ARTICLES

Ballot or bullet: Protecting the right to vote in Nigeria

Basil Ugochukwu

PhD Candidate and Legal Process Instructor, Osgoode Hall Law School, York University, Toronto, Canada

SUMMARY

This article aims to construct a new paradigm for understanding the right to vote in Nigeria. Following strong indications that the 2011 Nigerian elections were managed better than in previous years, it is to be hoped that future elections can be built on its relative success. Therefore, as the country appears to have a handle on its electoral pathologies (albeit relatively speaking), the article examines one way of providing this assurance by placing the Nigerian voter at the centre and not the margins of the electoral process. It analyses the right to vote and what it means to the average Nigerian voter. Its starting position is that the right to vote is nowhere explicitly enshrined in the Nigerian Constitution or its electoral laws. Where, universally speaking, to vote is either a legal or constitutional right, the article argues that in none of those conceptions does such a right exist in Nigeria. Further, it shows how the Nigerian legal and electoral systems inordinately prioritise the rights of political parties and their candidates in elections over and above those of the ordinary voter, an issue which it is contended has to be satisfactorily addressed to meaningfully build upon the gains of the 2011 elections.

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* LLB (Abia State), LLM (Central European, Budapest); ugochukwubc@yahoo.com. I am grateful to Prof Faisal Bhabha for comments on an earlier draft of the manuscript.
1 See O Adeniyi 'Divided opposition as boon to African incumbents' http://www.wcfia.harvard.edu/fellows/papers/2010-11/Paper_Adeniyi_final.pdf (accessed 10 May 2012); 'Nigeria's elections, despite alleged vote buying, was most credible since 1999' Touch Base http://www.touchbaseonline.ca/?p=1716 (accessed 10 May 2012), stating that '[c]ivil society watchdog groups, including the Abuja-based coalition known as the Elections Situation Room, say electoral reforms initiated under the leadership of elections commission chief Attahiru Jega have enabled greater transparency in the 2011 polls. International observer groups also said the polls were the most credible since 1999.'
2 The fraud-ridden elections of 2003 and 2007 coincided with PDP's near total dominance of the two arms of the National Assembly. In 1999 the party returned 59 members of a 109-seat senate and 206 members of a 360-seat house of representatives. In 2003 they returned 76 senators and 223 house members, while in 2007 the party had 87 senators and 263 house members. By 2011 its share fell to 71 senators and 202 house members. Ten parties are represented in the 2011 National Assembly, unlike previously when only a handful of the parties returned members. See, generally, P Lewis's Nigeria Country Report (Cape Town: Centre for Social Science Research, 2011) http://www.africanlegislaturesproject.org/sites/africanlegislaturesproject.org /files/ALP%20Nigeria%20Country%20Report_0.pdf (accessed 11 May 2012).
3 See eg H Ibrahim '2011 polls: NGOs give INEC pass mark' Saturday Tribune http://www.tribune.com.ng/sat/index.php/news/4080-2011-polls-ngos-give-inec-pass-mark.html (accessed 11 May 2012).
4 See 'Sahara reporters interview prominent Nigerian activist Innocent Chukwuma' http://saharareporters.com/video/sahara-reporters-interviews-prominent-nigerian-activist-innocent-chukwuma (accessed 11 May 2012). Chukwuma, a former Chairperson of the Transition Monitoring Group, TMG, Co-ordinating Committee, stated that the INEC was 'arguably neutral' and that the incumbent President did not show an inclination to be particularly 'overbearing'.
5 See 'Nigeria election: Riots over Goodluck Jonathan win' http://www.bbc.co.uk/news/world-africa-13107867 (accessed 8 September 2012). See also Human Rights Watch 'Nigeria: Post-election violence killed 800' http://www.hrw.org/news/2011/05/16/nigeria-post-election-violence-killed-800 (accessed 8 September 2012).
6 PE Ofili 'Provocative discourse and violence in Nigeria's 2011 elections' (2011) 17 The Africa Portal Backgrounder 1.
7 See Olisa Agbakoba v Director, State Security Service (1994) 6 NWLR (Pt 351) 475 (NCA). See also OC Okafor 'The fundamental right to a passport under Nigerian law: An integrated viewpoint' (1996) 40 Journal of African Law 53.
