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Falana to NASS: Without legal backing for IREV, BIVAS you’re wasting your time
Instead of wasting energy pursing the making of voting at elections for all Nigerians compulsory, the National Assembly has been told to channel same to making the Bimodal Voters Accreditation System (BIVAS) and INEC Result Viewing (IREV) portal legal rather than an option in the nation’s electoral system.
This was the position of Femi Falana, Senior Advocate of Nigeria (SAN), as he weighed in on the proposal being canvassed by Tajudeen Abbas, Speaker of the House of Representatives seeking to make it punishable for Nigerians of voting age not to participate in elections at all levels.
Originally sponsored by Daniel Asama Ago, Labour Party (LP) member representing Bassa/Jos North Federal Constituency in the House, the bill, meant to cure the cases of poor outings during elections, stipulates six months prison terms for defaulters or N100,000 fine.
But Falana, foremost rights advocate in Nigeria dismissed the move as not only unconstitutional but impractical under the current legal framework of the country, adding that to make it sail through required constitutional amendment.
Ago at plenary on Thursday, had argued that the bill would curb voter apathy and reduce vote-buying, while Abbas, citing similar laws in Australia, said such a law was necessary to enhance civic responsibility.
But pooh-pooing the move Falana, argued in a statement on Monday titled: Compulsory Voting is Not Enough, that the bill was inconsistent with several provisions of the 1999 Constitution, guaranteeing citizens’ rights to privacy, freedom of thought, and freedom of conscience.
His words: “The Speaker of the House of Representatives probably wants Nigeria to join Egypt—the only African country out of 23 globally with provisions for compulsory voting. 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.
“However, it is doubtful whether the Speaker and his colleagues have paid sufficient attention to the relevant provisions of the 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 legal foundation for mandatory voting is shaky since Chapter II of the constitution outlines the Fundamental Objectives and Directive Principles of State Policy, which remain non-justiciable. Compulsory voting cannot be legalised in vacuo.
“Apart from the possibility that it may be declared illegal under the current political dispensation, it is practically impossible to prosecute millions of Nigerians 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 pampered members of the political class.
“Since Section 14(2) of the Constitution provides for popular participation in the democratic process, compulsory voting may only be justified if Chapter II thereof is made justiciable.”
Criticising Nigerian courts for dismissing the enforceability of Chapter II without considering Section 224 of the Constitution, mandating political parties to align their programmes and policies with the principles in that chapter, Falana added: “Nigerian courts have never considered Section 224, which states 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.’”
He also cited sections of the constitution which require public officeholders to swear to uphold the Constitution, including the directive principles in Chapter II, maintaining that both political parties and officeholders are legally bound to respect the socio-economic rights of citizens.
“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 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,” he said.
Further invoking Article 13(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which guarantees citizens the right to participate in government, he said: “Citizens can be justifiably compelled to vote only if the socio-economic rights set out in Chapter II are made justiciable. The National Assembly is advised to review the controversial bill without any further delay.”
Falana, while lamenting the lack of constitutional backing for electronic election devices such as BVAS and IReV, despite their role in improving electoral credibility, said: “The Supreme Court has ruled that the use of these devices is not yet recognised under the Electoral Act or the Constitution.”
Canvassing that legislative focus should shift toward amending the Electoral Act to formally integrate such technological innovations and to adopt key recommendations from the Uwais Electoral Reform Panel, he listed the unbundling of INEC, introducing proportional representation, concluding election petitions before the swearing-in of winners, and establishing an electoral offences commission.
Arguing that unless Chapter II of the Constitution – containing the Fundamental Objectives and Directive Principles of State Policy – was made justiciable, enforcing compulsory voting would remain a legal contradiction.
His words: “Having regard to the state of the law, compulsory voting cannot be legalised in vacuo,” the lawyer declared.
Falana referenced Nwali v Ebonyi State Independent Electoral Commission & Ors (2014), where the Court of Appeal ruled that open ballot voting violated the right to privacy.
He also cited Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001), where the Supreme Court upheld the right to freedom of thought and conscience, emphasising that individuals cannot be coerced into actions that conflict with their beliefs.
