Recently, the Edo Governorship Election Tribunal delivered judgement on the petition of the PDP Governorship candidate on the 2024 Edo State Governorship Election which the Independent National Electoral Commission (INEC) declared the APC candidate as the winner. The PDP had complained that the APC did not win the highest number of valid votes and that the election was marred by substantial irregularity because of non-compliance with the strict requirements of the law. Shorn of legal jargon, the petition simply alleged that INEC rigged the election for the APC, that the APC candidate was nor duly elected.
The judgement of the tribunal is now a matter of public discourse because it is not just a judicial determination. It goes beyond that. It is a metaphor for what has become the fate of democracy in Nigeria. The problem with judicial involvement in election disputes in Nigeria is not because it is leading to the judicialization of politics. The problem is the gradual but determined destruction, through judicial decisions, of credible incentives for free and fair elections in Nigeria. If there is no strong incentive for the electoral management body to ensure free and fair elections, then the electoral system is not competitive. Without competitive elections, that is, elections were powerful incumbent could easily lose, it will be difficult to sustain democracy in Nigeria.
To understand what damage is being done to democracy in the sort of judgement delivered by the Edo State Governorship Election Tribunal, it is important to restate the fundamentals of democracy. At a time when the leading democracies in the world are drifting towards autocracy or fascism in their politics, simply restating the fundamentals of democracy becomes a revolutionary act. In a time when transitional democracies like Nigeria and some of the African countries are shifting towards electoral autocracy, it is important to remind ourselves the meaning of democracy.
There are three fundamentals features of democracy. The most fundamental is political equality. Democracy starts from the premise that citizens in a polity are equal. This equality finds expression in the simple fact that they jointly make laws that regulate their affairs and govern themselves. In the classical Greek City-state, Athens, the mythical home of democracy, political equality meant that all male citizens met at the Agora daily to deliberate and make laws and take turns periodically to sit in the magisterium to decide disputes. In the larger and complex modern society, political equality means that every adult citizen has a right to elect those who will sit in the modern Agora (parliament) and presidential villas to make laws and execute them. So, the first and foremost mark of a democracy is that the people choose their leaders as political equals. The concept of political equality has great implications for how the electoral system is designed and the management of the larger political institutions.
The second fundamental of democracy is the guarantee of freedom and liberty of the people. If the people are politically equal, it means that no one should violate the dignity of anyone. It means that the essence of government is that no one’s life is more valued in a fundamental sense than that of another. This is why Robert A. Dahl argued that “Democracy is not only a process of governing. Because rights are necessary elements of democratic political institutions, democracy is inherently also a system of rights. Rights are among the essential building blocks of democratic process of government ”.
The third fundamental of democracy is that the regime in power can easily be removed by the people whenever they are dissatisfied of its performance. This is what Robert Dahl calls ‘responsiveness’. The beauty of democracy is that those who occupy public offices know that if they do not satisfy the expectations of the people, they could lose their positions of power. This reality of losing elections and accepting the outcome is what Joseph Schumpeter identified as the essence of democracy and what makes democracy superior as an engine of economic and social development. The feasibility of removing non-performing public officials is the inherent feature of democracy that makes it a more reliable driver of economic growth than any other model of governance.
The device through which democracy achieves its purposes is elections. Modern democracy has been reduced to representative democracy. This is so because the only way we can achieve self-determination in a large and complex society is by having a few people representing the rest of us. These representatives are chosen through periodic elections. There are no more popular democracies. We have only representative democracies. The heart of representative democracy is elections. The most important work that citizen of democracies do is to elect representatives who thereafter act on their behalf on issues of public interest.
There are elements of good electoral system that leads to democracy. These elements are grouped together as elements of ‘free and fair’ elections. Free and fair elections have three elements that ensure that they can produce a democratic governance. The first element is that every adult citizen can register to vote. In many countries, 18 year olds are old enough to vote. Making good provisions for every adult citizen to register to vote is the most important element of free and fair elections. The second element is that voting must be voluntary and uncoerced. This is the notion of freeness. Political freedom requires that citizens make a choice of who governs in the atmosphere of freedom. This is also an aspect of competitiveness. Except there is freedom to freely associate politically and to vote whoever we like, there is no competitive elections. And this leads to the third element of a democratic electoral system, namely, that votes are accurately counted and announced. The integrity and credibility of the electoral system are hinged on the pillar of accurate counting of votes and announcement of results. We can attest that Stalin got it right when he noted that those who count the votes are more important than those who cast votes.
