Burden and Standard of Proof in Election Petitions without Criminal Allegations

Abstract

The burden and standard of proof in election petition without criminal allegation is in tandem with the extant Evidence Act, as election petitions is sui generis. The purpose of election laws is to obtain a correct expression of the intent of the voters. However, this paper argues that whereas proof of election petition without criminal allegations requires proof on the preponderance of evidence, the shallow chant of “he who asserts must prove” in the extant law is a conduit pipe for electoral injustice. This paper therefore makes a clarion call for the amendment of the relevant extant law to usher in a legal regime of burden of proof on the pleadings, where whoever asserts the affirmative or positive must prove on the state of the pleadings. 
 
 The rebuttable presumption of the regularity of the conduct of elections and declaration of results, no longer serve the end of justice in our electoral process. This paper therefore argues that the Electoral Act be amended to place the burden of proof of the regularity of elections and declaration of results on the Independent National Electoral Commission (INEC), to meet the desired justice contemplated in the electoral process.