(Why the Umpire Must Prove the Game Fair — On the Senate’s Call to Shift the Burden of Proof in Election Petitions)
By Gbolahan Badru
In what appears to be a ray of light from an empire of darkness, the Nigerian Senate has proposed something that could mark a revolutionary shift in the country’s electoral jurisprudence. It wouldn’t be an exaggeration to say that, most of the time, the Nigerian Senate hardly stirs applause from the public conscience. But this week, the chamber flickered with rare brilliance. Its call for legislative reform — to shift the burden of proof in election petitions from the aggrieved candidate to the Independent National Electoral Commission (INEC) — feels like the most intelligent proposal the Senate has made in recent times.
For once, the institution that supervises the ballot might also be made to defend the sanctity of the process. Because truly, what sense does it make for a man denied fairness to be the one proving the unfairness, while the referee walks away with the whistle?
Quoting Ebun-Olu Adegboruwa (SAN) in a post he made shortly after the Supreme Court’s judgment on the presidential election petition, he said:
“In this particular case, the burden placed upon the petitioners in order to upturn the election was practically insurmountable. To make matters worse, INEC practically fought the petitioners to a standstill, as if it was an interested party in the whole process.”
He continued:
“This is why we emphasise always that the focus of anyone hoping to birth a true change in our electoral history should be on the electoral umpire. Without first unbundling INEC to make it more independent, non-partisan, and effective, anyone declared ‘winner’ will most often coast to victory in the election tribunal. INEC as it is presently constituted cannot birth any credible election in Nigeria.”
In every election, INEC stands as the custodian of truth — the gatekeeper of the people’s will, the digital vault of results, and the holder of the data trail that determines the destiny of millions. Yet, when that truth is questioned, our laws tell the petitioner: “Go and prove it.” We must ask: prove what, exactly? The tampering you never saw? The server logs you never accessed? The BVAS you were never allowed to audit?
This legal irony has long been the bane of electoral justice in Nigeria. The onus of proof rests not on the institution that holds the evidence, but on the victim who has no access to it. It is the jurisprudence of frustration — one that empowers opacity and punishes curiosity.
In Atiku Abubakar & Anor v. INEC & Ors (2019) JELR 91596 (CA), when Atiku and the PDP challenged the presidential election, the court held that INEC’s declared results enjoyed a presumption of regularity. The petitioners sought access to servers and result sheets, yet INEC guarded the materials like sacred relics. Still, the tribunal insisted that it was the petitioners who must prove the irregularities, even though the key evidence remained in INEC’s custody.
Then came Peter Obi & Anor v. INEC & Ors (2023) 19 NWLR (Pt 1917) 1 (SC) — history repeating itself. The Labour Party alleged that INEC failed to upload results to its IReV portal as promised. The Policy and Legal Advocacy Centre (PLAC) later revealed that 73.1 percent of all election petitions that year were dismissed for “failure to discharge the burden of proof.” In essence, the courts demanded that candidates demonstrate non-compliance in systems they never operated, while INEC — the operator — hid behind malfunctioning portals and bureaucratic fog.
Similarly, in Daniel Onjeh v. INEC (Benue South Senatorial Election Petition, 2019), the petitioner complained that electoral materials were being concealed by INEC officials. Ballot papers that should have been available for inspection vanished mysteriously. Yet again, the law required Onjeh — not INEC — to prove the concealment. The custodian became untouchable, while the seeker was burdened.
The story didn’t end there. In Dr. Bright Enabulele & Anor v. Okpebholo Monday & Ors (2025) Legalpedia 62590 (CA), the Edo Governorship Election Petition, INEC closed its case without presenting a single witness, despite allegations of altered BVAS data and irregular serial numbers. Still, the tribunal placed the evidential load on the petitioners. It was a moment that summed up the absurdity of our jurisprudence: the accused remained silent, and the accuser was condemned for lack of proof.
In Taraba, the NNPP’s governorship petition suffered the same fate. INEC argued that the documents tendered were “documentary hearsay” because the petitioners failed to call the makers of the documents — as though ordinary citizens could summon ad-hoc staff and presiding officers one by one to the witness box.
PLAC’s report captured it best: most petitions fail not because there was no irregularity, but because petitioners cannot access the evidence to prove it. That statistic — 73.1 percent dismissed for failure to prove — should haunt any conscience that believes democracy ends with casting a vote. Until the law reverses this imbalance, INEC will remain both the actor and the judge of its own play. The Senate’s proposal, therefore, is not just a legal reform; it is a moral correction — a reminder that neutrality is not a posture but a constitutional duty.
In law, the burden of proof belongs to the party best positioned to provide the evidence. See Afolabi v. Alaremu (2011) 12 NWLR (Pt. 1261) 545 (CA). It is a matter of logic, not sentiment. If INEC alone possesses the result sheets, server logs, and data backups, then INEC alone can show whether due process was followed. Expecting petitioners to prove malpractice without access to these instruments is like asking a blind man to identify the thief in the dark. Therefore, shifting the burden aligns with the very essence of justice.
Accountability must flow from power. Whoever wields the machinery of elections must also bear the responsibility of transparency. In Raila Amolo Odinga & Stephen Kalonzo Musyoka v. Independent Electoral & Boundaries Commission & Ors [2017] KESC 31 (KLR), the Kenyan Supreme Court held that the electoral commission bears the affirmative duty to demonstrate that its conduct complied with the law.
If Nigeria adopts this principle, it will not be reinventing the wheel but realigning with global democratic wisdom — that accountability should strengthen, not weaken, the system.
Anyone who has followed Nigerian election petitions over the years knows that the courtroom is not a sanctuary for the poor, but a coliseum of financial and emotional exhaustion. Candidates spend fortunes chasing Certified True Copies (CTCs) that INEC may delay for weeks, only to be told in court that they failed to prove their claims on the “balance of probabilities” or even “beyond reasonable doubt.” What this system breeds is not justice but resignation. Many genuine grievances die quietly in the shadow of procedural impossibility.
By shifting the evidential duty to INEC, the law would finally level the field — allowing truth, not wealth or proximity to power, to prevail.
Our democracy has, for too long, celebrated candidate heroics instead of institutional integrity. The Senate’s proposal could change that narrative. It would make INEC answerable not to political victors but to the sanctity of the law. It will no longer be enough to conduct elections; INEC must be able to prove they were conducted rightly. When an institution knows it must defend its process in court, it becomes meticulous, transparent, and less tempted by political influence.
If this proposal is legislated and implemented, Nigeria might finally take one decisive step from electoral theatre to electoral truth. The reform would not only correct a legal anomaly but also a philosophical injustice that has plagued our democracy since independence. Because, in the end, democracy is not about who wins — it is about who can prove that the winning was clean and on merit.
References:
- Atiku Abubakar & Anor v. INEC & Ors (2019) JELR 91596 (CA)
- Peter Obi & Anor v. INEC & Ors (2023) 19 NWLR (Pt 1917) 1 (SC)
- Daniel Onjeh v. INEC (Benue South Senatorial Election Petition, 2019) — citation pending
- Dr. Bright Enabulele & Anor v. Okpebholo Monday & Ors (2025) Legalpedia 62590 (CA)
- Raila Amolo Odinga & Stephen Kalonzo Musyoka v. Independent Electoral & Boundaries Commission & Ors [2017] KESC 31 (KLR) (Supreme Court of Kenya)
Badru is a 500-Level Law Student, Usmanu Danfodiyo University, Sokoto