8 P Schmitter & TL Karl 'What democracy is ... and is not' (1991) 2 Journal of Democracy 75: 'For some time, the word democracy has been circulating as a debased currency in the political market place. Politicians with a wide range of convictions and practices strove to appropriate the label and attach to it their actions. Scholars, conversely, hesitated to use it - without adding qualifying adjectives - because of the ambiguity that surrounds it.' See also S Lindberg Democracy and elections in Africa (2006); M Halperin 'Guaranteeing democracy' (1993) 91 Foreign Policy 106.
9 Taken from an address by former United States President Abraham Lincoln delivered at Gettysburg, Pennsylvania on 19 November 1863, http://history1800s.about.com/od/abrahamlincoln/a/gettysburgtext.htm (accessed 11 May 2012): 'It is rather for us to be here dedicated to the great task remaining before us - that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion - that we here highly resolve that these dead shall not have died in vain - that this nation, under God, shall have a new birth of freedom - and that government of the people, by the people, for the people, shall not perish from the earth.'
10 A Blais etal'Deciding who has the right to vote: A comparative analysis of election laws' (2001) 20 Electoral Studies 41.
11 R Dahl Democracy and its critics (1989) 233.
12 JA Gardner 'Liberty, community and the constitutional structure of political influence: A reconsideration of the right to vote' (1997) 145 University of Pennsylvania Law Review 893 900. See also F Zakaria 'The rise of illiberal democracy' (1997) 76 Foreign Affairs 22.
13 As above.
14 As above.
15 (1964) 376 US 1 17.
16 J Kirby 'The constitutional right to vote' (1970) 45 New York University Law Review 996.
17 As above.
18 As above.
19 As above.
20 J Ayoade 'Electoral laws and national unity in Nigeria' (1980) 23 African Studies Review 42.
21 As above.
22 As above.
23 E Azinge 'The right to vote in Nigeria: A critical commentary on the open ballot system' (1994) 38 Journal of African Law 173.
24 Cited by Azinge (n 23 above).
25 H Lardy 'Is there a right not to vote?' (2004) 24 Oxford Journal of Legal Studies 311.
26 As above.
27 As above.
28 As above.
29 As above.
30 As above. See also Blais et al (n 10 above) 43-58.
31 Azinge (n 23 above) 174.
32 A Kirshner 'The international status of the right to vote' http://www.demcoalition.org/pdf/International_Status_of_the_Right_to_Vote.pdf (accessed 11 May 2012).
33 As above. For an analysis of the dilemma in India, see R Kadambi 'Right to vote as a fundamental right: Mistaking the woods for trees. PUCL v Union of India' (2009) 3 Indian Journal of Constitutional Law 181.
34 As above. Taking the South Korean Constitution as sample, it provides in art 41 that '[t]he National Assembly is composed of members elected by universal, equal, direct, and secret ballot by the citizens', while art 67 thereof provides that '[t]he President is elected by universal, equal, direct, and secret ballot by the people'.
35 Kirshner (n 32 above) 8.
36 As above.
37 As above.
38 Azinge (n 23 above) 174.
39 A Omakoji 'The role of the courts in the enforcement of electoral rights through election complaints: A comparative study of Nigeria and the United Kingdom' LLM dissertation, Central European University, 2009 http://goya.ceu.hu/search (accessed 10 May 2012).
40 My emphasis.
41 Sec 38(3).
42 Sec 24(1).
43 Secs 33-46 of the 1999 Constitution, as amended.
44 See eg B Ugochukwu Democracy by court order: An analytical evaluation of the 2007 election petition tribunals in Nigeria (2009).
45 See sec 285 of the 1999 Constitution, as amended.
46 See sec 145 of the Electoral Act 2010, as amended.
47 (1961) 1 All NLR 277 (NFSC).
48 See T Abayomi 'Continuities and changes in the development of civil liberties litigation in Nigeria' (1990-1991) 22 University of Toledo Law Review 1035.
49 (1999) 7 NWLR (Pt 611) 355 (NSC).
50 G Kateb 'The moral distinctiveness of representative democracy' (1981) Ethics 357. See also Gardner (n 12 above) 897.
51 T Ogowewo 'Wrecking the law: How article III of the Constitution of the United States led to the discovery of a law of standing to sue in Nigeria' (2000-2001) 26 Brooklyn Journal of International Law 527.
52 Kirshner (n 32 above) 32.
53 P Karlan 'Ballots and bullets: The exceptional history of the right to vote' (20022003) 71 University of Cincinnati Law Review 1345.
