The proposed inclusion of compulsory voting for Nigerians who are at voting age in the Electoral Act 2022 has further met stiff opposition, as the renowned human rights lawyer, Mr Femi Falana (SAN), has rebuffed the bill, insisting that the lawmakers are attempting to violate the constitution of the country. Mr Falana made this stance
The proposed inclusion of compulsory voting for Nigerians who are at voting age in the Electoral Act 2022 has further met stiff opposition, as the renowned human rights lawyer, Mr Femi Falana (SAN), has rebuffed the bill, insisting that the lawmakers are attempting to violate the constitution of the country.
Mr Falana made this stance in a statement he issued on Monday to address the controversial bill, which has already passed second reading before the House of Representatives, sponsored by the Speaker and Daniel Asama, a lawmaker from Plateau State, which stipulates penalties for eligible voters who fail to vote without valid justification, including a fine of N100,000, a six-month jail term, or both.
According to the representatives, the bill is aiming to address the continuous voter apathy the country has been witnessing in the recent elections and make Nigerians participate in their civic responsibilities through voting during the coming polls.
In the statement, Mr Falana questioned the familiarity of the lawmakers with the 1999 constitution, which is meant to protect the interest of all Nigerians to have their fundamental human rights, stating that the proposed bill will undermine the tenet of democracy by infringing on the rights of the citizens to freedom as stated in the constitution.
“I doubt that the speaker and his colleagues paid sufficient attention to the relevant provisions of the 1999 Constitution. Otherwise, they would have realised that 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,” he said.
“Otherwise, they would have realised that 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 human rights lawyer said.
“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.”
The senior lawyer further supported his claim by referencing past legal cases from various courts in the country that upheld the respect for human rights and freedoms in different instances.
He mentioned the Nwali v. Ebonyi State Independent Electoral Commission & Ors (2014) LPELR-23682 case, where the Court of Appeal ruled that open ballot voting, which made voters stand in line, was unconstitutional because it violated the right to privacy in Section 37.
He said the court unanimously held that “the appellant was entitled to the privacy of his decision to vote for a particular candidate… Forcing him to vote openly intrudes upon, interferes with, and violates the privacy of his decision, constituting a clear violation of his fundamental rights.
He further referred to the Supreme Court ruling on the case between Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001), where the court upheld a patient’s right to reject medical treatment based on religious belief.
According to Justice Ayoola’s leading judgement, “the right to privacy implies a right to protect one’s thought, conscience, or religious belief and practice from coercive and unjustified intrusion…a right not to be coerced into acting contrary to one’s religious belief.”
He continued, “Similarly, in Lagos State Government & Ors v. Asiyat AbdulKareem (2022) LPELR-58517(SC), the Supreme Court upheld the right of Muslim female students to wear hijabs in public schools, reinforcing the constitutional guarantee of freedom of religion and conscience under Sections 38 and 42.
“The ban on wearing a hijab violated the Muslim students’ rights to freedom of thought, conscience, and religion, as well as freedom from discrimination,” the court ruled.
Mr. Falana insisted that, instead of mandating that Nigerians vote, the National Assembly should prioritise amending the Electoral Act to address more pressing electoral concerns. He asked the legislators to clear the ambiguity in the use of electronic voting technologies such as the Bimodal Voter Accreditation System (BVAS) and the INEC Result Viewing Portal (IREV).
“In the Election Guidelines, it was stated that the BVAS machines and the IREV would be deployed to enhance the credibility of the elections,” he said.
“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.”
He also urged the lawmakers to incorporate the Uwais Electoral Reform into the ongoing reform, including the unbundling of the Independent National Electoral Commission (INEC), the introduction of proportional representation, the timely resolution of election petitions, and the creation of an electoral offences commission.
While he acknowledged that Section 14(2) of the Constitution supports the popular participation of citizens in the democratic process, he said the move to make it a compulsion undermines the tenets of democracy.
“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 misgovernance, corruption and abuse of power by the pampered members of the political class.
“The point that I am struggling to make is that by the combined effect of the relevant provisions of the Constitution, all political parties 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,” he said.
