By Onikepo Braithwaite
Shifting the Burden of Proof to INEC in Election Petitions
Last week, we heard about the Senate’s Electoral Amendment Bill 2025, which is said to include several proposals, such as early voting for those involved in election-day duty; making the electronic transmission of results mandatory; shifting the burden of proof in election petitions to the Independent National Electoral Commission (INEC) and giving prison inmates voting rights. The last two proposed amendments, caught my attention.
I’m not quite sure that I understand, how shifting the burden of proof to INEC in election petitions, makes legal sense. This proposal could be borne out of the fact that being able to win an election petition as a Petitioner, even with a compelling case, is usually more than an uphill task, and mostly unsuccessful – see Wike v Peterside (2016) LPELR-40036 (SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN); Maku v Al-Makura & Ors (2016) LPELR-48123(SC) per Walter Onnoghen, JSC (later CJN).
Though the burden of proof in election petitions can be discharged on a balance of probabilities, proving electoral malpractice or INEC’s non-compliance with the Electoral Act 2022 (EA) can still be a Herculean task. In Wike v Peterside (Supra) per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC (now CJN), the Apex Court held that the Petitioner “must prove it polling unit by polling unit, ward by ward, and the standard of proof is on the balance of probabilities. He must show figures that the adverse party was credited with, as a result of the non-compliance”. Also see Section 135(1) of the EA. Most Petitioners are unable to provide the results and polling agents to testify, from each and every polling unit they complain about.
For example, during the proceedings in the 2023 Presidential Election Petition Tribunal (PEPT), the Petitioners complained of about 18,000 polling units. One Petitioner had only 13 witnesses, out of which only 3 filed their statements on oath alongside the Petition. Specific polling units were not named, results weren’t tendered, nor did polling agents attached to each polling unit complained about, testify. The PEPT concluded that, those who testified were not octopuses with tentacles extending to all the polling units and collation centres in Nigeria, and that they could only testify about the polling units where they had been physically present. That relying on third party information to analyse results of polling units where they weren’t physically present, amounted to presenting hearsay evidence, which is inadmissible in law. See Sections 37 & 38 of the Evidence Act 2011 (EVA). Also see Atiku & Anor v INEC & Ors (2023) LPELR-61556(SC) per John Inyang Okoro, JSC. Alongside this arduous task, another reason sometimes advanced for the seemingly disadvantageous position of the Petitioner, is said to be INEC’s sluggish or seemingly reluctant attitude towards providing materials to Petitioners to support their election petitions. But, can this be enough reason to turn legal procedures upside down? I think not.
If the Senate is enacting an amendment stating that, as a result of the time lines set in Section 285 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), INEC is obliged to make available all materials requested for by parties to election petitions within 5 days that such requests are made, to ensure that constitutional deadlines for filing process related to the petitions are met, that is understandable and required, because of the aforementioned complaint of sluggishness on the part of INEC.
However, there are two principles of law that easily come to mind, which make this proposed amendment to shift the burden of proof in election petitions to INEC, sound somewhat bizarre: 1) Section 168(1) of the EVA which has a presumption of regularity of official acts; and 2) The maxim, he who alleges must prove. It is trite that election petitions are ‘sui generis’, meaning that they are in a class of their own, unique, and they do not fit into the normal civil or other procedure classification, but, have their own separate rules. See Atiku & Anor v INEC & Ors (Supra). In Buhari & Anor v Yusuf & Anor (2003) LPELR-812(SC) per Samson Odemwingie Uwaifo, JSC, the Supreme Court held thus: “So, an election petition is neither seen as a civil proceeding in the ordinary sense nor, of course, a criminal proceeding. It can be regarded, as a proceeding sui generis”. But, would being sui generis be to the extent that, basic legal principles are turned on their heads?
How would this shift in the burden of proof to INEC even work? What does the burden of proof on INEC’s part entail? In Alagbaoso v INEC & Ors (2023) LPELR-59702 (SC) per Helen Moronkeji Ogunwumiju, JSC, the powers of INEC to organise, undertake and supervise elections were restated. If INEC’s role in an election petition goes beyond presenting the results it has declared or making available the relevant BVAS machines, result sheets etc when asked for same, and it extends to disproving the Petitioner’s claims, wouldn’t this be tantamount to INEC, a supposedly neutral party whose constitutional role is to conduct elections, descending into the arena? See Section 78 of the Constitution and Alagbaoso v INEC & Ors (Supra).