54 The United States Supreme Court has, however, held consistently that art I(2) of the Constitution provides a legal basis for the right to vote in federal elections. See United States v Classic (1941) 313 US 299 ('The right of the people to choose ... is a right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right.') See also Harper v Virginia Board of Elections (1966) 383 US 663. On the other hand, it has been suggested that the right to vote is only a 'fundamental interest' developed along with other similar interests by the US Supreme Court of the Earl Warren era. Apart from the right to vote, that Court also added others like the rights to criminal appeals and interstate travel. See G Gunther Constitutional law (1985) 588. However, whether seen as a right or interest, the same Court in Reynolds v Sims (1964) 377 US 533 561 held that '[u]ndoubtedly the right of suffrage is a fundamental matter in a free and democratic society. Especially since the right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights, any alleged infringement of the right of citizens to vote must be carefully and meticulously scrutinised.' H Lardy 'The American Supreme Court and the right to vote: Early doctrine and developments' (1992) 23 Cambrian Law Review 69.
55 (1966) 383 US 663.
56 Davis v Bandemer (1986) 478 US 109.
57 City of Mobile v Bolden (1980) 446 US 55. The dilution which is alleged in such cases has been defined as a claim 'that the election structure when superimposed upon racially-oriented politics produces a situation that deprives them of the benefit of their numbers in the political process. They are thus deprived of the value voting.' See K Butler 'Constitutional and statutory challenges to the election structures. Dilution and the value of the right to vote' (1981-1982) 42 Louisiana Law Review 851.
58 (2000) 531 US 98.
59 R Pildes 'The future of voting rights policy: From anti-discrimination to the right to vote' (2005-2006) 49 Howard Law Journal 741 759.
60 (20 03) 22 7 DLR (4th) 1.
61 Figueroa (n 60 above) para 19.
62 Kirshner (n 32 above) 17.
63 (1997) 1 GLR 47.
64 Tehn Addy (n 63 above) 50.
65 Tehn Addy (n 63 above) 52-53.
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67 E Onwudiwe & C Berwind-Dart 'Breaking the cycle of electoral violence in Nigeria' (2010) 263 Special Report 1 http://www.usip.org/files/resources/SR263-Breaking_the_Cycle_of_Electoral_Violence_in_Nigeria.pdf (accessed 12 May 2012); E Obadare 'Democratic transition and political violence in Nigeria' (1999) 24 Africa Development 199 ('Politics and violence are like Siamese twins in Nigeria. Political activity has always featured a notable degree of violence...').
68 See BU Nwosu 'Civil society and electoral mandate protection in South Eastern Nigeria' (2006) 9 The International journal of Not-for-Profit Law 20.
69 Global Rights Election mandate protection toolkit 2006 http://www.globalrights.org/site/DocServer /Election_Mandate_Protection_Toolkit_2006.pdf?docID=11083 (accessed 12 May 2012).
70 Global Rights (n 69 above) 8.
71 A Okoli & S Okobi 'Mandate protection: JDPC Mobilises 10 000' This Day http://www.thisdaylive.com/articles/mandate-protection-jdpc-mobilises-10-000/75639/ (accessed 12 May 2012).
72 OA Adeoye 'Godfatherism and the future of Nigerian democracy' (2009) 3 African Journal of Political Science and International Relations 268 (defining the godfather as 'a kingmaker, boss, mentor, and principal'); S Hanson 'Nigeria's godfather syndrome' Analysis Brief, Council on Foreign Relations, 2007 http://www.cfr.org/nigeria/nigerias-godfather-syndrome/p13077 (accessed 11 May 2012) ('political elites who sponsor candidates [for elections] with the understanding that they will reap the financial benefits once the candidate takes office'); Human Rights Watch 'Criminal politics: Violence, "godfathers" and corruption in Nigeria' (2007) http://www.hrw.org/sites/default/files/reports/nigeria1007webwcover_0.pdf (accessed 12 May 2012).
73 See Ugochukwu (n 44 above) 28.
74 OO Olarinmoye 'Godfathers, political parties and electoral corruption in Nigeria' (2008) 2 African Journal of Political Science and International Relations 66.
75 As above. See also JC Scott Comparative political corruption (1973). But for a more detailed understanding of the relationship between godfatherism and political violence, see IO Albert 'Explaining 'godfatherism' in Nigerian politics' (2005) 9 African Sociological Review 79.
76 See Hanson (n 72 above).
77 See Ugochukwu (n 44 above) 39. See also Onuoha v Okafor (1983) NSCC 494, where the Nigerian Supreme Court held that questions about the choice of candidates by political parties are non-justiciable political questions. This judgment gave complete control of candidate nominations to party leaders who wielded that power arbitrarily.