Being the paper presented by Femi Falana SAN on Updating Nigeria’s Electoral Reforms at the Retreat of the Joint Committee on Electoral Matters supported by Policy & Legal Advocacy Centre held at Lagos from November 16-19, 2023
Between 2022 and 2023, general elections were conducted by electoral bodies in some African countries, including Angola, Kenya, and Nigeria. The petitions filed against the results of the presidential elections declared by the election management bodies in Angola and Kenya were determined within 14 days by the Constitutional Court and the Supreme Court respectively. Even though the general elections in Nigeria took place between February and March 2023, the legal battle to confirm the actual winners of the presidential and legislative elections has just ended while the results of the governorship elections may not be determined by the courts until January 2024. The reason is that the elections shifted from polling booths to the election petition tribunals and the appellate courts.
Specifically, the results of the presidential and legislative elections will be confirmed after 8 months (October 2023) while the results of the governorship elections will be confirmed after 10 months (January 2024). Notwithstanding the shortcomings that characterized the general elections the partial deployment of technology by the Independent National Electoral Commission was responsible for the reduction in the election petitions filed by aggrieved contestants. While 436 post-election petitions have been filed in respect of the 2023 general elections, 807 post-election cases were filed in 2019. In fact, the 2023 general elections have recorded the lowest number of petitions filed against elections conducted in Nigeria since 2003. The reduction in the number of election petitions was largely due to the introduction of the BVAS machines which removed millions of ghost voters from the electoral process.
In this address, we are going to make a case for the conduct of credible elections with a view to minimizing the involvement of tribunals and courts in the electoral process. As the nation’s electoral jurisprudence has become otiose and outdated, we shall review some recent decisions of the Supreme Court and make a case for the deployment of full technology and implementation of the remaining recommendations of the Mohammed Uwais Electoral Reform Panel. It is a review that will require vital amendments of the Electoral Act and the Constitution. In conclusion, we shall critically consider the neocolonial political economy as democracy cannot succeed in an atmosphere of mass poverty.
Lack of commitment to democracy by the political class
Sometime in 2017, I compared the conduct of elections and resolution of election petitions in Nigeria and Kenya. In the well-publicized article entitled “Electoral Justice in Nigeria and Kenya. I called on the national assembly to technologize the electoral process and fast-track the resolution of election disputes by amending the Electoral Act and the relevant provisions of the Constitution. I equally recommended the implementation of fundamental electoral reforms. The suggestions were ignored by members of the political class due to the fact that they are beneficiaries of the dysfunctional electoral system.
It is common knowledge that despite the fact that State Independent Electoral Commissions are headed by retired chief judges and senior lawyers, they conduct the worst elections in Africa whereby the candidates of the ruling party in every state are declared the winners of all chairmanship and councillorship elections. The sole reason for the brazen manipulation is that state governors are not prepared to have elected chairmen and councilors from opposing political camps who may challenge the diversion of the monthly statutory allocations of local government councils.
In many states, democratically elected councils are dissolved or suspended by state governors to pave way for the appointment of caretaker committees and sole administrators to run the affairs of such councils in contravention of section 7(1) of the Constitution of Federal Republic of Nigeria 1999(as amended) which guarantees the existence of democratically elected local government councils. Such executive lawlessness has continued despite the fact that the Supreme Court has repeatedly condemned the frequent dissolution of local governments and appointment of caretaker councils by State Governors on the ground that it is not only illegal but highly undemocratic. See Governor of Ekiti State v. Olubunmi, Bashorun Bosun Mojeed Ajuwon & 10 Ors v Governor of Oyo State & 6 Ors  and Yantaba v Governor of Katsina .
It is equally interesting to note that the political leaders that have accused the Independent National Electoral Commission of mismanaging the 2023 general election performed worse in the conduct of primary elections of majority of political parties last year. In fact, a handful of top party chieftains engaged in the imposition and substitution of candidates. On account of protests by the victims of illegal imposition or substitution of candidates, a total of 1,878 pre-election cases were filed in 2022 whereas only 370 pre-election cases were filed in 2019.
