Dr. Monday Ubani, SAN, is the Chairman of Nigerian Bar Association, NBA, Electoral Reform Committee. In this interview with Vanguard Law and Human Rights, he highlights vague provisions on electronic transmission of results, the heavy evidentiary burden on petitioners, and the misuse of “substantial compliance,” in the Electoral Act.
The former NBA 2nd Vice President insists amongst other things that BVAS and IReV data must be given conclusive legal weight, penalties for breaches strengthened, and evidentiary rules simplified, warning that without reform, Nigeria’s democracy will remain vulnerable to flawed elections.
Excerpts:
By Henry Ojelu
Sir, many lawyers argue that vague provisions in the Electoral Act — especially around electronic transmission of results — have led to inconsistent tribunal judgments. From your committee’s findings, which sections need the most urgent clarification, and how should the law be redrafted to eliminate these ambiguities?
The Electoral Act has indeed left some areas vague, particularly on the electronic transmission of results. Section 60 and 62 are good examples, as they fail to clearly define the hierarchy between manual collation and electronic transmission. This ambiguity has led to contradictory tribunal rulings. Our committee of the NBA Electoral Reform Committee recommended that the Act be redrafted to expressly state that electronically transmitted results form the primary source of authentication, while manual collation only serves as a backup in cases of proven technological failure. Clarity in drafting eliminates room for judicial guesswork and inconsistent judgments.
Critics say petitioners face an almost impossible task in proving non-compliance, as they must tender multiple documents and still prove that irregularities affected the outcome. Do you believe the current evidentiary standard under Section 135(1) is fair? What balance should be struck between protecting election integrity and avoiding frivolous petitions?
Section 135(1) sets a very high threshold: petitioners must prove not just non-compliance but also that it substantially affected the result. In practice, this creates a near-impossible evidentiary burden, especially in a country with over 170,000 polling units. While the standard is meant to discourage frivolous petitions, it has become a shield for electoral malpractice. I believe the law must be recalibrated to reduce the burden where there is clear, demonstrable non-compliance. In such cases, the onus should shift to INEC to show that irregularities did not affect the overall result. That balance protects both electoral integrity and the sanctity of the vote.
A recurring debate is whether INEC guidelines and manuals carry the force of law. Some tribunals downplay their weight because they are not in the principal Act. Should the National Assembly elevate key INEC regulations into the Electoral Act itself, or do you see risks in over-legislating administrative procedures?
The recurring debate is valid. At present, INEC guidelines lack the same force as the principal Act, yet they regulate critical aspects of elections. My view is that core elements, such as accreditation, transmission of results, and collation procedures should be incorporated into the Electoral Act itself. However, we must avoid over-legislating every administrative detail, which could make the law too rigid. The best approach is to enshrine the essentials in the Act, while leaving operational flexibility to INEC via subsidiary legislation.
BVAS and IReV were hailed as game-changers, yet their use in court as credible evidence has been inconsistent. From the NBA’s reform perspective, how can the Electoral Act be amended to ensure that data from these devices is treated as conclusive proof in disputes, without technical bottlenecks?
Technology has been both a blessing and a frustration. BVAS and IReV were meant to enhance transparency, yet courts have struggled with their evidentiary value. To avoid future uncertainty, the Electoral Act should be amended to recognize data from these devices as prima facie evidence of the will of the people. Once that presumption is established, the burden should shift to any challenger to disprove it. This would reduce technical wrangling and elevate technology to the role it was designed for: guaranteeing credibility.
Section 135(1) allows elections to stand despite non-compliance, so long as results are deemed “substantially in accordance” with the law. Some lawyers argue this shields flawed elections. Do you agree? Should the law be amended to define “substantial compliance” more narrowly, or is it a necessary safeguard against endless litigation?
“Substantial compliance” was meant to prevent the annulment of elections over trivial infractions, but in practice, it has shielded deeply flawed elections. I believe the phrase must be defined more narrowly in the Act. For example, non-compliance that affects accreditation, collation, or transmission should be deemed material, regardless of scale. Democracy thrives when compliance with the law is not optional but mandatory. Narrowing the doctrine would strengthen accountability while still filtering out frivolous petitions.
Nomination cases often flood the courts, straining judicial capacity. Your committee recommended reforms here. Should nomination disputes be restricted to internal party mechanisms, or do you think courts must retain oversight given Nigeria’s history of flawed primaries?
Nomination disputes are indeed clogging our courts. Ideally, internal party mechanisms should resolve them, but our political history shows that party organs often lack transparency and fairness. That is why courts must retain a supervisory role, at least as a final check. However, the Electoral Act should impose stricter timelines and preconditions before nomination disputes reach the courts. This balance would ease judicial congestion while still safeguarding internal democracy.
INEC has repeatedly complained that penalties for premature campaigns and other violations are too lenient — in some cases capped at ¦ 500,000. From your review, how should penalties be strengthened in the Electoral Act? And do you think enforcement agencies have the political will to apply them?
Penalties under the Act are laughably weak, a ¦ 500,000 fine means nothing to major political actors. We recommended stronger sanctions: higher fines pegged to today’s realities, disqualification of candidates for serious infractions, and even criminal liability for egregious breaches. But enforcement is the real test. Unless INEC and law enforcement agencies have the political will to prosecute offenders without fear or favour, stiff penalties on paper will remain toothless. The law must, therefore, tie enforcement to independent institutions insulated from political interference.
Petitioners often lose on technical grounds — for example, courts rejecting evidence as “dumped” or witnesses not linking documents properly. Did your committee propose reforms to simplify evidentiary rules in election petitions? And how can the judiciary be trained or re-oriented to prioritize substance over technicalities?
The obsession with technicalities has robbed many petitioners of justice. The so-called “dumping of documents” rule, for instance, has become a trapdoor rather than a safeguard. Our NBA committee urged that evidentiary rules for election petitions be simplified, allowing certified electronic evidence, joint tendering of documents, and reliance on technology-based records like BVAS data. In addition, continuous judicial training is critical. Judges must be encouraged to prioritize substance over form, ensuring that justice is not sacrificed on the altar of technicalities.
Electoral reforms cannot be viewed in isolation. They touch on the larger question of democratic consolidation in Nigeria. An election is not just a legal process but a civic contract between the people and those who seek to govern them. Any ambiguity, delay, or loophole weakens public trust and feeds apathy. If citizens believe that their votes do not count or that tribunals will uphold flawed processes on technical grounds, the legitimacy of government itself comes into question.
Equally important is the cultural shift we must embrace. Political actors must internalize the principle that elections are not a “do-or-die” affair. Without this attitudinal change, no legal reform will suffice. Similarly, institutions like INEC, security agencies, and the judiciary must recommit to impartiality. The credibility of elections depends less on beautifully written laws and more on the sincerity of those mandated to implement them.
Finally, reforms should be forward-looking. The world is moving towards digitization and transparency. Nigeria cannot afford to lag behind. The integration of technology into our electoral process must be backed by law, embraced by institutions, and trusted by the people. That is the only way we can guarantee that the will of Nigerians, freely expressed at the ballot, is reflected in governance.
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