Burden of Proof in Election Petitions

This article by Festus Okoye examines the feasibility of the suggestion that the Electoral Act 2022 be amended to shift the  burden of proof in Election Petitions from the Petitioner to the Independent National Electoral Commission (INEC), citing numerous authorities to prove that doing so is tantamount to turning the law on its head and concluding that rather, true reform of the electoral process lies in institutional accountability and a collective commitment to protect the sanctity of the people’s mandate

Introduction

The debate over shifting the burden of proof in election petitions from petitioners to the Independent National Electoral Commission (INEC), is once again at the heart of national discussion. Some individuals and groups argue that the burden should rest on INEC to prove it organised a fair election, rather than petitioners having to substantiate allegations of electoral malpractice with all relevant documents held by the electoral management body.

They cite the tight deadlines for filing petitions and INEC’s inflexible stance in releasing essential documents, as reasons for this push. They also argue that INEC is responsible for materials and logistics, and should demonstrate that its actions were legal and reflected the will of the people. Consequently, they believe that shifting the burden of proof is the best way to ensure justice in the election petition process.

Pertinent Questions

Is reversing the burden of proof in election petitions, truly in the interest of justice and democratic integrity? Why should a petitioner make allegations and then wait for others to prove their innocence, rather than providing credible evidence to support their claims? Is it true that the electoral management body withholds critical evidence favourable to the petitioner, to conceal its misconduct in electoral affairs? Must this burden shift in all electoral issues, or only in some cases? How can we achieve a balance in these circumstances?

Burden of Proof

There is, in law, a presumption that the results of any election declared by the Returning Officer are correct and authentic, based on Sections 115, 148(c), and 149(1) (now Sections 155 and 136) of the Evidence Act. This presumption is rebuttable, and the burden falls on the person who denies the correctness and authenticity of the return, to disprove it. When such a denial is based on a complaint that the petitioner received a majority of lawful votes, the rebuttal must be proved on the balance of probabilities. See Omoboriowo v Ajasin (1984) 1 SCNLR 108.

In CPC v INEC & Ors (2011) LPELR-8257(SC) (pp. 71 paras. A), Musdapher, J.S.C., reaffirmed the same principle and stated that “In the case of Abubakar v Yar’Adua (2008) 19 NWLR (Pt. 1120) 1 at 155, this Court per Niki Tobi, JSC said: “Election results are presumed by law to be correct, until the contrary is proved. It is, however, a rebuttable presumption. In other words, there is a rebuttable presumption that the result of any election declared by a returning officer is correct and authentic, and the burden is on the person who denies the correctness and authenticity of the return to rebut the presumption. See Jalingo v Nyame (1992) 3 NWLR (Pt. 231) 530; and Buhari v Obasanjo (2005) 13 NWLR (Pt. 941) 1. In the case of Buhari v Obasanjo (Supra) at page 222, Ejiwunmi, JSC of blessed memory stated: “…The onus lies on the Appellant, to establish first substantial non-compliance. Secondly, that it did or could have affected the result of the election. It is after the Appellants have established the foregoing, that the onus would shift to the Respondents to establish that the results were not affected. See Ibrahim v Shagari (1983) 2 SCNLR 176″.

The Uwais Committee

In 2007, President Umaru Musa Yar’Adua established the Electoral Reform Committee, also known as the Uwais Electoral Committee, with the mandate to analyse the country’s electoral challenges and recommend constitutional, legal, and administrative reforms to ensure the conduct of fair elections. Part of the issues considered by the Committee, relates to the role of the Judiciary and election tribunals within the country’s electoral framework. The Committee submitted its report to the President, in 2008.

The Uwais Electoral Reform Committee recommended reforms to improve the speed and credibility of election dispute resolution, including an amendment to the Electoral Act 2006 to shift the burden of proof in election petitions from petitioners to INEC. The Committee argued that INEC, being responsible for conducting elections, should demonstrate that disputed polls were free, fair, and reflective of the people’s will. Meanwhile, petitioners would only need to provide initial evidence of mismanagement to trigger that burden. It also noted that the 1999 Constitution and the 2007 Practice Directions were inadequate for the timely adjudication of election petitions, and called for comprehensive procedural rules to address these issues. Despite the importance of these recommendations, the Government has failed to implement them or provide the necessary legal backing.

Understandably, some may see the challenges and concerns, and why certain advocates support shifting the burden of proof. However, the reality is that the country has made progress in electoral reforms since the Committee’s report was published in 2008. While the Uwais Committee raised legitimate concerns, Nigeria’s electoral process has since evolved, requiring a reassessment of whether its recommendations still match current realities.