No doubt, the political leaders and senior lawyers who are dissatisfied with the results of the 2023 presidential election have suddenly embraced the Kenyan model and recommended the implementation of the recommendations of the Mohammed Uwais Electoral Reform Panel. However, the demand for electoral reforms by members of the political class smacks of hypocrisy. For instance, a former head of state who has suddenly become an advocate of credible elections introduced violence which marred the 2003 general election and claimed the lives of hundreds of voters. The state of anomie was vividly captured in Buhari v. Obasanjo by Pat-Acholonu JSC when he condemned the “nationwide spread of ineptitude, violence, intimidation and other acts of terrorization” witnessed during the election.
The same political leader proclaimed the 2007 election as a “do or die affair” for the ruling party. As if that was not enough, he made a dangerous attempt to scuttle the democratic process with an ill-fated third term agenda. And when the anti-democratic agenda failed woefully, he colluded with INEC to turn the 2007 general election into a lousy mockery of democracy. Thus, the result of the 2007 presidential election was almost annulled as it was decided on a narrow margin of 4-3 Justices of the Supreme Court. Thankfully, President Umoru Yaradua was honest to admit that the election which brought him to power was “highly flawed”.
Matters arising from Uwais Electoral Reform Panel
In order to put an end to the disgraceful conduct of elections and the political culture of violence and manipulation of election results, the President proceeded to set up the Mohammed Uwais Electoral Reform Panel. The 22-member Panel collated the views of the Nigerian people and made profound recommendations which were submitted to the federal government. The highlights of the Uwais Electoral Reform Panel include the procedure for transparent appointment and removal of chairman and members of INEC, unbundling of INEC, independent funding for INEC, proportional representation, independent candidates, fixing of dates of elections, composition of election tribunals, time for determination of election petitions, and shifting of onus of proof in election petitions.
Apart from the rejection of the appointment of the INEC board by advertisement, the Yar’Adua administration accepted most of the other recommendations of the Uwais Panel. As he could not implement them before his demise in May 2010, his successor, former President Goodluck Jonathan adopted some recommendations and forwarded the entire report to the National Assembly for consideration. No doubt, the 2010 Electoral Act and the amendment of some provisions of the Constitution in 2011 were influenced by the report of the Uwais Panel, but the principal recommendations were jettisoned.
It is pertinent to note that the Ahmed Lemu Panel set up by the Goodluck Jonathan administration to investigate the violence that occurred in 12 states in the North and Akwa Ibom in the south after the announcement of the results of the presidential election in April 2011 made a strong case for the implementation of the far-reaching recommendations of the Uwais Panel. The ACN and CPC which later merged and became the All Progressive Congress (APC) campaigned vigorously for the implementation of the recommendations of the Panel. As National Leader of the APC, Asiwaju Bola Tinubu set up a body called the Coalition of Democrats for Electoral Reforms which campaigned for the adoption of the electoral reforms recommended by the Uwais Panel.
However, the report of the Uwais Panel was revisited when Professor Attahiru Jega became the Chairman of INEC in 2010. As a former member of the Panel, Jega made a strong case for the recommendations of the Panel. Specifically, he ensured the implementation of the recommendations on independent funding for INEC, appointment of dates for elections by INEC, fixing of 180 days for determination of election petitions, establishment of the Centre for Democratic Studies and delineation of constituencies.
Electoral Reforms by Buhari administration
In 2016, the Muhammadu Buhari administration instituted an Electoral Reforms Panel headed by a former senate president, Mr. Ken Nnamani. The panel was tasked “to review the electoral environment, laws and experiences from recent elections conducted in Nigeria and make recommendations to strengthen and achieve the conduct of free and fair elections in Nigeria.” At the end of its assignment the panel recommended the unbundling of INEC, participation of independent candidates, diaspora voting and the use of technology for elections.
Aside the introduction of partial technology the Electoral Bill signed into law by President Buhari in 2022 did not adopt other recommendations of the Ken Nnamani Panel. In fact, certain provisions of the law are designed to frustrate the conduct of credible elections in the country. For instance, section 31 of the Electoral 2010 that permitted members of the public to challenge any false information contained in the nomination forms submitted by candidates contesting elections was removed in the 2022 Electoral Act. In the same vein, section 285 of the Constitution was amended to limit the power to challenge disqualification of candidates to members of political parties.
