ADR Case Study: Nigeria

Nigeria’s cultural approach to election disputes shows that candidates, parties, and lawyers resist using ADR in pre-election disputes when introduced by the EMB. These parties tend to perceive the disputes as a zero-sum game, and that the courts are better and more objective decision-makers than the EMB. The Nigeria case study also highlights the need to distinguish and adapt solutions for local versus federal issues and the importance of funding for outreach about the use of ADR. The case study features calls for reforms that would position the judiciary to introduce ADR for pre-election disputes, in line with expanding use of ADR in the courts in Nigeria.

Nigeria has a longstanding practice of traditional ADR in other fields, but electoral stakeholders have appeared reluctant to use ADR since the election commission (INEC) introduced it in 2008 as a means of resolving electoral disputes. In 2011, the INEC established the Alternative Election Dispute Resolution (AEDR) Directorate, composed of election officials. The objective was for the staff of this unit within the INEC to “act as a third-party neutral which can confidentially address the resolution of intra-political party disputes, electoral issues before, during and after elections,” and “assist the courts in timely addressing electoral cases … and the public and parties in fact-finding, early warning monitoring and in the mediation of electoral disputes.”163 Despite continued efforts to promote the use of ADR to limit and triage the number of disputes, which overwhelmed courts before and after the 2019 general elections, the ADR mechanism in INEC remains under-used and underfunded. In the last election, the AEDR unit limited its mandate to addressing internal disputes within the workplace and was not used as an ADR mechanism for the election process itself.

Another ADR mechanism that works more successfully with INEC is the National Peace Committee (NPC). The NPC facilitated the signing of two national-level accords by the main candidates during the 2019 elections to conduct lawful campaigns and to respect the results. The Commonwealth Observer Group noted that these accords “may have contributed to the generally peaceful atmosphere of the campaign,” and the EU Election Observation Mission (EOM) noted that the accords “enhanced confidence in the process.”164 The NPC did something similar in 2015, which stakeholders considered helpful. Less impactful in recent elections, the Inter-Party Advisory Committee (IPAC)165 is a consultative forum for INEC and political parties. According to the 2015 African Union EOM, although the Political Parties Code of Conduct mandates the IPAC to monitor and regulate parties and to sanction offenders of the Code, it appeared to lack the capacity to address code violations.166 More recently, the EU EOM reported in 2019 that IPAC had held only quarterly meetings with INEC at the national level.167

In parallel, some experts and academics are calling for introducing ADR in the proceedings of the election court. IFES’s nationwide public opinion surveys found that 40 percent of respondents preferred the ability to engage in ADR over-filing before the courts.168 Based on the experience of previous elections, Nigerian politicians are unlikely to agree to submit their disputes voluntarily to a person or body outside the established judicial system and to accept the resolution or settlement of those disputes as binding.169 “[I]t may take some time before these same politicians realize that political contest is not necessarily a zero-sum game.”170 Other election stakeholders also exhibit reluctance to accept dispute resolution by actors outside the judiciary, particularly INEC. Because many electoral disputes involve INEC—either as a party or an actor close to the dispute—disputants do not perceive the ADR structure within INEC to be fully impartial and objective.

Moreover, a distinction should be made regarding the level at which ADR is introduced and the types of disputes it addresses. Willingness to submit disputes to mediation or conciliation during an election may vary among states and depend on whether the election is at the federal or provincial level. A candidate for presidential election may prefer to file directly with the EDR body or the court, whereas a candidate for municipal election may prefer to try mediation with his or her opponent at the local level prior to filing with the central EDR body in the capital. “The Nigerian state is made up of thirty-six states and a federal capital territory and … no two states exhibit the same tendencies with the same potential to produce pre-election political dispute[s].”171 Therefore, a failed experience of ADR at the central level or for general elections may not reflect ADR outcomes for a municipal race or for a particular county or province, depending on history and ethnic divisions. Additionally, with stronger outreach to political parties and candidates, and with active encouragement from the courts, ADR could still be a positive initiative to reduce the backlog in Nigeria’s courts at the time of elections.

As judicially led ADR has proved helpful in other fields of law, its use in election disputes could be explored to ease the backlog of cases in the courts and provide a swift resolution.

Several experts and election practitioners in Nigeria have called for increased use of ADR by the judiciary to resolve delays and backlogs in the electoral courts.172 There were reportedly at least 644 pre-election challenges in the 2019 general elections, most related to party primary elections.173 The courts often resolved these late, due to overly long legal deadlines and the volume of cases. The same issues occurred in previous elections; in 2011, the EU EOM recommended the use of ADR to reduce the volume of protracted litigation, suggesting that ADR mechanisms should be referenced in political party constitutions.174 But despite these calls, no ADR mechanisms for election disputes have been set up or piloted within the judiciary.

Judges are generally proponents of ADR, given that it would reduce the burden on the courts, and most jurisdictions of the civil courts have incorporated ADR into their rules of court. At that level, ADR is carried out in court-annexed mediation centers. Under the current rules, a court can mandate mediation, or one or both of the parties can apply for it, although the courts recognize that the willing participation of the parties is key to making ADR work. In 2021, the Court of Appeal established a mediation center for appellate-level cases, the first in sub-Saharan Africa.

The chief registrar of the Court of Appeal highlighted the advantages of mediation: “that it saves time, cost and matters are resolved in a more friendly way.” He said that building on mediation’s success in other fields of the law, judges and other stakeholders could consider its introduction in courts for pre-election disputes. He considers that a significant challenge for ADR in elections is outreach, and he believes that the push for ADR in election disputes cannot come from INEC, as it is a potential party to the disputes.175 It is also possible that lawyers may oppose ADR, believing that it would decrease their income.176 A pilot project would need to include outreach to parties and party lawyers as well as training judges and lawyers in mediation.