petitioners (Adegboyega Oyetola) and the Respondents (INEC, Adeleke Ademola and Peoples Democratic Party) were placed before the Tribunal. The contention of the Respondents was that the Petitioners’ accreditation report was inchoate and issued at a time when the accreditation numbers had not yet been synchronized.

The Respondents contended that their BVAS report was obtained directly from physical inspection of the BVAS machines and therefore more reliable. The Tribunal dismissed the submissions of the Respondents and chose to rely on the BVAS accreditation report tendered by the Petitioners which showed over-voting in a number of polling units. In the Tribunal’s view, the INEC was estopped from acting contrary to the import and tenor of the BVAS accreditation report issued to the Petitioners, pursuant to Section 169 of the Evidence Act 2011. The Tribunal lambasted the INEC for attempting to tamper with official records.

Furthermore, the Tribunal had the opportunity to rule on Section 137 of Electoral Act, 2022 and Paragraph 46 (4) of its First Schedule. The Respondents had contended that failure to tender the Voters Register and call presiding officers (note that these are INEC ad-hoc staff) from each of the polling units was fatal to the Petitioner’s case, relying on past judicial authorities. The Respondents also urged the Tribunal to declare Section 137 unconstitutional and a usurpation of judicial powers. Interestingly, the Tribunal declined both arguments.

In Justice T.A Kume’s view, Chief Magistrate Rabi Bashir concurring, there was enough documentary evidence, certified true copies, before the court to make an informed decision, and pursuant to the innovative provisions of Section 137 and Paragraph 46 (4), there was no longer any need to call oral evidence. The Tribunal emphatically upheld the constitutionality of Section 137.

“…the fear of challenging perceived norms perpetuates institutional shortcomings.”

In-spite of the progressive judicial attitude of the Tribunal to the issues before it, the Court of Appeal set aside the Tribunal’s decision. The Appeal Court expressly declined to apply the innovative provisions of Section 137 and Paragraph 46 (4). In their words – “It is the exclusive preserve of the Judge to decide whether or not there is need to call oral evidence to demonstrate the contents of documentary exhibits because it is the Judge that is saddled with the responsibility for evaluation of evidence…. Such function cannot be circumscribed by a statutory provision like Section 137 of the Electoral Act, 2022 and paragraph 46 (4) of the First Schedule to the Electoral Act, 2022… Whether or not the evidence is satisfactory is for the Court to decide not the legislators, who in their desire probably to cut down on the size of witnesses need to prove an election petition decided to insert Section 137 of the Electoral Act, 2022.” The Supreme Court upheld the decision of the Court of Appeal thereby rendering Section 137 and paragraph 46 (4) merely cosmetic.

It is important to add that in a rather strange twist, the Supreme Court, in my view, mischaracterized the issues between the parties as argued at the Tribunal and the Court of Appeal. The Supreme Court instead went on an extensive unwarranted annotation of whether there was a duty imposed on the INEC to transmit the number of accredited voters to a database or whether there was a requirement for polling unit results to be transmitted on the spot to a database. None of these issues were before the Tribunal or the Court of Appeal.

The Tribunal or the Court of Appeal never averred its mind to the issue of instant transmission of polling unit results. Curiously, the Supreme Court decision in Oyetola’s case was given at a time when there was a fiery national debate over transmission of the Presidential election results. Undoubtedly, the Oyetola case served as a precedent for the decision in the Peter Obi and Atiku Abubakar's cases regarding the issue of transmission of results. In the circumstances, it would seem to some impartial bystanders that the outcome appeared preordained.

Overall, the rulings of the Nigerian Supreme Court in Oyetola, Atiku Abubakar and Peter Obi’s cases, have effectively nullified the progressive provisions of the Electoral Act, 2022 concerning electronic transmission of results, as well as Sections 137 and Paragraphs 46 (4) of the First Schedule to the Act. The Supreme Court’s reliance on arcane legal formalism has undermined the progressive efforts of the legislature, going all the way back to card readers.

The implication is that little progress has been made in electoral system reforms since 2007, especially with respect to the accuracy and integrity of declared election results. We are still stuck in a situation where the INEC could arbitrarily declare a winner based on paper documentation without robust means to verify the accuracy of such declarations, while the Supreme Court in the same breath imposes an extremely unrealistic evidentiary burden on Petitioners. Contrary to the approach of the Supreme Court, the lower courts, as exemplified in the cases of Oyetola and Nyesom Wike's, demonstrate a clearer understanding of the necessity for electoral reforms. The anti-reform judicial stance observed in the Supreme Court appears more pronounced in contrast.

In conclusion, much like the Emperor who was beguiled by swindlers promising invisible garments, Nigeria's judiciary has faced criticism for failing to uphold crucial electoral reforms. The judiciary's decisions have often been seen as prioritizing spurious formalism over the urgent need for transparency and reforms. This stance echoes Andersen's tale, where the fear of challenging perceived norms perpetuates institutional shortcomings.

The contention of the Respondents was that the Petitioners’ accreditation report was inchoate and issued at a time when the accreditation numbers had not yet been synchronized. The Respondents contended that their BVAS report was obtained directly from physical inspection of the BVAS machines and therefore more reliable. The Tribunal dismissed the submissions of the Respondents and chose to rely on the BVAS accreditation report tendered by the Petitioners which showed over-voting in a number of polling units. In the Tribunal’s view, the INEC was estopped from acting contrary to the import and tenor of the BVAS accreditation report issued to the Petitioners, pursuant to Section 169 of the Evidence Act 2011. The Tribunal lambasted the INEC for attempting to tamper with official records.

Interestingly, the Tribunal declined both arguments. In Justice T.A Kume’s view, Chief Magistrate Rabi Bashir concurring, there was enough documentary evidence, certified true copies, before the court to make an informed decision, and pursuant to the innovative provisions of Section 137 and Paragraph 46 (4), there was no longer any need to call oral evidence. The Tribunal emphatically upheld the constitutionality of Section 137.

Curiously, the Supreme Court decision in Oyetola’s case was given at a time when there was a fiery national debate over transmission of the Presidential election results. Undoubtedly, the Oyetola case served as a precedent for the decision in the Peter Obi and Atiku Abubakar's cases regarding the issue of transmission of results. In the circumstances, it would seem to some impartial bystanders that the outcome appeared preordained.

We are still stuck in a situation where the INEC could arbitrarily declare a winner based on paper documentation without robust means to verify the accuracy of such declarations, while the Supreme Court in the same breath imposes an extremely unrealistic evidentiary burden on Petitioners. Contrary to the approach of the Supreme Court, the lower courts, as exemplified in the cases of Oyetola and Nyesom Wike's, demonstrate a clearer understanding of the necessity for electoral reforms. The anti-reform judicial stance observed in the Supreme Court appears more pronounced in contrast.