Voting Rights of the Nigerian Diaspora

Guest Columnist By FEMI Falana

“No taxation without representation” was the battle cry of America’s war of independence from colonial rule. Correspondingly, “no remittance without representation” would be a fitting slogan for the on-going battle to enfranchise Nigerian citizens in the diaspora. Indeed, as studies have demonstrated, the Nigerian economy would grind to a screeching halt if the slogan were to be carried to its logical conclusion.

In fact, studies across West Africa (Migration and Remittances – Recent Development and Outlook, World Bank, 2017) have confirmed that countries such as Egypt, Senegal, Ghana and Nigeria hugely benefit from remittances from their citizens in the diaspora. Nigeria, in particular, has seen a steady increase in remittance in the last year, which rose to $22billion. It is an African record, and the fifth largest of such remittance in the world according to the World Bank.

Indeed, some scholars (such as the Hong-Kong based Ghanaian academic, Adams Bodomo and others) have done a comparative study between such remittances and the Overseas Development Assistance (ODA), and found that in certain cases remittances are far higher than ODA. This has called to question the continued relevance of ODA whose quantum and social impact in Africa is nothing to write home about. Although the country has spent a fortune on the education of Nigerians prior to emigrating abroad, it is sad to note that a number of countries in the West and Middle East are benefiting from their services due to unemployment at home.

However, having regard to the number of Nigerians living in the diaspora – certainly in the millions, The Economist dubs them Nigeria’s “secret weapon”, it is beyond question that they be given the opportunity to take part in the country’s electoral process by exercising their voting rights wherever they are located. Interestingly, Honourable Abike Dabiri, a former Chairman of the House of Representatives Committee on Diaspora, made an unsuccessful attempt to include the Diaspora voting rights in the 2010 Electoral Act. She had introduced a bill for the recognition of the voting rights of Nigerians living abroad. Much as she tried, the bill could not pass through the first reading as the members of the House of Representatives rejected it on the ground that the project was too expensive and essentially unripe for Nigeria. In rejecting the bill, the House failed to take cognizance of the fact that the issue of voting right is not a privilege but a right that must be protected and be guaranteed by law. Ordinary citizen should be able to cast a simple ballot from wherever they may live too.

It is submitted that by the combined effect of section 14 (2) (c), 7, 77, 130 of the Constitution, every citizen of Nigeria who has attained the age of 18 years and residing in Nigeria at the time of the registration of voters for elections is entitled to vote or be voted for in local government, legislative and presidential elections. See also section 12 (1) of the Electoral Act 2010 as amended. In Honourable Oluwafolajimi Akeem Bello & Ors. v. Independent National Electoral Commission & Anor. the plaintiffs who are Nigerian citizens living in the United States and Canada were desirous to vote in elections held in Nigeria without having to travel home. In the action filed at the Federal High Court at Abuja they sought a declaration that they were entitled to participate in the government of Nigeria by voting for candidates of their choice in exercise of their democratic rights. They also prayed for an order directing the defendants to set up registration centers and polling stations in all the high commissions and embassies of the Federal Republic of Nigeria.

In his considered judgment, the presiding judge, Adamu Bello J. (as he then was) upheld the democratic right of the plaintiffs to take part in elections conducted in Nigeria. On the urgent need for Nigeria to join other nations that have adopted the external voting system the learned trial judge held “Let me hasten to say that I should not be understood to mean that it is not desirable for Nigeria to join other nations that adopt the external voting. I believe strongly that the plaintiffs have made a good case and the time is ripe for Nigeria to give its citizens living abroad the opportunity to register and vote from abroad in any election in Nigeria without having to travel to Nigeria for that purpose.”

Upon coming to the conclusion that the plaintiffs had made a case for external voting the learned trial judge held that “The plaintiffs are not under any obligation to sponsor a Bill to the National Assembly to enact the enabling legislation to realize their goal, however, the 1st defendant can approach the National Assembly by sponsoring such a Bill for the sake of Nigerians in diaspora and in doing so, it can borrow a leaf from the countries that have already adopted the external voting.”

Be that as it may, there cannot be a better opportunity for revisiting this issue than now when the National Assembly has embarked on yet another review of the 1999 Constitution.

It is, therefore, submitted that Nigerians living abroad who satisfy the constitutional prerequisites are not precluded from being voted for in any election conducted in Nigeria

In recognition of the right of all Nigerian citizens to vote in national elections the right of prison inmates including convicts was upheld by the federal high court in the case of Victor Emenuwe & 4 Ors v. Independent National Electoral Commission (2014, unreported) In that case the applicants who were serving their jail terms at the Oko Prison in Edo state sought to enforce their right to vote during the 2015 general election. In granting the relief sought by the applicants the Federal High Court (per Liman J.) upheld the right of the applicants to vote in elections in line with sections 14(1), (2)(a)(b), 17(2)(a), 24(b)(c), 25, 72(2) and 49 of the Constitution and articles 13(1) and 20(1) of the African Charter on Human and Peoples’ Rights.

