Nigerian Voters Have A Constitutional Right to Join in Election Petitions, By Chidi Anselm Odinkalu

“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.”

Article 21(3), Universal Declaration of Human Rights

In April 2017, Maina Kiai changed the face of presidential elections in Kenya. He is neither a politician nor was he a candidate or aspirant seeking political office. Maina trained as a lawyer. For five years, from 2003 he chaired Kenya’s National Human Rights Commission. In 2011, Maina became the United Nations Special Rapporteur on Freedom of Peaceful Assembly and Association. He held that position until 2017.

When he sued Kenya’s Independent Electoral and Boundaries Commission (IEBC) in 2016, Maina acted as an ordinary citizen asserting his rights under Kenya’s Constitution of 2010 to ask the courts to protect the integrity of elections in his country. Kenya’s Court of Appeal, in its judgment of April 7, 2017, noted:

“Because elections determine political winners and losers, electoral processes, from voter registration through to declaration of results, have long been targeted for manipulation…”

Kenya’s Elections Act (2011) and its accompanying regulations (2012) allowed provisional results at the polling unit and constituency level, which could be altered by the IEBC. Maina challenged these provisions as unconstitutional. The courts—first the High Court, then the Court of Appeal—agreed with him and ruled in favor of the citizens, ensuring results at polling units matched final results.

Five months later, Kenya’s Supreme Court nullified the 2017 presidential election results due to irregularities—building on the logic of Maina’s case. Notably, in 2013, a similar citizen-led petition was filed by Gladwell Otieno of AfriCOG.

Such legal empowerment of ordinary citizens is currently unthinkable in Nigeria, where only political parties, their candidates, or INEC are allowed standing in election petitions. This is despite the fact that elections are fundamentally about the votes—and rights—of citizens.

This exclusion lacks constitutional basis. Section 6(6)(c) of Nigeria’s 1999 Constitution gives courts authority over “the determination of any question as to the civil rights and obligations of that person.” Universal franchise is a civil right of the highest constitutional order.

As Kenya’s Court of Appeal said in 2017:

“The constitution proclaims the sovereignty of the people…”

In Nigeria, judges’ close alignment with politicians sustains a legal structure that excludes citizens. The main concern is not legal merit, but the administrative complexity of allowing mass citizen participation. Yet, practical options exist:

1. Reverse the Burden of Proof: Require INEC to prove substantial compliance with election laws in disputes, as recommended by the 2008 Electoral Reform Committee led by Chief Justice Mohammed Lawal Uwais.

2. Recognize Class Standing: Allow citizens or civic groups to represent voters collectively, treating the electoral roll as a shared interest group.

These options aren’t mutually exclusive. The latter requires no constitutional amendment—just judicial will to uphold existing law. As Kenya’s courts noted, we must guard elections from “opacity, corruption, crime and malpractice.”

A lawyer and a teacher, Odinkalu can be reached at chidi.odinkalu@tufts.edu