The jurisdiction to hear pre-election cases has been conferred on the Federal High Courts alone. While exclusion of names of candidates and political parties from the ballot by INEC can no longer be a basis to nullify elections that have been conducted the law has failed to provide any remedy for such exclusion. In spite for the popular call for the establishment of an electoral offences commission to deal with the menace of rigging, manipulation of election results and violence, the law has empowered INEC to prosecute electoral offenders.
The Way Forward
Between 2008 and 2016, Nigeria set up three electoral panels for the sole purpose of reforming the electoral system. But the fundamental recommendations of the panels have been ignored by successive administrations. In view of the fact that Nigeria has repeatedly failed to deliver credible elections there has arisen the urgent need to overhaul the electoral process to make it more democratic, accountable and acceptable. The objective cannot be achieved without the adoption of full technology in the electoral system, appointment of independent electoral authorities and substantial reduction of involvement of judges in the determination of outcome of elections.
In addition, the implementation of the remaining recommendations of the Uwais Electoral Reform Panel has become a desideratum. Therefore, we suggest that the said recommendations be incorporated with necessary modifications in the proposed amendment of the Electoral Act 2022 and the 1999 Constitution. While the National Assembly has rightly rejected the call for independent candidates we invite the Nigerian people to consider the following recommendations:
1. Procedure for appointment and removal of chairman and members of INEC
In order to ensure the independence and neutrality of INEC, the Uwais Panel had recommended that members of the commission should not be appointed by the President. The National Judicial Council, NJC is tasked with the duty to: advertise the positions, spelling out requisite qualifications; receive applications/nominations from the general public; shortlist three persons for each position and send the nominations to the National Council of State to select one for each position and forward same to the Senate for confirmation.
The Chairman and members of the INEC commission may only be removed by the Senate on the recommendations of the National Judicial Council, (NJC) by two–third majority of the Senate which shall include at least 10 members of the minority parties. It is suggested that the same procedure be adopted in the appointment and removal of resident electoral commissioners and members of state independent electoral commissions.
Unbundling of INEC In order to allow INEC to fully concentrate in conducting general elections, the Uwais panel recommended the unbundling of the INEC into Political Parties Registration and Regulation Commission; Electoral Offenses Commission, Constituency Delineation Commission, and Centre for Democratic Studies. The Centre for Democratic Studies was established by the Independent National Electoral Commission under the Chairmanship of Professor Attahiru Jega.
Political Parties Registration and Regulatory Commission (PPRRC) The Political Parties Registration and Regulatory Commission (PPRRC) shall register political parties in accordance with the provisions of the 1999 Constitution and the Electoral Act, monitor the organisation and operation of the political parties, including their finances, arrange for the annual examination and auditing of the funds and accounts of political parties; monitor political campaigns and provide rules and regulations which shall govern the political parties, accredit domestic and international election observers and provide rules and regulations which shall govern their conduct and observation of elections.
Electoral Offences Commission In order to stop the increasing wave of electoral impunity the Uwais Panel had recommended the establishment of an autonomous and constitutionally recognised Electoral Offences Commission. The body is to be empowered to investigate and prosecute political violence; electoral fraud, political terrorism and other electoral offences and enforce the provision of the Electoral Act, the constitutions of registered political parties and any other Act or enactments.
The Senate passed the Electoral Offences Commission Bill on July 14, 2021 and forwarded same to the House of Representatives. But the Bill was ignored due to reasons best known to the members of the House of Representatives. Hence, section 145 of the Electoral Act 2022 has vested the Independent National Electoral Commission with the statutory duty to prosecute electoral offenders in the Federal Capital Territory and the 36 States of the Federation. The National Assembly should reintroduce the Bill and pass it without any further delay.