Noting that in the case, the court reversed a disciplinary sanction on a doctor who had respected a patient’s religious refusal of blood transfusion, stressing that coercion undermines constitutional rights, he pointed to Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v National Identity Management Commission (2020), where a judge ruled that the right to privacy extends beyond physical spaces to personal data and decisions.
On religious freedoms, he cited the 2022 Supreme Court decision in Lagos State Govt & Ors v Asiyat AbdulKareem, which upheld Muslim students’ right to wear the hijab in public schools, reaffirming that religious expression is constitutionally protected.
Justice Centus Nweze was one of the seven S’Court justices that gave the judgement sacking Emeka Ihedioha and pronouncing Hope Uzodinma Governor of Imo State on January 14, 2020.
He later recanted when Ihedioha returned to the same court and declared that Uzodinma was no longer fit and proper to be governor – the only one out of the seven to hold a different view out of the seven-man panel in a dissenting judgement.
These were his exact words on March 3, 2020, with which he emphasised his position after disavowing his earlier position, to capture the impact and import of that event: “The decision of Nigeria’s Supreme Court on the Imo governorship election is wrong and will continue to haunt our (Nigeria’s) electoral jurisprudence for a long time to come.”
But, on Monday, February 6, 2023, Nweze himself, was to lead the same Supreme Court to give another highly controversial judgement – one – legal purists considered no less impactful and damaging to Nigeria’s legal jurisprudence.
It was the 3-2 Supreme Court decision that paved the way for Ahmad Lawan, former Senate President, to return to the Senate, despite being supposedly barred by an existing law forbidding politicians to contest for two different positions in an election circle.
Recall that Lawan, was one of the candidates that contested for the presidential ticket of the All Progressives Congress (APC), a few months earlier, which was eventually won by Bola Ahmed Tinubu, now President of Nigeria.
Many had practically laughed it off, dismissing him as a jester, when he returned with a fresh struggle for the Yobe North ticket for the Senate under the same APC.
But it turned out that the real joke was on these naysayer, who taunted, mocked and even pilloried the former Nigeria’s number three citizen, because in the end, he came out thumbing his chest and shinning his teeth in triumph.
Reason! On Monday, February 6, 2023, the Supreme Court practically wrenched the APC ticket from Bashir Machina, who had earlier picked it at the APC primaries months earlier and handed same over to Lawan.
Guess whom the mantle fell on to read the lead-judgement? The selfsame Nweze, who made the statement above. With two others in support, he went ahead to decapitate the decision of the Court of Appeal, which had earlier thrown into the thrash-can Lawan’s appeal to a Federal High Court decision slamming his claim to the ticket.
Interestingly, Lawan, seemed too ashamed to continue with the matter after the attempt at the appellate court collapsed. He had to hide under the umbrella of the APC, who appealed on his behalf to get the judgement at the apex court.
But you know what? On July 30, 2023, Centus Nweze, died! Just barely six months after the outing. He was just 64 – six years shy of age of retirement for Nigerian judges.
Now, the story. A little message-bearing-bird, squealed that the late eminent jurist didn’t die a happy man.
The establishment was said to have moved in to make him eat his words for stepping out of line in the Uzodinma case. The decision was supposed to be unanimous and giving a dissenting judgement was an affront – more like challenging the gods!
The Lawan outing was the height of teaching him a lesson on how to play ball next time. And play ball he did!
He was procured to read the lead judgement as a way to punish his impudence, underscore his vulnerability and prove where the real power laid.
An erudite scholar, judicial perfectionist and purist of the highest order, whose track record was known beyond the judicial circle, he not only became a wreck thereafter, and unable to live with his conscience, he apparently died a broken man.
Now, it is hard to authenticate this. Nweze is no longer alive to tell his story. But it all the same points as an indicator to the fact that a lot of water passes under the bridge in the nation’s high places, including the judiciary.
Were Nweze alive today, may be one day, in his memoir or other places, Nigeria could read the true story of what actually happened with Lawan, with powerful forces and with intimidation. But do we even need to go that far?
In which other country of the world has the homes of judges been burst open in the middle of the night – many still in their underpants or completely in their birthday suits?
