It’ll not eliminate technicalities elections are fraught with – Solomon

Some legal experts are sharply divided over Senate’s proposal to shift the burden of proof in election petitions from the petitioner to the Independent National Electoral Commission (INEC). While some described it as a progressive step that could enhance transparency and accountability in Nigeria’s electoral process.

Others, however, maintain that it would run contrary to the established practice of those making allegations to prove such in any litigation. The Senate had during plenary on Wednesday, called for an amendment to the Electoral Act 2022 to transfer the burden of proof from aggrieved candidates to INEC; the body constitutionally empowered to conduct and supervise elections in the country.

The proposal formed part of the deliberations on the general principles of a bill seeking to repeal the 2022 Electoral Act and enact a new Electoral Act 2025. Several senators, including Senate President Godswill Akpabio, supported the proposed change, insisting that INEC, as the organiser and regulator of elections, must be held responsible for defending the integrity of polls it conducts.

Leading the debate, Senator Seriake Dickson (Bayelsa West), said the re- form was “long overdue” if Nigeria must strengthen its democracy. Those who spoke on the issue include, Chief Mike Ahamba, a former APC National Legal Adviser, Mr. Babatunde Ogala, Mr. Olaolu Owolabi who are all Senior Advocates of Nigeria.

Others who spoke include a public interest lawyer, Dr. Abdul Mahmud, Mr. Iheke Solomon, Biodun Olugbemide and a rights activist, Malachy Ugwummadu.

Ahamba

Ahamba said: “The way to go about it is already specified in the Electoral Act and I am happy that the Senate is already looking into it. “The same Electoral Act even stated that where someone was declared winner of an election, INEC must show how he won the election.

So, It is the INEC that should proof that it conducted a free and fair election and not the other way round. The Senate’s action is a step in the right direction. “What the Senate is pushing for is the proper step and it is baffling that the judiciary allows this anomaly until the legislature makes it a statutory matter.”

Ogala

A former National Legal Adviser of the ruling All Progressives Congress, (APC), Mr. Babatunde Ogala, SAN, described any move by the Senate to amend extant laws to shift burden to INEC, as against the current situation where litigants are to prove, as ridiculous and against natural flow of justice.

In a telephone chat with our correspondent on Friday, Ogala who feigned ignorance of the proposal said it was a mere suggestion of a member on the floor however, stated such (the amendment) would spell doom for country if carried out owing to the fact that it would run contrary to global best practices of making whoever alleges to prove his allegation.

“For me, such suggestion even if in the works, which I doubt so much will run contrary to established global best practices in the legal profession that he who alleges must prove such allegation. It is a well-established practice and Nigeria cannot be an exception,” Ogala said.

Owolabi

Owolabi faulted the planned shift, describing it as mere flight of fancy as it (the move) runs contrary and contradicts established principles of the nation’s law and jurisdiction. According to Owolabi the move will impact negatively on the country’s adversarial system of ad- judication.

Apart from that, he added that all official acts of government are deemed to be regular and sacrosanct and that whoever has any query about them must prove their case in the face of law. “There is a presumption that official acts are regular and it is the burden of a party who challenges such official act, to bear the burden of proof. “INEC has been a necessary party to previous election petitions and have always had a responsibility of defending allegations contained in such petitions before now,” Owolabi said.

Mahmud

Mahmud said that while the proposal raises serious constitutional and evidentiary questions, it nonetheless provides an opportunity to reinforce the philosophy of electoral accountability.

“The idea is worth exploring. If implemented properly, it could compel INEC to maintain more meticulous records and defend its processes more transparently,” he said.

Dr. Abdul Mahmud said further that as the constitutionally established umpire, INEC is not merely a participant in the electoral process, it is the arbiter mandated by law to ensure that elections are free, fair, and credible.

“Accordingly, INEC should be legally bound to demonstrate the integrity of the elections it conducts. Under our existing law, the petitioner bears the burden of proof in election petitions, while INEC is mandated to produce election materials when ordered by a tribunal.

Yet in practice, INEC often fails to discharge this duty, hampered by institutional weaknesses and excessive deference to political power. “As a result, petitioners struggle to access critical evidence that is under INEC’s exclusive control, making proof of irregularities nearly impossible.

“Shifting the burden of proof to INEC is not simply an academic suggestion, it is a means to address entrenched power and compel the Commission to affirmatively justify its processes. INEC should be required to prove that elections under its supervision were conducted in full compliance with the Constitution, the Electoral Act, and its own regulations.

“For me as a discerning observer of elections globally, and courts’ responses in electoral litigations, comparative experiences support the proposition that once a petitioner establishes credible, prima facie evidence of irregularities the electoral umpire must answer and justify its con- duct.”

“Therefore, if carefully framed to safeguard due process and balanced fair- ness, the Senate’s proposal could mark a big step to- wards electoral credibility in our country. It could shift INEC from being passive overseer to active defend- er of its electoral integrity,” he said.

Olugbemide

Olugbemide in his own reaction said that, “the Sen- ate obviously took this step, in order to strengthen the electoral credibility ahead of 2027 general election. “Truth be told, just as Seriake Dickson (Bayelsa West), the first maker of the proposal said, the shift was necessary to enhance transparency and account- ability in the electoral process.

“As we all know, what we have under the current legal framework, the petitioners must prove, as provided for by the Evidence Act, but just as the Senate President: Godswill Akpabio also opined that the INEC should bear this responsibility, knowing full well that it organises and supervises elections.

“The petitioners don’t have to sweat to prove anything anymore, in as much as INEC conducts election, appoints ad hoc officials, collates and announces results, then, it must be able to prove that elections were truly con- ducted in accordance with the law,” he said.

Solomon

Commenting on the development, Iheke Solomon said, “The Evidence Act says he who asserts must prove. I have always wondered why the onus of proving that an election was not properly conducted should rest on the complainant.

“It makes more sense for INEC, as the body that conducted the election, to prove that it held a free and fair exercise.” Solomon cautioned that the proposed reform would not automatically eliminate the technicalities that often plague election petition proceedings.

“The amendment, while progressive, will not by itself remove the complex technical hurdles in election tribunals,” he said. He added in his contribution, that, “the senate electoral amendment whereby the burden of proof at election petition proceedings is shifted from the petitioners to INEC, is a welcome development.

This will significantly alter the course of legal proceedings in election petitions as far as the evidentiary burden is concerned. But this proposed amendment will by no means eliminate technicalities that election petition proceedings are always fraught with.

“It may not also remove the ingenuity of the perverse minds both at INEC and in the system that always conspire to cheat Nigerians of the fruits of a credible election. The proposed reform would not automatically eliminate the technicalities that often plague election petition proceedings.

“There’s still much to be done to ensure credible elections in Nigeria, and that includes the method of the appointment of the electoral helmsman that will eliminate the likelihood or suspicion of bias”.

Ugwummadu

A rights activist, Malachy Ugwummadu who also hailed the move, said: “the burden of proof in election-related cases must be on INEC. The Senate’s action in this regard is a welcome development.

“This is what civil rights groups have been pushing for all these years. The arguments have been that it is inappropriate for the burden of proof to be on someone who has no hand in the conduct of election. This person was not responsible for the declared results and as such, he or she has nothing to prove.

“It is more reasonable to ask the electoral body to show how it arrived at the results that were declared. INEC declared the results being contested and it’s also in custody of the election materials, so it should carry the burden of proof.

Pushing the burden of proof on someone who has complained of INEC’s transgression amounts to double jeopardy.