Proportional Representation By virtue of section 14(1) and (2) of the Constitution, the federal republic of Nigeria shall be a country based on the principles of democracy and social justice. Accordingly, sovereignty belongs to the people from whom government through the Constitution shall derive all its powers and authority. It is also stated that the participation by the people in their government shall be ensured in accordance with the provisions of the Constitution. In addition, article 13(1) of the African Charter on Human and Peoples Rights which provides that “every citizen shall have the right to participate in the government of their country, either directly or indirectly or through chosen representatives in accordance with the provisions of the law.”
But contrary to the Constitution and the African Charter which provide for popular democracy the members of the political class have excluded the people from political participation through monetization and manipulation of the democratic process. In the recent past, INEC provided funds for the running of political parties. The mischief that the law wanted to cure was to prevent the control of political parties by money bags. As soon as the practice was stopped, state governors and the President took over the funding and control of political parties. The country should restore the provision of the Electoral Act that permitted INEC to fund political parties.
The Uwais Report recommended a combination of proportional representation and the majoritarian rule of representation at federal, state and local levels. The mixed system requires the creation of additional 30 percent of the existing legislative seats in the national, state and local government levels for the purposes of proportional representation. The Constitution and the Electoral Act should be amended to provide for proportional representation as it will promote democracy and enhance the growth and performance of genuine political parties in Nigeria.
In Women Empowerment and Legal Aid v. Attorney-General of the Federation the federal high court upheld affirmative action and ruled that women are entitled to 35 representation in all public appointments. Accordingly, the Electoral Act should be amended to provide that not less than 35 percent elective positions shall be reserved for women by every political party. Section 147 of the Constitution amended last year has reserved not less than 10 percent positions to women in appointments. The provision should be further amended to provide not less than 35 percent.
Screening of Candidates Under the 2006 Electoral Act, the Independent National Electoral Commission was exclusively saddled with the responsibility to screen candidates sponsored by political parties to contest elections. At the material time, candidates with questionable credentials were disqualified and barred from contesting elections by the INEC. But the political class amended the Electoral in 2010 and transferred the power to screen candidates to the political parties. As if that was not enough, the law was further amended in 2022 to bar non-members of political parties from challenging the qualification of candidates sponsored by political parties to contest elections.
In exercising the power to screen candidates, members of the screening committees set up by political parties allowed candidates who are not qualified to contest elections. In fact, many candidates who are not qualified to contest elections were imposed by party chieftains. In the past, in many pre-election cases, the nomination of candidates was challenged on the ground that they lack the requisite qualifications to participate in party primaries or general elections. The courts never hesitated to disqualify candidates who did not meet the constitutional requirements. But under the Electoral Act 2022 and section 285(14) of the Constitution, cases filed to challenge the nomination of unqualified candidates are dismissed by the courts based on the principle of forum domesticum.
As political parties have abused the power to screen candidates by allowing unqualified candidates to contest elections it is suggested that the screening of candidates should be the sole responsibility of the Political Parties Registration and Regulatory Commission. Furthermore, section 31 of the Electoral Act which empowered any member of the public to institute an action to challenge candidates who might have given false information in their nomination forms should be restored in the proposed amendment of the Electoral Act.
Involvement of judges in elections In a paper entitled “The tribunalisation of democracy in Nigeria”, I argued against the increasing involvement of courts in the management of elections as judges are not suited to determine the winners of elections. Because the courts had resorted to technicalities in a number of political cases in the recent past and thereby awarded victories to those who never won elections the judiciary is in the eye of the storm. In recognition of the dilemma in which the judiciary has found itself the Chief Justice of Nigeria, the Honourable Justice Olukayode Ariwoola has warned tribunal judges to shun money and technicalities in deciding the election disputes. But the advice was apparently ignored to the detriment of the integrity of the judiciary.
Electoral law and technology The over bearing influence of the judiciary in the resolution of electoral disputes has continued to expose the judiciary to ridicule and question the legitimacy of the democratic process. A situation whereby candidates are no longer elected by the electorate but by courts and tribunals on technical grounds is a judicial subversion of democracy. The dangerous trend has to stop. All stakeholders should insist on the immediate adoption of a transparent electoral system that is devoid of manipulations by compromised electoral bodies and corrupt politicians. It is pertinent to review some of the decisions of the electoral tribunals and courts with a view to suggesting ways of reducing electoral disputes to the barest minimum.