1) Presumption of Regularity of Official Acts
In Ucha & Anor v Elechi & Ors (2012) LPELR-7923 (SC) per Olabode Rhodes-Vivour, JSC, the Supreme Court held inter alia that: “The results declared by INEC are prima facie correct….”. Similarly, in Ogbuanyinya & Ors v Okudo & Ors (1990) LPELR-2294(SC) per Adolphus Godwin Karibi-Whyte, JSC, the Supreme Court held inter alia thus: “….where there is no evidence to the contrary, things are presumed to have been rightly and properly done. This is as expressed in the common law maxim in latin: omnia praesumuntur rite esse acta. This presumption is very commonly resorted to and applied, especially with respect to official acts”.
The implication of shifting the burden of proof to INEC is firstly, that the presumption of regularity of elections is removed, meaning that results declared by INEC will not be taken as prima facie correct, and INEC will now have the burden of proving they are correct Every election conducted will then be challenged by all Petitioners, even when they have absolutely no grounds to stand on, since they no longer have to prove their allegations, as that burden would have been shifted to INEC, to prove that it conducted good elections. Normally, INEC’s conduct of elections and declaration of results have a presumption of regularity unless it is proven otherwise, which would mean that the burden of proof should be on the Petitioner who alleges foul play, to prove the irregularity alleged. See Ogbuanyinya & Ors v Okudo & Ors (Supra) on whom lies the duty to rebut the presumption of regularity.
Saying that INEC should discharge the burden of proof, isn’t just tantamount to stripping the Commission of the presumption of regularity for official acts, it is akin to saying that INEC is guilty, until it proves itself innocent – the inquisitorial system, as opposed to the adversarial system Nigeria purportedly operates, where an accused person is supposed to enjoy a presumption of innocence until proven guilty – see Section 36(5) of the Constitution.
2) He Who Alleges Must Prove
In Ucha & Anor v Elechi & Ors (Supra) per Mahmud Mohammed, JSC (later CJN), the Supreme Court held that “the onus remains on the Petitioners to prove and establish their claims on their own evidence, without relying on the weakness of the case of the Respondents”. This is a restatement of the cardinal legal principle that, he who alleges must prove his/her assertion. Also see Agbakoba v INEC & Ors (2008) LPELR-232 (SC) per Christopher Mitchell Chukwuma-Eneh, JSC. Shifting the burden of proof on INEC, is akin to putting INEC in the position of the Petitioner who has to prove their case! That would be weird.
Isn’t it elementary that it must be the person who alleges in his/her election petition that an election is irregular, or that there was non-compliance with the EA, that must prove the reasons behind that allegation? See Section 131-134 of the EA and Maku v Al-Makura & Ors (Supra) per Walter Onnoghen, JSC (as he then was). But, with this proposal, it appears that all a Petitioner has to do is present a petition with unsubstantiated allegations, fold their arms and leave INEC to be the one to disprove the allegations. So, for instance, if a Petitioner alleges that the Respondent’s credentials are forged, forgery is a criminal offence that has to be proved beyond reasonable doubt by the person who alleges it. With this shift in the burden of proof, would it then be INEC, who didn’t make the allegation, that must prove that the certificate is forged? Sounds strange.
I believe that this is a matter that requires deeper consideration, as the consequences of this proposal will most likely result in absurdity.
Prison Inmates’ Voting Rights
The EA Amendment Bill, proposes voting rights for prison inmates. There is probably nothing altruistic, about this proposal of voter’s rights for prison inmates. Every Nigerian knows that, the conditions in the Correctional Facilities are deplorable. In a piece I wrote in 2017 titled “Imprisonment in Nigeria: A Fate Worse than Death”, I compared the conditions in Nigerian prisons to that of Antanimora Prison, Madagascar, one of the worst prisons in the world. See Sections 17(2)(c) & 34(1) of the Constitution on the right to dignity and humane treatment. So, since Government, including the Legislators, do not appear to be particularly concerned about the welfare of inmates, why would they be concerned about whether they vote or not? It is obvious that this proposal must be driven by the self-interest of politicians, possibly a way to garner more votes. Call me cynical or sceptical, but, it is more likely that the reason for this proposal is so that the prisoners can be manipulated to vote in whatever way the powers that be may desire.
Generally, many countries do not allow prisoners to vote, possibly because there is a belief that committing a crime takes away the right to vote. Some countries such as Norway and Denmark, however, do allow prisoners to vote. In the US, voting rights for prisoners vary from State to State. But, even where prisoners are free to vote, they face obstacles trying to complete the voting process.
Conclusion
While some of the proposed amendments to the EA may be welcome, what would be most welcome is, in reality, a stronger and much improved electoral process. Nigeria needs to learn from the mistakes of the 2023 general election outing, and concentrate upon perfecting the electoral process, instead of encouraging a fresh round of fruitless national debates. After all, the 2027 general elections are almost upon us; the party primaries will be conducted in 2026.
Onikepo.braithwaite@thisdaylive.com
