Femi Falana
A new bill, entitled ‘Bill for an Act to Amend the Electoral Act 2022 to make it mandatory for all Nigerians of majority age to vote in all National and State Elections and for Related Matters’ introduced by the Speaker of the House of Representatives, Honourable Abbas Tajudeen, was reported to have passed a second reading in the House last week.
No doubt, the bill is designed to put an end to voter apathy and ensure maximum participation in elections In Nigeria.
The Speaker of the House of Representatives probably wants Nigeria to join Egypt, the only African country, out of the 23 states that have provided for compulsory voting.
However, it is doubtful if the Speaker and his colleagues had paid sufficient attention to the relevant provisions of the 1999 Constitution. Otherwise, they would have realised that the compulsory voting is constitutionally invalid in every material particular on the ground that it is inconsistent with Sections 37, 38, 77(2), 135(5) and 178(5) of the Constitution.
The said constitutional provisions protect the fundamental rights of the Nigerian people to privacy, freedom of thought and conscience as well as the freedom to register and vote in national and state elections conducted in Nigeria. Since these provisions have been judicially interpreted by Nigerian courts, it is pertinent to refer to some of the cases for the guidance of the members of the National Assembly.
In the Nigerian case of Nwali v Ebonyi state Independent Electoral Commission & Ors
(2014) LPELR-23682, the appellant, had approached the Federal High Court, Abakaliki for an order of perpetual injunction restraining the 1st Respondent from using open ballot system of voting to conduct the September 28, 2013 or any other local government elections in the state. It was the position of the appellant that the use of the open ballot, that is queuing behind the candidate of his choice in the full glare of everybody constitutes a violation of his right to privacy guaranteed by Section 37 of the 1999 Constitution of Nigeria (as amended). The Federal High Court dismissed the suit.
But the Court of Appeal allowed the appeal and restrained the Ebonyi state Independent Electoral Commission (EBSIEC) from the use of open ballot system for the conduct of the 2013 and future local government elections in the state. The Justices of the Court unanimously held: “The privacy of his choice of that candidate and the privacy of his voting for that candidate constitute part of his ‘privacy’ as a citizen. The appellant was entitled to the privacy of his decision to vote for a particular candidate, his choice of that candidate and his casting his vote for that candidate. Therefore, requiring or compelling him to vote openly in the public watch and knowledge by queuing in front of the poster carrying the portrait of the candidate he has decided to vote for intrudes into, interferes with, and invades the privacy of his said decision, choice and voting, completely removing that privacy, therefore amounting to a clear violation of his fundamental right to the privacy of a citizen.”
The fundamental right to freedom of thought and conscience was upheld by the Supreme Court in the celebrated case of
Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) 7 NWLR (Pt 711) 206. In that case a patient, Mrs. Martha Okorie, and her husband belonged to a religious sect known as Jehovah’s Witnesses who believe that blood transfusion is contrary to God’s injunction. On account of the rejection of blood transfusion, the patient lost her life. Dr. Okonkwo, who treated the patient, was convicted of negligent and infamous conduct in a professional respect by Medical and Dental Practitioners Disciplinary Tribunal. But the Supreme Court set aside the conviction on the ground the doctor was right in respecting the fundamental right of the deceased to refuse blood transfusion on the basis of her religious belief.
In the leading judgment of the apex court, Ayoola JSC (of blessed memory ) stated: “The right to privacy implies a right to protect one’s thought, conscience or religious belief and practice from coercive and unjustified intrusion; and, one’s body from unauthorized invasion; the right to freedom of thought, conscience or religion implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary to one’s religious belief.”
The Ogun State High Court has had course to interpret Section 37 of the Constitution along with the right to private data guaranteed by the National Identity Management Commission Act in the case of Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v National Identity Management Commission (Unreported)
SUIT NO. AB/83/2020 delivered on the 15th day of July 2020. According to the presiding judge, A.A. Akinyemi, J. (now JCA) held as follows:
“The kernel of both the provision of section 37 of the Constitution and these illuminating decision is, to my mind, that privacy of a citizen of Nigeria shall not be violated. From these decisions, privacy to my mind, can be said to mean the right to be free from public attention or the right not to have others intrude into one’s private space uninvited or without one’s approval. It means to be able to stay away or apart from others without observation or intrusion. It also include the protection of personal information from others. This right to privacy is not limited to his home but extends to anything that is private and personal to him including communication and personal data.”