It is worthy to note that the use of BVAS machines eliminated the inflation of votes during the 2023 general elections. Hence, many politicians lost their elections. In particular, many sitting senators lost their seats while some governors failed to win senatorial elections. In the celebrated case of Oyetola v INEC, the Supreme Court addressed the issues surrounding the use of BVAS machines for accreditation, electronic transmission of results from BVAS machines and voters register under the Electoral Act.
Upon a review of the provisions of sections 47(1)(2) and 51(2) of the Electoral Act 2022, Regulations 14, 16, 19(b)(iv), (e)(-) and 48(a) of the INEC Regulations and Guidelines for the conduct of 2022 the apex court curiously held that the production of Bimodal Verification System Machines and register of voters are required to prove non accreditation of voters or over voting in the trial of election petitions. It was further held and that the law does not require a presiding officer of an election in a polling unit to transmit the particulars or number of accredited voters recorded by the BVAS to the INEC data base. In the case of Atiku Abubakar v Bola Tinubu the Supreme place heavy reliance of its decision in the case of Oyetola v INEC.
With respect, the position of the Supreme Court cannot be justified under the Electoral Act 2022. Nowhere is it stated in the law that petitioners shall engage in the cumbersome and laborious task of producing BVAS machines before election petition tribunals. Therefore, the report downloaded from BVAS machines by INEC is sufficient to prove voter accreditation. The finding of the apex court that the transmission of election results from polling units is at the discretion of INEC is at variance with section 66 of the Electoral Act and the Guidelines issued by INEC.
Apart from the Guidelines, the principal officers of INEC undertook to transmit the results of the elections. It is submitted that INEC was legally bound to transmit the results under the doctrine of promissory estoppel. It is interesting to note that INEC did not deny its responsibility to transmit the results but that the failure to transmit the results was based on technical glitch. Instead of saying that transmission of results was optional the Presidential Election Petition Tribunal and Supreme Court ought to have interrogated the reason adduced by INEC for not transmitting the results.
But in view of the authoritative pronouncements of the Supreme Court on voter accreditation and transmission of election results, we are compelled to call on the national assembly to amend the Electoral Act to compel the presiding officer in every polling unit to transmit the particulars or number of accredited voters recorded by the BVAS machines to the INEC data base. Furthermore, in proving lack of accreditation of voters or over voting it should be sufficient to produce the report of the Bimodal Verification System Machines and register of voters.
Holding elections on the same day
The 2023 general elections gulped N350 billion. In order to reduce the enormous costs of holding two elections, it is suggested that the Electoral Act be amended to empower INEC to appoint a single day for conducting Presidential, Gubernatorial, National and State Assembly elections, at least six months before the expiration of the term of the current holders of the offices. During the six months interval, all election petitions and appeals arising therefrom should be heard and determined.
Determination of pre-election cases before elections It is settled law that a member of a political party lacks the locus standi to question the nomination of the candidate of another political party. In Peoples’ Democratic Party v All Progressives Congress the Supreme Court held that “Section 285(14)(c) of the constitution only allows a political party to challenge the decisions and activities of INEC disqualifying its own candidate from participating in an election.” The right to challenge candidates who are not qualified to contest elections should not be made the internal affairs of political parties. Concerned citizens should be vested with the locus standi to challenge the competence or qualification of candidates, as was the case under section 34 of the Electoral Act 2010.
It is not uncommon for pre-election cases to be determined after the conduct of election and declaration of winners. Thereafter, some courts turn round to annul the results of elections on the ground that the winners were not qualified to have contested the elections. It is a mockery of democracy for courts to disqualify candidates who might have contested and won elections. Therefore, all pre-election cases should be determined and concluded before the conduct of elections.
Determination of election petitions before inauguration of new governments. It is submitted that section 285(6) of the Constitution of Nigeria which provides for 8 or 10 months for resolution of electoral disputes will no longer be applicable once the electoral process is fully technologized. In other words, time will be abridged once INEC is compelled to use BVAS machines for voter accreditation and transmission of election results from each polling unit to its central server.