Responsibilities

The issues are straightforward. It is the responsibility of the electoral management body to organise, undertake, and supervise elections. It is the duty of the Police and other security agencies to provide security for electoral materials and personnel, and to ensure a secure environment for credible elections. Political parties are responsible for screening their candidates and presenting qualified ones to the electoral management body. Candidates have a constitutional, legal, and civic duty to submit genuine papers to the electoral commission. They also have a duty to help mobilise voters on election day. This creates a symbiotic relationship. The over 1.5 million NYSC members performing ad hoc duties, have a duty to remain neutral and carry out their tasks to the best of their ability. Professors and Lecturers recruited as collation officers, must collate and declare results in a manner befitting their roles. These are the expectations Nigerians hold.

Lawmakers independently determine the criteria, for an aggrieved candidate to have the locus and jurisdiction to challenge an election conducted by the Commission. Firstly, Section 134(1) of the Electoral Act states that an election can be challenged on specific grounds: a person whose election is contested was, at the time of the election, not qualified to stand; the election was invalid due to corrupt practices or non-compliance with the Act; or the majority of lawful votes cast did not duly elect the Respondent.

Section 134(2) also states that, an act or omission that may conflict with an instruction or directive of the Commission or an officer appointed for the election, but which is not against the provisions of the Act, shall not on its own, be grounds to challenge the election. Furthermore, Section 135(1) of the Act states that an election shall not be invalidated due to non-compliance with the provisions of the Act, if the Election Tribunal or Court is satisfied that the election was conducted substantially in accordance with the principles of the Act, and that the non-compliance did not significantly influence the outcome of the election.

Numerous authorities confirm that the burden of proof in an election petition seeking declaratory relief rests on the petitioner, as he is the party most likely to fail if either side presents no evidence. The petitioner’s task is complicated by the presumption of regularity and accuracy, attributed to the election results declared by the electoral authority. In the case of Murtala & Anor v INEC & Ors, (2024) LPELR-79942(SC) UMAR J.S.C., the issue of burden of proof in election petitions was analysed, and it was stated that the burden of proof in such cases lies on the petitioner, as he is the party who would fail without evidence. He argued that the petitioner’s task is hindered by the presumption of regularity and correctness, given to the election results declared by the election umpire. Furthermore, he explained that the evidential burden is not fixed, but shifts once the evidence produced by the petitioner prima facie establishes the facts alleged in the petition. He referenced the cases of Omoboriowo v Ajasin (Supra), Buhari v INEC (2008) LPELR – 814 (SC) @ 48 B – D, and Oyetola v INEC (2023) 11 NWLR (PT. 1894) 125 @ 168 A – D.

The Hon. Justice Abba Aji, in the same matter, emphasised that he who alleges must prove, and this principle also applies to an election petition. She explained that the Appellants, in their petition, sought the Tribunal to render judgement in their favour, requesting the reliefs they claimed, based on the assertion that the facts they presented are accurate. Consequently, they bore the primary legal burden of proving the existence of those facts under Section 131(1) of the Evidence Act 2011, which states that “whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist”. The evidential burden to disprove the petitioners’ case would only shift to the Respondents, if the evidence put forward by the petitioners demonstrated the facts alleged, in accordance with Section 133(1) and (2) of the Evidence Act. Therefore, the Tribunal was obliged first to determine whether the evidence produced by the petitioners established the existence of the facts alleged, before considering the Respondents’ evidence to assess whether the petitioners’ case could be disproved on the balance of probabilities. Even if the Respondents choose not to lead evidence to challenge or disprove the Appellants’ petition and remain silent, the Appellants still bear the strict duty and obligation to prove their petition against the Respondents.

The burden of proof changes, when a petitioner makes criminal allegations in their petition. In such cases, the petitioner must prove the allegations beyond a reasonable doubt. Tobi, J.S.C., in Abubakar & Ors v Yar’adua & Ors (Supra), noted that it has been established in many cases that the burden of proving a criminal offence in an election petition lies with the petitioner, and the proof must be beyond a reasonable doubt. He cited the case of Chief Nwobodo v Chief Onoh (1984) 1 SCNLR 1.