Competitiveness requires that opposition to incumbents enjoys the full complement of political rights to freely organize and mobilize against the incumbents. Where the political environment and voting process are suppressive and oppressive against some contestants for public offices, there are no democratic elections. The final fundamental element of a good electoral system is that the votes are accurately counted and announced. This is why, as Stalin once noted that those who count the votes are more important than those who cast the votes.
These core elements of a good electoral system are incorporated in our electoral laws and procedures. The Election Act of 2022 has improved on some of the deficiencies of the electoral system by providing safeguards against electoral fraud. Prevalent electoral frauds destroy the heart of electoral democracy because it substitutes the will of a few for the will of the people. Where elections are notoriously and consistently fraudulent, elections can no longer be competitive because the opposition will find it difficult to win the incumbents, even where there is clear demand by the electorates for change of leadership. Free and fair elections have inherent and instrumental values. Inherently, free and fair elections make real the notion of political equality and self-determination at the heart of democracy as a value and practice. If elections are not free and fair, it means that the will of the few will trump the will of the majority. It means that citizens are not self-determining because those who make and execute laws are not their representatives. Instrumentally, free and fair elections make strong the incentive structure of democratic governance that ensure political officeholders respond to the needs of the people because they could be removed from power next time.
The responsibility to realize these features of a good electoral system which are largely stated in our electoral law rests on INEC. Over the years, INEC has failed this responsibility. It is safe to say that since 1999 we have witnessed a continuing degeneration of the integrity of the electoral system. Each general election seems to be worse than the preceding one. This is as the technology of electoral management improves. This degeneration of the integrity of the electoral system as its technological and logistical quality improves has made many to argue that the problem with elections in Nigeria is human agency not law, not technology. In support of the institutional pessimists, the fact that despite the incorporation of real-time electronic transmission of results from the polling units to the election view portal (IreV) and the assurances by INEC leadership that had a foolproof technology platform, the 2023 presidential election was rigged because INEC shut down the IreV and refused to electronically transmit results. At the presidential tribunal, INEC argued that it had the discretion to go back on its commitment. INEC gutted its most secured guarantor of free and fair elections So, the 2023 presidential election failed because INEC decided to rig the election, not because technology failed or legal provisions were insufficient.
The reform of the electoral law in 2022 tried to improve the credibility and reliability of elections in Nigeria by eliminating the avenues for rigging. To ensure the accuracy of votes, it provides for biometric accreditation and mandates that where the result of votes in a polling unit is more the the total number of voters duly accredited through the biometric data capture system, the result is invalid. The law also mandates that before voting begins the polling officers should write down in a prescribed form the serial numbers and other details of voting materials, result sheets and other sensitive material. Failure to do this is a substantial non-compliance that nullifies the result from the polling unit. In Edo governorship election, INEC refused to follow these safeguards and declared a result wildly different from those it uploaded on its electronic platform. In this instance, a strong safeguard against electoral manipulation was gutted by compromised and corrupt officials. Human agency fails the test as it did in the 2023 presidential election.
The argument in support of the role of human agency in the failure of Nigeria’s electoral system to meet the requirements of free and fair elections does not end with the administrative management of elections. It extends to the judicial management of elections through electoral dispute settlement. The Electoral Act, 2022 provides a clear guide for effective and coherent judicial management of elections. It requires the court to nullify elections where these fundamental conditions of free and fair are not satisfied. But as the Edo Governorship Tribunal judgment shows, the human agency problem shows up again. Judges misconceive the essence of election jurisprudence and misdirect themselves to absolve corrupt electoral officers and approve clear electoral fraud. Through the wrongful exercise of human agency, the judiciary undermines the institutional basis of electoral democracy by encouraging electoral manipulation.
By its judgment delivered on April 2, 2025, the Edo Governorship Tribunal perpetuates the judicial support for electoral mismanagement. In that judgement, the Edo State Governorship Tribunal dismissed the petition of the PDP candidate at the governorship election against INEC for declaring the APC candidate as the duly elected Governor of Edo State in the 2024 governorship election. The PDP candidate petitioned the Tribunal on the basis that the INEC invalidly declared the APC candidate as winner based on false invalid results. Evidence of independent poll watchers is that the declaration was fraudulently made with result sheets that were not the ones used at the polling units. INEC allegedly printed two different result sheets and used one to declare results unrelated to the real results uploaded to its result viewing portal. Also, many polling units had results where the total votes declared for the candidates were more than the number of accredited voters. This is despite that the Electoral Act mandates that the serial numbers of all the materials used for voting should be written in a prescribed form before voting to ensures the authenticity of the results. This safeguard was introduced because INEC officials often divert sensitive materials to politicians who write false election results which are used to declare electoral victory. To stop this, the Electoral Act in Section 73(2) requires that serial numbers of all voting papers, accreditation sheets and result sheets must be written down in prescribed form before voting. If this is not done the results are invalid. The tragedy of the Edo election is that all these safeguards were violated. INEC declared a winner with polling unit results different from polling unit results it had posted electronically in real-time from the polling unit after the voters were counted. Evidently, the result sheets used to declare the winner were fraudulently procured and not the only used for the election.