It is therefore suggested that the Electoral Act be amended to provide for filing of election petitions within 14 days after elections and determined by election petition tribunals within 30 days thereafter. Appeals arising therefrom should be filed within 14 days and determined within 30 days. Appeals arising from governorship election petitions should terminate at the Court of Appeal as was the case before 2011. Furthermore, the proposed amendments of the Constitution and the Electoral Act should make it mandatory for the courts to conclude all election petitions before the inauguration of newly elected governments. In 1979 and 1999, all election petitions were concluded before the inauguration of the President and other elected officials.
Procedure for filing pre-election cases Pursuant to the powers conferred on the Federal High Court to hear all pre-election cases the Chief Judge directed that originating summons be adopted for commencing such matters. The purpose was to speed up the hearing of pre-election cases. Surprisingly, in the appeal of Lawan v Machina, the Supreme Court allowed the appeal on the ground that the suit was erroneously commenced by originating summons. In the leading judgment of the Court, Nweze JSC held that given that there were allegations of fraud, they ruled that they should have started with a Writ of Summons.
In the minority decision of two other Justices (Agim JSC and Jerro JSC) the majority judgment was faulted on the ground that the election that produced Lawan was illegal and conducted in violation of the Electoral Act, 2022. It was further pointed out that the issue of fraud was not raised in the affidavit in support of the originating summons. In view of the current state of the law, the Electoral Act should be amended to enable the Chief Judge to prescribe any procedure for commencement of pre-election cases.
Onus of proof of election petitions Under the Electoral Act, a petitioner is required to prove irregularities and non-compliance with the electoral law and that the irregularities and non-compliance with the electoral law have affected the results of the election. In Buhari v Obasanjo (supra), Pats-Acholonu JSC alluded to the impossibility of proving election petitions by a petitioner under the law when he said that “The very big obstacle that anyone who seeks to have the election of the President or Governor upturned is the very large number of witnesses he must call, to the size of the respective constituency. In a country like our own, he may have to call about 250,000 – 300,000 witnesses.”
However, with the introduction of technology, a petitioner is no longer required to call hundreds of witnesses to prove malpractice or non-compliance with the Electoral Act. In order to relieve petitioners the burden of proving election petitions the Uwais Panel had recommended that the onus of proving that an election was conducted in substantial compliance with the electoral law. As the adoption of the recommendation will lead to a proliferation of election petitions, the recommendation should not be adopted.
Under the current electoral law, petitioners are compelled to apply for election materials from INEC, plead and frontload them, and proceed to invite or summon witnesses to give oral testimony or tender documents within the time stipulated by law. It is suggested that once an election is concluded, INEC should be compelled to furnish intended petitioners with copies of election materials within 7 days. In addition, the petitions should be served on the INEC at its headquarters and other respondents either directly or at the secretariats of relevant political parties.
Documents admitted by tribunals are not dumped In proving an election petition parties may decide to tender election materials without calling witnesses to speak to them. Even though they are admitted some tribunals have questioned the reliance placed on such exhibits on the ground that witnesses did not give oral evidence to prove them. It is said that such exhibits are dumped on the tribunals and therefore should not be relied upon by Judges. With respect, no provision of the Electoral Act precludes a court from using and relying on documents which were properly tendered, admitted in evidence and marked as exhibits. Indeed, by virtue of 109, 111 and 112 of the Evidence Act, public documents like INEC forms can be tendered from the bar without calling the makers of such documents.
Similarly, sections 76 and 132 of the Evidence Act state that no oral evidence can be given to prove the content of a document. Nigerian courts should jettison the theory of dumping evidence as documents tendered and admitted in evidence are subject to scrutiny to ascertain their essential value and attach necessary weight to them. In Arabambi vs. Advance Beverages Industries Limited , Tobi JSC (of blessed memory) stated the law correctly when he had this to say:
“A judge takes all evidence given in court. i.e. oral and documentary et al, and at the end of the day after evidence have been concluded, he retires to his Chambers or even his residence as it is always the case, to consider and appraise all the evidence. He cannot, and he is not expected to do this in open court, and in the process of hearing the case or trial.
