By Tunde Ahmed Adejumo
Mr. Mike Igini, former INEC’s Resident Electoral Commissioner, recently stated on Arise TV that the judiciary in Nigeria has never been on the side of the electorate and that all the problems in the country’s electoral system today can be blamed on the judiciary.
Although his statement resonates and enjoys widespread popular support, it does not hold up under careful examination. It is very unfair, reduces a complex issue to oversimplified terms and fails to account for the deeper political and structural issues that influence our elections.
Firstly, it should be said that in a constitutional democracy, the judiciary is not meant to be on the side of any group, neither the electorate, nor political parties, incumbents, or challengers. Its mandate is to uphold the law. Judges swear allegiance to the Constitution and to the statutes enacted under it. Their role is not to endorse popular opinion or political expectations, but to interpret and apply the law to the facts presented before them, doing so with impartiality. Once a Court begins to decide cases based on who is more popular, who appears more sympathetic, or who commands louder public support, it ceases to be a Court of law and becomes an arena of political contestation.
The truth of the matter is that many of the difficulties that characterise election disputes in Nigeria originate outside the Courtroom. The architecture of our electoral dispute resolution system is a product of legislation. Time limits, evidentiary thresholds, procedural requirements, and the scope of reliefs available are determined primarily by the legislature and by the politicians. Where the law prescribes rigid timelines or narrow grounds for relief, the Courts are bound to operate within those narrow confines. Judicial discretion does not extend to rewriting statutory provisions in the name of equity or even justice.
To lay the entirety of our electoral challenges at the doorstep of the judiciary is therefore unfair. The Courts do not conduct elections. The Courts did not draft the Electoral Act 2022. The Courts do not supervise political parties. The Courts do not deploy security agencies. The Courts do not collate election results. The Courts are called upon only after disputes have crystallised, and even then, they must confine themselves strictly to the law, the facts, evidence and the record before them.
Take, for instance, one of the examples referenced by Mr. Mike Igini regarding the electronic transmission of election results. It is true that the Supreme Court after the last general election held that an election cannot be set aside simply because INEC failed to electronically transmit results in a manner prescribed by its guidelines. But is this judgment truly surprising?
The Court’s position reflects a long-standing and consistent interpretation of the relevant provision of the Electoral Act which provides that an act or omission which may be contrary to an instruction or directive of INEC but which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election. Numerous decisions of our appellate Courts, predating even the Electoral Act 2022 have repeatedly held that an election can only be invalidated for non-compliance with the Act’s specific provisions, not for failure to follow administrative regulations issued by INEC that do not conflict with the Electoral Act itself. This is not a principle the Courts invented after the 2023 general elections.
In this case, the manner in which electronic transmission of election of results ought to be done was set out in an INEC regulation, not in the Electoral Act itself. What, then, was the Court expected to do? Should it have disregarded decades of settled precedent simply because administrative convenience or public expectation demanded it?
Should it have simply ignored the clear provisions of Section 134(2) of the Electoral Act which specifically provided that an act or omission which may be contrary to an instruction or directive of INEC but which is not contrary to the provisions of the Act shall not of itself be a ground for questioning the election?
Should the real question not be directed at the legislature and political actors? The drafters of the Electoral Act 2022 were fully aware of the settled position of the law and the consistent interpretation of the appellate Courts that an election cannot be challenged solely on the basis of provisions contained in an INEC regulation that are not expressly in the Electoral Act itself. Yet, they failed and some may say deliberately failed to include in the Act specific provisions on how electronic transmission of results should be conducted. By leaving such a crucial aspect of the electoral process to administrative regulation alone, the legislators created confusion and allowed public expectation or administrative convenience to be mistaken for legal obligation. If there is any fault in how the law was applied regarding electronic transmission of election results, it rests squarely with the lawmakers, not with the judiciary, which was bound to apply the law as written.
The Courts cannot create law where the legislature has remained silent. They can only interpret and apply the law as it stands. In such situations, it is not the judiciary that falters, it is the legislature and political actors who, by creating ambiguities and expecting Courts to fill them, place the judiciary in an impossible position.
The truth is that the judiciary is an easy target, and it is deeply unfair. The fact that Judges cannot speak publicly for themselves does not mean they are indifferent, incompetent, or acting against the public. On the contrary, their silence is a cornerstone of judicial independence, yet it leaves them vulnerable to criticism, misrepresentation, and blame for decisions made in strict adherence to the law.
This is not to suggest that judicial decisions are immune from scrutiny. In a healthy democracy, reasoned criticism of judgments is both legitimate and necessary. The development of the law depends on robust engagement by scholars, practitioners, and citizens alike. But such criticism must be anchored in legal analysis rather than sweeping generalisation. It must recognise the institutional limits within which Judges operate and the oath that constrains their role.
When elections are poorly conducted, when internal party democracy collapses, when logistics fail, when political actors disregard the law, or when legislative ambiguities create interpretive challenges, it is intellectually convenient but constitutionally inaccurate to heap the consequences solely on the judiciary. The judiciary is reactive, not proactive, in electoral matters. It cannot by itself repair systemic defects that originate outside the Courtroom except within the narrow confines of adjudication in line with the law.
A balanced assessment of Nigeria’s electoral experience must therefore acknowledge shared responsibility. Political culture, legislative design, institutional capacity, and legal adjudication are interconnected parts of a larger whole. Reform must be equally holistic. To single out the judiciary as the source of all our electoral frustrations is not only inaccurate, it distracts from the deeper reforms required within our politics and our legislative framework. The judiciary cannot, and should not, be made the solitary scapegoat for structural challenges that lie far beyond its constitutional remit.
If we are to single out any arm of government or body, then the biggest problem lies with the lawmakers and politicians themselves. If they truly cared about the integrity of the electoral process, they would enact laws that are clear, precise, and capable of guiding the Courts. In that case, the judiciary would have no choice but to apply the law as written.
The recent debacle in the legislature over the electronic transmission of election results only underscores that the problem is with the lawmakers. They are fully aware of what they are doing, passing laws that are vague or toothless, and then shifting the blame to the judiciary when these laws are applied exactly as written.
Tunde Ahmed Adejumo is a Legal Practitioner based in Abuja, Nigeria.