The fundamental right to freedom of religion was the subject of interpretation in the case of the Lagos State Govt. and Ors vs. Asiyat AbdulKareem (2022) LPELR-58517(SC), where the Supreme Court of Nigeria granted the use of hijab by female Muslim students in Lagos State Government-owned schools. In a split decision of 5-2, the Justices of the apex court dismissed an appeal by the Lagos State Government and upheld the earlier judgement of the Court of Appeal which had ruled that the ban on hijab was discriminatory against Muslim students in the state.
Kudirat Kekere-Ekun JSC (now CJN) held that the ban on wearing of hijab violated the Muslim students’ rights to freedom of thought, conscience, religion, the dignity of human persons and freedom from discrimination guaranteed by the 1999 Constitution guaranteed by Sections 38 and 42 of the Constitution. Olukayode Ariwoola CJN (as he then was), Uwani Aji JSC, Mohammed Garba JSC, Justice Tijjani Abubaka JSC concurred with the leading judgment while John Inyang Okoro JSC, and Justice Emmanuel Agim JSC dissented.
In view of the affirmation of the fundamental rights to privacy and freedom of thought and conscience by both Court of Appeal and Supreme Court of Nigeria, the members of the House of Representatives are advised to review the controversial bill on compulsory voting without any further delay. In 2015, the card reader machines introduced by INEC was a game charger in the accreditation of voters as it eliminated ghost voters. But the Supreme Court held that the card reader machine had not effectively replaced manual accreditation of registered voters in an election. It also said the card reader’s report alone was insufficient to prove allegations of over voting and non-compliance.
In 2023, INEC introduced BVAS machines for accreditation of voters and IREV for the transmission of election results. In the Election Guidelines, it was stated that the BVAS machines and the IREV would be deployed to enhance the credibility of the elections. Even though INEC said that there were glitches in the transmission of results for the presidential election, the Supreme Court held that the use of BVAS machines and IREV were not backed by the Electoral Act and the Constitution.
In view of the rejection of the introduction of the electronic devices for Nigerian elections by the Supreme Court and other Nigerian courts, the National Assembly should, as a matter of urgency, amend the Electoral Act to provide for the BVAS machines and IREV for future elections in the country. This ought to take precedent over the planned introduction of compulsory voting in the Electoral Act.
The National Assembly should also amend the Electoral Act to incorporate the recommendations of the Uwais Electoral Reform Panel on the unbundling of the INEC, proportional representation. conclusion of election petitions before the inauguration of winners of elections and creation of electoral offences commission. Apart from the possibility that compulsory voting may be declared illegal under the current political dispensation, it is practically impossible to prosecute millions of Nigerian voters who may decide to boycott national and local elections that have been reduced to the periodic renewal of the misgovernance, corruption and abuse of power by the pampered members of the political class.
Having regard to the state of the law, compulsory voting cannot be legalized in vacuo. Since section 14 (2) of the Constitution provides for popular participation of citizens in the democratic process, compulsory voting may be justified if Chapter II of the Constitution thereof is made justiciable. In holding that the fundamental objectives and directive principles of state policy are not justiciable, Nigerian courts have never considered section 224 of the Constitution which stipulates that, “The programme, as well as the aims and objects of a political party shall conform with the provisions of Chapter II of this Constitution.”
Neither have the courts considered sections 52, 94, 135, 140, 142, 149, 180, 185, 187 and 194 of the Constitution, which require the President, Vice President, Ministers, Legislators, Governors, Deputy Governors, Commissioners and Special Advisers to take and subscribe to the oaths of allegiance and office set out in the Seventh Schedule to the Constitution. Before assumption of office, each of these public officers is mandatorily required to swear or affirm to “strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria.”
The point that I am struggling to make is that by the combined effect of the relevant provisions of the Constitution, all political party and members of the executive and legislature are under a legal obligation to comply with the provisions of the Fundamental objectives and directive principles of state policy enshrined in chapter II of the Constitution. To that extent, compulsory voting cannot be legalized in vacuo.
Since Section 14 (2) of the Constitution provides for the popular participation of citizens in the democratic process, compulsory voting is justified if Chapter II thereof is made justiciable. More so, that Article 13(1) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act stipulates that every individual shall have the right to participate freely in the government of their country, either directly or through freely chosen representatives, in accordance with the provisions of the law. Therefore, citizens can be justifiably compelled to vote if the socio-economic rights of the Nigerian people set out in chapter II of the Constitution are made justiciable