A learned trial judge while evaluating evidence is at liberty to examine and peruse most carefully documents and if he fails to do so he is failing in this duty. In fact, even where necessary, a judge ought to comb to ensure that the credibility of the evidence is ascertained and applied towards the just determination of the case. If doing that is what the learned senior counsel say is tantamount to private investigation, then it is most unfortunate.”
In view of the above decision, it is submitted that an election petition tribunal has the duty to look at exhibits tendered before it and make necessary findings. While judges can be excused for making a wrong conclusion from exhibits they cannot be pardoned for failing to look at admissible documentary evidence. Our election petition tribunals and courts are urged to desist from the illegal practice of requiring witnesses to give oral evidence to confirm or vary the contents of exhibits that have been properly admitted.
Constitution of election petition tribunals During an election year, hundreds of Judges are selected from the federal high court, state high courts and national industrial court by the President of the Court of Appeal to hear and determine election petitions. The selected Judges are posted to serve outside their geopolitical zones to prevent them from undue influence. The regular cases handled by the tribunals and courts are adjourned for 6 month or more. Since parties are equal before the law it is unjust on the part of Judges to ignore fundamental rights cases or criminal cases in order to attend to election cases.
I have repeatedly advocated for the appointment of retired Judges as members of election petition tribunals. While the suggestion has been accepted by stakeholders the issue of discipline of retired judges has been raised since they are no longer under the control of the National Judicial Council. If the suggestion is accepted it will require an appointment of the Constitution to empower the NJC to discipline retired judges who are appointed to perform judicial functions.
It is disturbing to note that the President of the Court of Appeal has been compelled to grant the request of concerned persons to relocate election petition tribunals sitting in five states to the federal capital territory because the lives of tribunal judges and lawyers cannot be guaranteed. Instead of relocating election petition tribunals, the Nigeria Police Force and other security agencies ought to have been directed to provide adequate security for judges, lawyers and witnesses involved in election petitions. It is unacceptable for a government which controls the monopoly of violence to relocate courts because of threat to the lives of Judges by political thugs.
On democracy and political economy
In his inaugural speech on May 29, 2023, President Bola Tinubu took Nigerians by surprise when he said that “fuel subsidy is gone.” In implementing the directive of the President, the Nigerian National Petroleum Corporation Limited announced that the prices of petroleum product would henceforth be fixed by market forces. The policy led to sharp increases in the prices of petroleum products. At about the same time the Bola Tinubu administration directed the Central Bank to floating the Naira and allow market forces to fix the exchange rate of the national currency visavis other currencies.
Owing to the reverberating effects of the removal of fuel subsidy and floating of the Naira the prices of goods and services have gone out of the reach of majority of citizens. Consequently, poverty has been on the increase. To compound the economic crisis the Central Bank has failed to arrest the dollarization of the economy. While Nigerians are groaning under the excruciating economic pains the International Monetary Fund and the World Bank have lauded the neoliberal policies of the federal government. Meanwhile, both Bretton woods institutions have failed to join the demand of the Nigerian people for investigation of the fuel subsidy scam and foreign exchange fraud.
It is submitted that the decision of the Bola Tinubu administration to allow market forces to determine the exchange rates and prices of petroleum prices without control is illegal as it violates section 16(2)(a) of the Constitution which provides that the State shall direct its policy towards ensuring that “the promotion of a planned and balanced economic development.” It is further submitted that neither the Central Bank Act nor the Petroleum Industry Act supports the fixing of exchange rates and prices of petroleum products by market forces without control by the federal government.
The recent removal of elected governments by the armed forces in some African countries and the threat of a coup in the United States in January 2021 have shown that democracy cannot be taken for granted in any country. I have come to the conclusion that democracy cannot survive in any country where the majority of the people are said to be “phenomenally poor” while the members of the political class have cornered the commonwealth with the connivance of imperialism. The point that I am struggling to make is that the implementation of neoliberal policies in Nigeria and other African countries constitute the greatest threat to democracy. I am therefore compelled to call on progressive forces to organize and mobilise the people to defend democracy and economic development. In particular, the Bola Tinubu administration should be challenged for allowing abdicating its responsibility to run the country to market forces.