Adekeye, J.S.C., in CPC v INEC & Ors (2011) LPELR-8257(SC) (pp. 51–54, paras. E), clarified misconceptions surrounding the issue of burden of proof. She stated that “the case of the Appellant as petitioner before the lower Court and even in his brief before this Court, demonstrated a clear misconception of the burden of proof required from a petitioner alleging non-compliance with the provisions of Section 139 of the Electoral Act”. According to the Justice, the Appellant’s evidence, both oral and documentary, was aimed at establishing that the burden of proof rested with the 1st Respondent, based on alleged complaints regarding the conduct of the election and the non-production of documents and witnesses. He reaffirmed that allegations of substantial non-compliance with electoral laws are not new, and that the Supreme Court has consistently held that the burden of proving non-compliance which substantially affected the election result lies on the petitioner.

He referred to Akinfosile v Ijose (1960) Vols. 4 & 5 WNLR 60, where the Court held that “a petitioner who alleges in his petition a particular non-compliance avers in his prayer that the non-compliance was substantial, [and] must so satisfy the Court”. In Awolowo v Shagari (1979) All NLR 120 at 161; (1979) 6–9 SC 51, the Supreme Court stated that “the non-observance of these rules or forms, which is to render the election invalid, must be so great as to amount to conducting the election in a manner contrary to the principle of an election by ballot, and must be so substantial as to satisfy the tribunal that it did affect or might have affected the majority of the votes”.

In Buhari v Obasanjo (Supra), the Court reaffirmed that “an election shall not be invalidated simply because it was not conducted substantially in accordance with the provisions of the Act; it must be clearly evidenced that the non-substantiality has affected the election’s outcome. An election and its victory are comparable to a football match, and the goals scored. The petitioner must not only demonstrate substantial non-compliance but also specify the figures, that is, the votes impacted by the compliance or lack thereof”. Lastly, in Abubakar v Yar’Adua (Supra), the Supreme Court upheld that “the operative words in Section 146(1) are if it appears to the election tribunal or Court that the election was conducted substantially in accordance with the principles of the Act”. Given that the tribunal or Court can only reach a conclusion based on the evidence before it, one of the parties must present that evidence to the contrary; and the party that fails to do so will lose. In my humble view, that party is the petitioner. He is the one asserting that the election was not conducted substantially, according to the principles of the Electoral Act.

Inappropriateness of Shifting the Burden of Proof in Election Petitions

It would be inappropriate to shift the burden of proof, onto the Commission. The Commission employs fewer than 15,000 staff members. During elections, it mobilises over 1,500,000 ad hoc staff, including corps members and students in their penultimate year at Federal tertiary institutions, to 176,846 polling units nationwide. It also deploys Lecturers and Professors as collation officers to 8,809 registration areas, 774 local governments and area councils, as well as the 36 States of the Federation and the Federal Capital Territory, Abuja.

Additionally, election results are announced by the presiding officer at the polling unit; ward collation officers at the registration area or ward collation centre; local government or area council collation officers at the respective collation centres; and the State collation officer at the State collation centre. The returning officer declares the results and announces the winner at various collation centres: in the registration area or ward collation centre for Councillorship elections in the Federal Capital Territory; at the area council collation centre for chairmanship and vice-chairmanship elections in the Federal Capital Territory; at the State collation centre for State house of assembly elections; at the Federal constituency collation centre for House of Representatives elections; at the senatorial district collation centre for Senate elections; and at the State collation centre for Gubernatorial and Presidential elections, as well as the national collation centre for presidential elections. The Chief Electoral Commissioner, acts as the returning officer for the Presidential election.

Most of these officials are not staff of the Commission; therefore, in any election petition, the Commission must re-mobilise them, take them to the election petition tribunal, and possibly keep them for 180 days until the petition is concluded. These individuals are engaged in their primary roles in various fields, and are also students at different institutions. They include Lecturers and Professors involved in research and teaching, as well as Vice-Chancellors and Deputy Vice-Chancellors managing their institutions. It would be excessive to involve them extensively in serving the nation. Currently, the few who are subpoenaed to testify must be excused from their institutions, and are housed and transported by the electoral management body.

Furthermore, how can you shift the burden of proof to the Commission, in an election where the Commission is a victim of unrestrained electoral violence? Take the case of Ojukwu v Onwudiwe (1984) 1 SCNLR 247, where Aniagolu J.S.C. (dissenting) stated thus: “An election in a constituency in which the Returning Officer was held hostage from Saturday to Sunday the next day, and was not allowed to leave the room in which he was held hostage, even in order to answer nature’s call; an election in which no less a personage than the Speaker of the State House of Assembly could come to the collating centre and advise the Returning Officer to yield to his party’s pressure that the Returning Officer should sign a falsified return or face death; an election in which waves or bands of party supporters roamed the streets intimidating people either to vote for the party or face physical harm; an election in which even the Resident Federal Electoral Commissioner who travelled all the way from his headquarters at Enugu to Onitsha, was unable to announce the result in the Onitsha-North East Constituency, within the constituency, because of general violence and had to bring in the Mobile Police with whose help he was able to extricate himself, his staff, and officers from the thuggery and violence in that constituency.” Under these circumstances, you cannot demand that the Commission prove it held a free and fair election.