In which other country, has the Chief Judge of the country suffered the fate meted out to Walter Onnoghen by the executive branch of government? Did we not see these with our own eyes?
Has Nigeria been the same ever since? So, if you looked around today and you didn’t find the Kayode Esos, Chukwudifu Oputas, Niki Tobis et al, who looked the military in the face and dispensed justice according to law, who do you blame?
Who is the culprit if the only people who you see are those who receive keys to mansions and sing lustfully – On Your Mandate We Shall Stand? Through where did water enter the coconut?
My name is Sunny Igboanugo, I’m The Tiny Voice!
After a groundswell of outraged from many Nigerians the Independent National Electoral Commission (INEC) on Friday, said it is putting forward the proposed nationwide voter revalidation exercise until after the 2027 general election.
Mohammed Haruna, spokesman of the commission, said in a statement, explained that the decision to shelve the move came from a meeting it held with Resident Electoral Commissioners (RECs).
Haruna, National Commissioner and Chairman of the Information and Voter Education Committee, said in the statement: “The proposed nationwide voter revalidation exercise was considered during the meeting, after which it resolved to postpone the exercise until after the 2027 General Election.”
Explaining the rationale for the exercise, which Joash Amopitan, INEC Chairman, said was initiated during the tenure of Mahmoud Yakubu, his predecessor, the commission, stressed that the exercise remained a “vital component” of its mandate to maintain a credible and up-to-date National Register of Voters.
The statement, added: “It is designed to verify and review existing voter records, ensure the accuracy of personal data, eliminate duplicate and ineligible entries, and strengthen the overall integrity of the voter register. The exercise also aims to provide an opportunity for registered voters to confirm their details and make necessary corrections where required.”
Reaffirming its commitment to delivering “free, fair, credible, and inclusive elections,” noting that the postponement is aimed at ensuring a smooth build-up to the 2027 polls, the commission said the Continuous Voter Registration (CVR), it had initiated, would run from April 2026 to January 2027, alongside the ongoing deployment of technologies like BVAS and a hybrid results transmission system.
Nigerian Bar Association (NBA), will favour a situation where Nigerian courts will no longer leave the interpretation of their orders to either parties in a dispute or the public at large, rather than making them as direct and clear as possible.
Afam Osigwe, Senior Advocate of Nigeria (SAN), President of the body, told his host on Politics Today, a public affairs programme on Channels Television that courts must avoid the use of complex phrases in their rulings.
Against the backdrop of the diverse interpretations being adduced by parties, lawyers and Nigerians to the order of the Court of Appeal that parties to the legal dispute in the African Democratic Congress (ADC), should maintain status quo ante bellum, the NBA boss, explained that it resulted from the use of the Latin maxim rather than a clear and unambiguous order to prevent confusion and misinterpretation.
Hear him: “I think, considering the confusion that is arising in our body polity in recent times, our courts should not make orders using such Latin maxims like status quo ante bellum or pendente lite.
“The court should make clear orders as to what it means so that there is no ambiguity. It (status quo ante bellum) creates confusion. We have rendered it almost meaningless.
“It has been stripped of any clear meaning, so our courts should avoid using such phrases and instead specify what orders they are making so that nobody will be left in doubt, and no administrative body will have to interpret it and try to give its own decision on it.”
Stressing on the use of the Latin phrase that means the situation as it existed before the war, the NBA president further stated that vague court orders often led to multiple interpretations, with different parties claiming victory.
“I see situations where people go away rejoicing that the order was in their favour, thereby giving room for mischief or for anybody to interpret it the way they want.
“Where a court has chosen to make an order, it should state clearly what it has set out to do and not hide behind any Latin maxims,” Osigwe added.
Arguing that while such expressions might not pose challenges in other jurisdictions, where laws were not deliberately disfigured, the Nigerian peculiar environment had made them not only confusing but difficult to apply in resolution of disputes.
Centus Nweze (JSC): Death of legal purist, irony of Nigerian judiciary
After public outcries, INEC recants, shelves voter-revalidation move
Stop using Latin phrases, make clear, unambiguous orders – NBA tells courts
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