The federal government has given the impression that there is no alternative to the management of the national economy by market forces. We insist that the federal government is duty bound to fix the country’s refineries and build new ones to stop the reckless importation of petroleum products; to fix the prices of petroleum products and other essential services and determine the exchange rate of the Naira visavis other currencies. These are obligations that cannot be handed over to market forces as dictated by the Bretton woods institutions. Therefore, we call on the Nigerian people to reject the continued execution of neoliberal economic policies that have continued to multiply poverty and inequality in the land.
It is interesting to note that despite the corrupt practices and profligacy of the ruling class as well as leakages in the economy the World Bank has continued to give loans to the federal government. While insisting on the payment and servicing of such loans the World Bank has not challenged the federal government for channeling huge public funds to buy exotic cars for members of the executive and legislative organs of government.
It is my submission that the increase in the prices of petroleum products; merger of exchange rates; devaluation of the Naira through dollarization; increase in electricity tariffs; re-introduction of tuition fees in tertiary institutions and implementation of other neoliberal policies by the federal government have compounded the crisis of underdevelopment in the country. It is high time the federal government was compelled to comply with article 21(5) of the African Charter on Human and Peoples Rights which has imposed a duty on States Parties to the Charter to “undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantage derived from their national resources.”
Internal Democracy in political parties
The Electoral Act 2022 has made adequate provisions for internal democracy in political parties. But the parties are run like government parastatals. Hence, the President claims to be the national leader of the ruling party. But the Electoral Act does not recognize the President as the leader of the ruling party. Therefore, members of party members should stop the President and Governors from hijacking the political parties. The imposition of candidates by a cabal in the4w parties should stop.
In the above analysis, we have pointed out that Nigeria cannot conduct credible elections without amending the relevant provisions of the Constitution and Electoral Act to provide for the appointment of INEC members by advertisement, deployment of technology for accreditation of voters and transmission of election results from polling units to the central server of INEC. Once the electoral process is fully technologized the proof of election petitions will be based on the BVAS reports and uploaded results. The onus of proof of conduct of credible elections should shift to INEC and winners of elections. The question of dumping election materials will not arise as they would be produced and certified by INEC.
Democracy cannot be consolidated where the masses are asked to tighten their belts while elected public officers are paying themselves jumbo salaries and allowances. Since democracy is under threat due to mass poverty the political system must address the welfare and security of the people. As a matter of urgency, progressive forces must compel the federal government to reverse the removal of fuel subsidy, investigate the fuel subsidy scam; speed up the rehabilitation of the nation’s refineries and build new ones; stop the floating of the Naira and stop the devaluation of the Naira through dollarisation, cancel the planned increase in electricity tariffs and reintroduction of tuition fees in tertiary institutions.
Finally, permit me to point out that Nigeria has enough money to pay her debts incurred by the plutocratic ruling class, provide electricity, free education, free healthcare and other social services for the people. Since members of the ruling class will not willingly provide for the needs of the people, I call on Nigerian workers and allies in the civil society to organize for the socialist reconstruction of the country. My view is that the fundamental objectives enshrined in chapter two of the Constitution cannot be actualized under this peripheral capitalist system.
 . https://saharareporters.com/2017/09/10/electoral-justice-kenya-and-nigeria-femi-falana
 . (2017) 7 WRN 1 SC
 . (2021) 16 NWLR (Pt 1803) 485
 . (2022) 1 NWLR (PT. 1811) 259
 . (2005) 50 WRN 1 at 311
 . (Unreported) Suit No: FHC/IKJ/CS/M128/2010
 . https://thenigerialawyer.com/tribunalisation-of-democracy-in-nigeria-by-femi-falana-san
 . (Unreported Suit No: SC/CV/508/2023 of May 9, 2023)
 . (Unreported Suit No SC/CV/501/2023)
 . (2006) All FWLR (PT 295) 518 at 603
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