In England and Wales, the Civil Procedure Rules (CPR) embody a deceptively simple proposition: access to justice is not synonymous with immediate recourse to litigation. A claimant has a right to bring a claim, but that right is conditioned by procedural discipline.
The most notable expression of this discipline is the system of pre-action protocols. Whether in housing disrepair, personal injury, or commercial disputes, parties are required to exchange information, clarify issues, and explore settlement before approaching the court. Failure to comply is not merely frowned upon—it attracts sanctions in costs and, in some cases, adverse procedural consequences.
The underlying philosophy is clear: litigation is a last resort, not a first instinct.
The Electoral Parallel—and Its Limits
At first glance, the Nigerian electoral landscape appears to cry out for a similar intervention. Election cycles now produce an avalanche of litigation—pre-election disputes, nomination challenges, and post-election petitions—often overwhelming the judiciary and creating uncertainty in governance.
The Electoral Act 2026, with its apparent curtailment or “oust” judicial intervention in certain electoral matters, reflects a political recognition of this problem. But it also raises an immediate constitutional red flag: can access to courts, particularly in matters implicating political rights, be procedurally or statutorily constrained without violating constitutional guarantees?
Unlike private disputes under the CPR, electoral contests are not merely bilateral conflicts. They implicate:
- the sovereignty of the electorate,
- the legitimacy of public office, and
- the constitutional order itself.
This makes them resistant to wholesale transplantation of civil procedural logic.
Pre-Action Protocols in Electoral Disputes?
That said, the CPR offers a valuable conceptual tool: front-loading dispute resolution.
A Nigerian adaptation might look like this:
- Mandatory Internal Party Resolution (Pre-Election Stage)
Political parties should be required to exhaust internal dispute resolution mechanisms before approaching the courts. This is not novel in principle, but enforcement is weak. A CPR-style sanction regime—costs, dismissal, or procedural penalties—could give it teeth. - INEC-Supervised Compliance Framework
The Independent National Electoral Commission (INEC) could act as a supervisory body ensuring that parties comply with internal mechanisms transparently and fairly. This introduces a quasi-regulatory layer without immediately invoking judicial power. - Structured Pre-Petition Engagement
Before filing election petitions, parties could be required to:- define issues with precision,
- exchange evidence, and
- identify uncontested facts.
The Radical Proposal: Return to the Electorate
The more provocative suggestion is that where the means of election is fundamentally flawed, the remedy should not lie with the judiciary but with the electorate—through fresh elections.
This argument has intuitive democratic appeal: if the people’s mandate is in doubt, let the people speak again.
However, it presents three serious problems:
- Constitutional Structure: The judiciary is the designated arbiter of electoral disputes. Removing or diluting this role risks undermining the separation of powers.
- Practical Risk: Incumbents could benefit from flawed processes if courts are sidelined, entrenching electoral malpractice.
- Voter Fatigue and Instability: Frequent reruns may weaken, rather than strengthen, democratic legitimacy.
In short, while the electorate is the ultimate sovereign, the courts are the constitutional custodians of that sovereignty in disputed situations.
Deregulation of Party Obligations?
Another strand of the proposal is to remove statutory obligations imposed on political parties, leaving members to resolve disputes internally, with deregistration as the ultimate sanction.
This is a high-risk libertarian approach to party governance. Political parties in Nigeria are not mere private clubs; they are public institutions performing constitutional functions.
Total deregulation would likely:
- weaken internal democracy,
- empower party elites, and
- increase, rather than reduce, disputes spilling into the public domain.
A more balanced approach would retain statutory obligations but enforce them through graduated sanctions, rather than immediate judicialisation.
A Middle Ground: Procedural Discipline Without Constitutional Evasion
The real lesson from the CPR is not exclusion—it is management.
Electoral litigation in Nigeria can be tamed by:
- enforcing internal dispute mechanisms,
- introducing structured pre-litigation engagement,
- penalising bad faith claims robustly, and
- streamlining judicial processes for speed and clarity.
But any attempt to oust jurisdiction entirely is likely to fail both legally and normatively. Courts are not the problem per se; unstructured access and weak pre-litigation discipline are.
Conclusion
The CPR demonstrates that access to justice can coexist with procedural restraint. But electoral justice is not ordinary civil litigation—it is constitutional litigation in disguise.
You can borrow the tools—pre-action discipline, cost sanctions, issue narrowing—but not the premise of limiting access to adjudication.
In the final analysis, democracy requires both the ballot and the bench. The challenge is not choosing one over the other, but ensuring that each operates within a system that is efficient, credible, and constitutionally sound.
Centre for Nigeria Progress 