We need to break down the Edo election petition to properly understand the core issues and the legal position on each of them. The first issue concerns non-compliance, specifically under Section 73(2) of the Electoral Act, which mandates that before the commencement of polls, INEC must record the serial numbers of al sensitive materials such as BVAS machines, ballot papers, and result sheets, in the prescribed form. Failure to do so renders election in that polling unit automatically void. The Supreme Court in Augustine v. INEC clarified two crucial points. First, the prescribed form is Form EC25B, as specified by INEC itself. Second, that this is a ‘strict liability provision’. This means that the petitioner only needs to tender documentary evidence that the forms were not filled. The idea that only the ‘maker’ of the document can speak to the form, or that the polling unit witnesses must be called, is a legal fiction, with no grounding in Nigerian jurisprudence especially given recent reforms such as Section 137 of the Electoral Act, which states that oral evidence is unnecessary where the documents themselves show clear non-compliance.
The second main leg of the petition deals with the fraudulent collation of election results. This is perhaps the most damning allegation, because it highlights a systematic manipulation of results by the umpire himself. In the Edo election, INEC printed and deployed duplicate results sheets which were used to declare figures that bore no resemblance to what occurred at the polling units. This was of course established by TAP Initiative which took the results to a forensic examiner in South Africa. They have also petitioned ICPC to investigate and prosecute those found culpable. At Polling units, the APC would score 31 votes. This is the result posted on the Irev (the results are still there), but in the declared result certified by INEC you would see the votes recorded for APC in a result sheet not signed by the agent as 431. The position of the Supreme Court on the matter is unambiguous. In the case of Uzodinma v INEC, the Supreme Court held that where improper collation is alleged there is no need to call for polling unit agents as witnesses; since the conduct of the elections is not in dispute.
In its judgment, the Tribunal rejected the evidence of wrong collation because the BVAS machines supplied by INEC were not operated to show the actual results. The Tribunal described the process as ‘dumping evidence before the court’. This is pathetic. The tribunal relied on the words of Justice Okoro to the effect that what is required to prove over-voting is to provide BVAS machine, the accreditation sheets, and result sheet. The Tribunal interprets this to mean that because the INEC’s official who presented the BVAS machine did not operate them, the court cannot presume about the evidence. The irony is that it was the court that ordered INEC tendered BVAS machines. Why did the court not mandate the INEC to operate the machine before the court? Why should INEC’s errors of failure be to the detriment of the victim of its manipulation? It is sad that the tribunal gives INEC the opportunity to violate the law and go free and punish the electorates and the victims of the manipulation by INEC and the politicians.
What the Edo Governorship Tribunal did in effect is to validate an electoral coup executed by INEC. They have allowed INEC to hijack the constitutionally protected power of the citizens to elect their leaders; and have endorsed the deployment of a system that allows INEC handpick winners of electoral contests without recourse to the will of the people. This is not about PDP and APC. This is simply about INEC and how they have become the greatest single threat against our democracy today. It is also about how election dispute adjudication is enabling INEC to continue to usurp the people’s power and play rough through crippling technicalities. If the judiciary allows the travesty that took place in Edo State on September 21, 2024, to stand, then we might as well all go home. 2027 and all other elections will be farcical, impotent rituals used by the ruling class to give the unilateral appointment of political officeholders the imprimatur of democratic responsibility.
This sort of judicial decision on election cases is problematic because they underline the weakness of electoral management system and electoral jurisprudence in Nigeria. If the electoral management process is done right, the judiciary will have little role to play. When it is done badly, and the judiciary too plays its role badly, it creates an incentive for the electoral management to continue to fluff its role in the electoral process at the behest of corrupt and desperate politicians. This vicious circle continues unless the appellate courts reassert its authority to force the electoral management body to do its job right under the law.
The judgement of the Edo Governorship Election Tribunal is a metaphor of how Nigeria has become an electoral autocracy no longer a democracy. Elections are a veneer on oligarchic grasp of power in defiance of what the people do or say.
- Dr. Amadi is the Director of Abuja School of Social and Political Thought
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