Consider the case of Torti v Ukpabi ((1984) I SCNLR, 214), which involved an election in the Umuahia Senatorial District of the former Imo State. In this case, the petitioner argued that he received the majority of lawful votes, and the events during the collation process were unusual. On appeal to the Supreme Court, Eso, J.S.C made the following significant statement: “Now the Police had no business with the election under the Constitution or the Electoral Act. The duty of the Police, was to maintain law and order. According to the evidence led even by the 1st Respondent himself, there was no disorder in the conduct of the election. Yet, the Police, even from their headquarters in Owerri, interfered with the peaceful conduct of the election, collected the Returning officer to Owerri, having stopped him from making the announcement of the results as required by law. By the time there had been interference in Owerri, actively supported by the Police, the figures had been inflated by actual forgery of figures by 40,000. To say the least, this was a disgrace on the part of the Police as it was criminal”.

The Commission is not the aggrieved party in an election petition. Free and fair elections are not solely about election day activities, but also include the activities that lead up to the election and those that follow. The aggrieved parties in an election are the candidates, their parties, the voters who turn out to exercise their franchise, and those unable to access polling stations due to unchecked violence by some political actors. Those with standing—namely, the aggrieved candidates and political parties—must gather their facts and evidence before submitting complaints. A candidate should not be allowed to file a weak petition, make broad allegations, and expect the Commission to defend their case. Such actions could lead to a flood of petitions and raise questions about how to prevent the Commission, its staff, and witnesses from accessing the election tribunals. It also indicates that the National Assembly must allocate the same funds used for elections—covering legal fees, accommodation for witnesses, and transportation of materials and personnel from one location to another.

Shifting the burden of proof also means that, the Commission must take responsibility for issues like certificate forgery and the submission of false documents. Political parties are tasked with screening their candidates. It is not the role of the Commission to verify candidates’ credentials with institutions or verification bodies, nor to check the credentials they submit. When the burden of proof shifts to the Commission, it becomes their obligation to prove that the certificates provided by candidates are genuine. This is illogical.

Election Petition Lawyers must be meticulous, when gathering facts and evidence. They need to understand the Commission’s processes and procedures, ensuring their claims are supported by the evidence they plan to present in their petition. You cannot request a certified true copy of the voters’ register for 176,846 polling units when representing a candidate in a Senatorial election. You must apply for the documents that will benefit the petitioner; you cannot simply be fishing for documents. Lawyers must also ensure their clients pay promptly for copying and certification services, as required by law.

Nigerians must insist that the electoral management body perform its duties diligently, and submit the required documents in court. Candidates and political parties, must support the organisation’s work. Political parties and candidates cannot create a toxic environment, and expect the electoral management body to perform miracles. The burden of proof must remain with the petitioners, in election petitions. There is no valid reason to shift this burden. Doing so would only increase the demands on the electoral management body, turning it into an entity responsible for prosecution in electoral matters.

Nigerians fought for democracy and chose a presidential system founded on the rule of law, due process, and a written Constitution that clearly defines the powers and responsibilities of the Legislature, Executive, and Judiciary. The Constitution entrusts INEC with the duty to organise, undertake, and supervise elections. However, we must not overburden the institution or expect it to perform miracles. The real challenge lies not in the burden of proof, but in confronting the entrenched culture of electoral malpractice.

Electoral malpractices have persistently been a common feature of Nigeria’s political scene, carried out and maintained by those who see nothing wrong as long as they win. With each election cycle, new strategies are developed to undermine reforms and challenge innovations introduced by the electoral authority. When defeated, candidates often turn to the courts, exploiting procedural technicalities to delay justice until the election cycle concludes.

Ultimately, the burden of sustaining democracy rests on all Nigerians. INEC must uphold its constitutional mandate with integrity and transparency; political actors must demonstrate discipline and respect for the democratic process; and the Judiciary must continue to ensure justice in accordance with constitutional standards. True electoral reform will not be achieved by merely shifting the burden of proof, but through institutional accountability, civic vigilance, and a collective commitment to protect the sanctity of the people’s mandate.

Festus Okoye, Legal Practitioner; former INEC National Commissioner