It was the view of the learned trial judge that “The defendants do not have the constitutional right to deny the Claimants their voting right. Being an inmate is not an offence that impedes their registration and voting right under Section 24 of the Electoral Act and that the exclusion of inmates in election conducted in Nigeria is illegal and ultra vires. ”Although the judge refused the request of the applicants to order the respondents to create voting centers in the prison yards he directed the defendant to make arrangement for all prisoners to vote in the polling centers that are close to the prisons where they are detained.

Thus, while Nigerians living abroad may be voted for in absentia they are debarred from voting in local elections on the ground that they did not reside in Nigeria at the time of registration of voters.

However, if they registered as voters in Nigeria before travelling out of the country to live in other countries it is submitted that they are entitled to vote in all elections conducted in Nigeria. To that extent, the Independent National Electoral Commission is duty bound to make provisions for them to vote in local elections. In view of Article 13 of the African Charter on Human and Peoples Rights which has recognised the human right of every citizen to participate freely in the government of their country either directly or through freely chosen representatives it is submitted that citizens living abroad are entitled to vote and be voted for in local elections.

In view of the enormous contributions of Nigerians living abroad to the socio-economic development of the country the time has come to amend the Constitution to recognise and protect their right to participate in all local elections conducted in the country. Since Nigerians living abroad are entitled to be voted for if they meet the requirements of the law the demand to participate in local elections by diaspora citizens should be limited to the amendment of Section 72 of the Constitution to provide for registration and voting in all the embassies and high commissions of Nigeria. This is not an unreasonable demand in view of the fact that not fewer than 28 countries in Africa have made provisions for their citizens living abroad to vote in local elections. In Ghana, for instance, the Human Rights Court recently ordered the Electoral Commission to “take all necessary steps to enable Ghanaians living abroad to vote in the forthcoming 2020 elections”. Former President John Kofi Agyekum Kufuor (2001-2009) had pushed through the Representative of the People Amendment Act, 2006, twelve years ago, recognising the diaspora vote, but it has simply not been implemented.

Elsewhere, in Zimbabwe, in the case of Bukaibemyu v ZEC Chairman and Ors, cc-12-17 (2017) ZELJ 03, also on the diaspora voting, it was originally laid before the country’s Supreme Court, which had upheld a decision of the lower court against the diaspora voting in 2012. It was heard again by the Constitutional Court in 2017. It was brought by a Zimbabwe citizen living in South Africa, who argued that the requirement that a voter must reside in the constituency in which he plans to vote violates his right as a Zimbabwean citizen residing abroad. The case of Richter v The Minister for Home Affairs and Ors (2009) ZACC, where the South African Constitutional Court had held: “Right to vote imposes an obligation on the State to take positive steps to ensure that it can be exercised…. to require registered voters who are living outside the country to return to the country to vote imposes an unreasonable obligation on them” was cited as a persuasive authority. The Zimbabwe Constitutional Court, however, rejected this argument, while upholding the restriction imposed on the diaspora vote.

The main distinguishing factor in both of these cases appears to be that in the opinion of the Court, the electoral commission in Zimbabwe had not denied the applicant the right to vote, but only that it prescribed the manner in which the vote was to be exercised. With respect to the justices of the court, the burden of travelling from one’s country of residence, which could be thousands of miles in some cases, could operate to mean an effective denial of the right to vote. That is precisely what the whole debate is about. Nonetheless, looking at things from the point of view of the electoral commission in Zimbabwe, there is a direct vote for constituency members of parliament in Zimbabwe, unlike in South Africa, where the vote is cast for the party, which later allocates seats to candidates.

There is no direct connection between a voter and the candidate as it is in the case of Zimbabwe. The extra requirement to reside in the constituency, it is thought, is to maintain a structural link between the voter and the elected, including the necessity to ‘know’ the candidate in order to make an informed judgment on his suitability as a representative of the people. It is an understandable reasoning, even if it remains unconvincing. It needs to be said, though, that this requirement should not apply in the case of a Presidential vote, because the whole country operates as one constituency for the purpose of the election.

In conclusion, addressing Nigerians living in Ghana in March this year, at the symposium organized by the Ghanaian Parliament to mark 25 years of democracy in the country, the Nigerian Senate President, Dr. Bukola Saraki, admonished the Nigerian community there to step up their pressure for the diaspora vote, as this would serve to strengthen the hands of legislators who are disposed to the idea back home. On that note of consensus from a significant establishment voice, it is a question of when, not if, Nigerians in the diaspora will have a vote. We hope it is sooner rather than later.