ANALYSIS: Nigeria's 2023 election, from the ballot box to the courtroom

How election tribunals are formed in Nigeria

In Nigeria, tribunals are established by the country’s electoral laws to resolve disputes. They have the power to nullify elections and order fresh elections. 

These tribunals are set up by the court of appeal at least 30 days before the elections. Judges are appointed by the president of the court of appeal and, for cases relating to governorship and legislative elections, in consultation with the chief judge of the state. 

The court of appeal makes the final decision in lower-level petitions. For presidential elections, the court of appeal acts as the tribunal and the supreme court has the final say.

Who can submit a petition to the tribunals?

The 2022 electoral act limits the right to petition the tribunals to the candidates or political parties that participated in the election. 

According to the law, the grounds for filing a petition against the outcome of an election include:

• The candidate was not qualified to stand for election
• Corrupt practices 
• Failure to comply with the electoral law
• The candidate whose victory is being challenged did not receive a majority of the valid votes cast in the election

The law stipulates that any candidate or political party wishing to file a petition challenging the outcome of an election must do so within 21 days of the announcement of the election results. 

The tribunal must also announce its decision within 180 days of the filing of the petition.

The process of filing a petition

Challenging an election result starts with a petition to the relevant election tribunal. 

The tribunal then holds a hearing, at which evidence is presented by the parties involved, including Inec.

The petitioner must prove that the election did not follow the established guidelines. However, the tribunal will not set aside an election if the non-compliance did not materially affect the outcome of the election.

The tribunal then delivers its verdict. It can either uphold the result of the election, order a re-run or declare a new winner.

Petitions filed against Tinubu’s victory

Atiku Abubakar of the Peoples Democratic Party and Peter Obi of the Labour Party have filed petitions challenging Tinubu’s electoral victory, as declared by Inec. 

In his petition, Abubakar asked the tribunal to declare him the winner, arguing that Tinubu’s victory was invalid due to non-compliance with the electoral act. 

Obi has claimed that Tinubu was ineligible to contest the election because of an alleged drug conviction in the US.

At time of publication, a verdict was not expected before Tinubu's inauguration on 29 May.

There have been calls from some quarters for the tribunal process to be completed before the declared winner is sworn in. 

Olisa Agbakoba, a senior Nigerian lawyer and former president of the Nigerian Bar Association, said the 180-day timeframe for the tribunal was too long.

The lawyer told local channel Arise TV that he understood the Labour Party’s concerns about an inauguration in the middle of a petition.

“Where we strike the balance is to give our best possible shots to finish the petitions,” he said.

Chidi Odinkalu, a lawyer and former chair of Nigeria’s National Human Rights Commission, told Africa Check that the ideal situation would have been for the tribunal to have completed its work before the swearing in ceremony.

“A situation in which a person whose mandate is in court finds they are placed in a position to use state resources and assets to defend the mandate under contest is evidently far from ideal or equitable,” he said.

Governors have been sacked by election tribunals

Over the years, several governors and legislators have been dismissed by electoral tribunals after being sworn in. These include:

1. Chris Ngige: A medical doctor turned politician, Ngige was declared the winner of the 2003 gubernatorial election in the southeastern Nigerian state of Anambra. However, he was sacked by the tribunal in 2005, which ruled that he did not win a majority of the votes cast in the election.
2. Murtala Nyako: In 2007, a tribunal annulled Nyako’s election as governor of Adamawa state in the northeast and ordered a new election be conducted within 90 days.
3. Aliyu Wamakko: In 2008, the election tribunal ruled that Wamakko was not qualified to be the Peoples Democratic Party (PDP) governorship candidate in the 2007 election and ordered a fresh election.
4. Okezie Ikpeazu: In 2016, Ikpeazu, the governor of Abia state, was sacked by the tribunal, which declared Alex Otti of the All Progressives Grand Alliance the winner of the election.

Good and not-so-good: civil society weighs in

Some civil society organisations have praised the role of electoral tribunals in resolving disputes and upholding the rule of law. But others have raised concerns about the tribunals’ independence and impartiality.

In the past, there has also been criticism of the slow pace of justice in election tribunals, noting that cases can take several years to resolve, undermining public confidence in the process.

In March 2016, the chair of Inec, Mahmood Yakubu, also complained about conflicting rulings from the judiciary, saying that some decisions were confusing the commission.

In July 2021, a federal high court and a state high court ruled in favour of two different PDP candidates for governor and both courts ordered Inec to publish the name of the respective aspirant as the party’s candidate.

Election petitions ‘a strain on Nigeria’s judiciary’’

Every case filed in court strained the judiciary, Odinkalu told Africa Check.

“The only question, therefore, is not whether election petitions put a strain on the judiciary but to what extent they do so. Clearly now, it is intolerable.” 

The lawyer said the political disputes had become toxic to the judiciary in many ways.

“First, they preoccupy judges so much that they no longer get time for routine and regular cases. So, they are the cause of interminable delay in court.”

Second, the cases “tarnished the intangible asset of judicial credibility”, he said, citing what he said was a widespread perception that judges were beholden to politicians.

“Third, because of election petitions, politicians now want to populate the judiciary with far from ideal characters so that they will get their people in the tribunals when the time comes.”

Speaking at the conferment ceremony of a senior advocate in November 2022, Yakubu Maikyau, the president of the Nigerian Bar Association, said already overworked lawyers were under more pressure because of the time limit imposed by the constitution.

How much has Inec budgeted for petitions?

Inec allocates part of its budget to legal matters, including the cost of election tribunals and the resolution of electoral disputes.

In its 2023 election project plan, the commission budgeted N5.19 billion (about US$11.2 million at the official exchange rate of N461/$) for litigation and prosecution. 

It also set aside another N886 million ($1.9million) for legal drafting and clearance. 

The commission also provides legal assistance to its officials and ad-hoc staff, who may be involved in legal cases arising from the elections.

Although the tribunal offers hope to aggrieved politicians and their supporters, Odinkalu said the responsibility of making the electoral process credible lies with Inec.

“The election petition process, in a way, is a measure of that public confidence. So, there is a relationship of inverse proportionality between the number of election petitions on the one hand and public confidence in elections on the other."