Special to USAfrica magazine (Houston) and USAfricaonline.com, first Africa-owned, US-based newspaper published on the Internet
Chibuzo Aguocha, managing attorney at Whitestone Attorneys In Lagos, Nigeria, is a contributing Editor of USAfricaLIVE and USAfricaonline.com
The Presidential candidate of the Labour Party, Peter Obi on Friday, September 2, 2022 while in Germany as part of his tour to various countries to sell his candidacy to Nigerians in Diaspora, stated that Nigerians in Diaspora “must have a voice” by 2027 election “via absentee ballots”. This statement is quite welcoming for Nigerians in Diaspora who yearn for participation in the election of people who will pilot the affairs of their beloved country.
As laudable as this statement of Mr. Obi is, certain legal impediments must be addressed before its fruition. It is the intention of this piece to highlight the various impediments therein, proffer possible solutions and consider the feasibility of Peter Obi’s statement with regards thereto.
Whereas, the Nigeria Electoral Act 2022 and the Constitution of the Federal Republic of Nigeria 1999 (as amended) do not make provision for Nigerian citizens who are in Diaspora to vote in any Nigerian election(s). The laws themselves do not define who a voter is, but only streamlined voters for the purpose of election and states that every Nigerian Citizen who has attained the age of eighteen years and who resides in Nigeria is eligible to vote.
The Electoral Act 2022 is silent on the question of Diaspora voting. Section 9, Part III, of the Act, on the National Register of Voters and Voters Registration, does not expressly define a voter. It only makes reference at section 9 (1) (a) and (b) to persons: “entitled to vote in any Federal, State, Local Government or Federal Capital Territory Area Council election” and “within a disability status disaggregated by type of disability.” Also sections 77(2) and 117 (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provide for the elections of members of the National Assembly and State House of Assembly respectively, state as follows:
“Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house, shall be entitled to be registered as a voter for that election.”
With regards to Governorship election, section 178 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows:
“Every person who is registered to vote at an election of a member of a legislatives house shall be entitled to vote at an election to the office of Governor of a State.”
A similar provision is Section 132 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides with respect to Presidential election states as follows:
“Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of President.”
A combined reading of the above Electoral and Constitutional provisions is to the effect that only Nigerians who have attained the age of eighteen years and are resident in Nigeria, can vote in any Nigeria Election(s). These provisions are to the extent that residence is a sine qua non for voting, by necessary implication exclude Nigerians in Diaspora. It is trite principle in the interpretation of statutes that the express mention of one thing is the exclusion of all others.
It is then pertinent to ask at this juncture whether or not a Diaspora voting is possible in Nigeria?
The International Institute for Democratic & Electoral Assistance (IDEA) affirms that Belgium, Canada, United Kingdom, USA are some of the western nations with a mature Diaspora voting mechanism. IDEA also establishes that Angola, Benin, Burkina Faso, Kenya (as recent as 2022), Morocco, Togo and South Africa among others, have implemented Diaspora voting into their electoral practices. The implication is that if the identified African countries, including a neighbouring state, can implement Diaspora voting, there cannot be an objective rationale for discriminating against established Nigerian Citizens who wish to exercise their rights to participate. This Writer submits that this discrimination of Nigerians in Diaspora from voting in Nigeria election runs contrary to the clear provisions of section 42 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states as follows:
“a citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person- be subjected either expressly by, or in practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria or of other communities , ethnic groups, place of origin, sex, religions or political opinions are not made subject.”
Having stated the foregoing, Peter Obi has rekindled the hope of Nigerians in Diaspora voting rights. But how can Peter Obi achieve this? Is this promise feasible in the face of the challenges and objections posed by the legislations in Nigeria against Diasporan voting? Is Peter Obi’s word in this regard just a statement made in the euphoria of Nigerian Diasporans meeting which he addressed them?
The intention of Peter Obi however laudable is not without some legal hurdles which may be beyond Peter Obi to implement, such issue of Diaspora Voting cannot be made by an executive Order or by a FIAT, if he becomes President. This is because there is a core constitutional issue regulating same as espoused in the constitutional provisions earlier highlighted in this write-up. The issue of Diaspora voting would require constitutional amendment and knowing the rigors involved in constitutional amendment, it will entail a lot of lobbying, political persuasion, a shift in attitude and ideology to achieve same. However, considering the character and disposition of Peter Obi being someone who keeps to his words, it is expected that he will be able to pull this through and have people buy into his idea. It should however be noted that this is not entirely up to Peter Obi to implement as other stakeholders must buy into this laudable vision of his in making Diasporans eligible to vote. It will take a lot of political engineering to make it happen.
One of such constitutional issues to be dealt with is the provision in section 132 (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states that; “For the purpose of an election to the office of President, the whole of the Federation shall be regarded as one constituency.”
Section 134 (2) (a) and (b) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), on the required number of votes to determine the winner of a presidential election, also provides as follows:
A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
(a) He has the highest number of votes cast at the election.
(b) He has not less than one-quarter of the votes cast at the election in each of at least two-third of all the States in the Federation and the Federal Capital Territory, Abuja.
Sequel to the above provision of the Constitution, the following questions would have to be deal with to determine the feasibility of Peter Obi’s proposition:
• Where will the Diasporans be situate within the context of the above constitutional provision (Section 134(2) (a) and (b))? Under which State or Unit would the votes of Nigerians in Diaspora be brought in order to determine the highest number of votes and geographical spread in a Presidential election?
• Would the Diasporan votes be grouped separately from the votes of Nigerian Citizens who are resident in Nigeria or will the Diasporan votes be credited to their individual states of origin?
It is my opinion that during registration of voters, Nigerians in Diaspora can be allowed to register online and their residence can be pegged at their State of Origin. This would however involve the use of a more advance technology for the purpose of making sure that such registrations are properly done (e.g. data capturing).
In the alternative, it is posited that since Embassies are a sovereign state of the particular Country they represent, a system can be developed whereby Nigerians in Diaspora can have their votes collated at the Nigeria Embassy in the country where they reside and electronically transmitting same as provided in the Electoral Act 2022.
Synthesizing the foregoing, it is recommended as follows:
1. Legislators, irrespective of ideological leanings, seize the political will to enact the necessary legislation to place Diaspora voting on the statute book without further delay.
2. Amendments be made to the Electoral Act to expressly define a “voter” for drafting precision.
3. Since the legal impediments of Diaspora voting either wittingly, or unwittingly, creates two categories of citizens. That is, those within Nigerian borders and those domiciled abroad; that dichotomy constitutes an affront to the rule of law and the equality of persons. There cannot be two categories of citizens within the 1999 Constitution. Therefore, the lacuna created by the Electoral Act disenfranchisement of Nigerians in Diaspora should be tackled urgently via amendment.
4. It is also recommended that Nigerians in Diaspora can travel down to Nigeria to register and then vote during the general election which is done every 4 years. This can be possible where the Nigerians in Diaspora are really patriotic and determined to participate in electing those who will pilot the affairs of their dear nation every four (4) years.
5. Perhaps the biggest impediment is the process of amending the Nigerian Constitution in view of the rigorous process laid down for the amendment of the Constitution to make this happen. It is difficult but not insurmountable.