Legal Appraisal of the Proposed Mandatory Voting Bill in Nigeria: Implications for Citizens’ Rights under Nigerian Law

Introduction

The introduction of a bill in the House of Representatives seeking to amend the Electoral Act 2022 to make voting compulsory for eligible Nigerian citizens represents a significant development in Nigeria’s electoral jurisprudence. The bill proposes, inter alia, to criminalize failure to vote in national and state elections, prescribing penalties of a fine not exceeding ₦100,000 or imprisonment for a term not exceeding six months, or both.

This legal memorandum appraises the proposed legislation through the lens of the 1999 Constitution of the Federal Republic of Nigeria (as amended), relevant statutes, judicial pronouncements, and international legal standards to which Nigeria subscribes. The core issues for analysis are whether the bill is consistent with the fundamental rights enshrined in the Constitution and whether the criminalization of electoral abstention aligns with the principles of democratic governance and the rule of law.

Scope and Content of the Proposed Bill

The bill seeks to amend specific provisions of the Electoral Act 2022, notably Sections 9, 10, 12, and 47. A new subsection—Section 47(4a)—is proposed to read as follows:

“It shall be mandatory for all registered voters who have attained the majority age of 18 and above to vote in all national and state elections.

A person who has attained the Majority Age of 18 years who refuses to perform his civic duty to vote commits an offence and is liable on conviction, to a fine not more than ₦100,000 or imprisonment for a term not more than six months.”

The intention behind the bill, as gathered from legislative debates, is to address declining voter turnout and promote civic participation in the democratic process.

The Right to Vote under Nigerian Law

Constitutional Provisions

The right to vote is primarily derived from Section 77(2) of the 1999 Constitution (as amended), which provides:

“Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for the purposes of election to a legislative house, shall be entitled to be registered as a voter for that election.”

Similarly, Sections 132(5) and 178(5) of the Constitution affirm the right of citizens to vote in presidential and gubernatorial elections, respectively.

It is notable that the language of the Constitution frames voting as an entitlement rather than an obligation. There is no provision in the Constitution or in the Electoral Act 2022 which imposes a legal duty to vote, nor any penal consequence for abstaining from doing so.

Judicial Interpretation

In INEC v. Musa [2003] 3 NWLR (Pt. 806) 72 at 158–159, the Supreme Court emphasized that political participation is a constitutional right, but it did not construe such participation as a legal duty enforceable by sanction.

Furthermore, in Adesanya v. President of the Federal Republic of Nigeria [1981] 5 SC 112, the court underscored that where the Constitution grants a right, its exercise must be consistent with the freedoms and dignity of the individual. Compelling the exercise of a right—particularly through penal sanction—must therefore pass the test of legality, necessity, and proportionality.

Implications for Fundamental Rights

Freedom of Thought, Conscience and Expression

Section 38(1) of the Constitution guarantees the right to freedom of thought, conscience and religion, while Section 39(1) guarantees the right to freedom of expression. Voting, or choosing not to vote, may be an expression of individual belief, political dissent, or disillusionment with available options.

The African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap. A9, Laws of the Federation of Nigeria 2004, also protects these rights under Articles 8, 9, and 10. The right not to vote, as an exercise of political conscience, is implicitly protected under these provisions.

Proportionality and Justification of Restrictions

It is trite law that limitations on fundamental rights must be justified under Section 45(1) of the Constitution, which allows derogations only in the interest of defence, public safety, public order, public morality, or public health, and must be reasonably justifiable in a democratic society.

There is little to suggest that abstaining from voting poses any risk to public order or national security. Consequently, criminalizing such abstention may not meet the constitutional threshold for restricting fundamental rights.

In Director of SSS v. Olisa Agbakoba [1999] 3 NWLR (Pt. 595) 314, the Court of Appeal stressed that the burden lies on the government to justify any restriction on constitutional rights, and such justification must be demonstrably reasonable and necessary.

Comparative Perspectives

Mandatory voting regimes exist in jurisdictions such as Belgium and Australia. However, the enforcement mechanisms in those countries tend to be administrative rather than criminal. In most cases, the penalties are nominal and rarely enforced. Moreover, those systems are supported by robust electoral logistics, political accountability, and widespread civic education.

Importantly, in such jurisdictions, exceptions are built into the law to accommodate conscientious objectors, religious objectors, and those unable to vote due to personal circumstances—none of which is contemplated in the current draft of the Nigerian bill.

Legal and Practical Concerns

The proposed bill raises the following issues:
• Constitutional Validity: The bill may conflict with the clear constitutional framing of voting as a right rather than an obligation. As such, its enforceability could be challenged on grounds of constitutional inconsistency.
• Overcriminalization: Penal laws should be reserved for conduct that poses significant harm to society. Electoral abstention, absent any fraudulent or obstructive conduct, does not warrant criminal sanction.

• Implementation and Equity: Enforcement of the proposed law may disproportionately affect marginalized populations who, for economic or logistical reasons, are unable to vote. There is a risk of selective enforcement and further alienation from the political process.
• Alternative Approaches: Rather than resorting to criminal sanctions, the objectives of increased voter participation may be better served through investment in voter education, improvements in electoral transparency, and trust-building between the electorate and political institutions.

Conclusion

While the desire to improve civic engagement and electoral participation is commendable, any legal measure toward that end must be consistent with constitutional norms, fundamental rights, and principles of democratic governance. The proposed mandatory voting bill, in its current form, appears to exceed the permissible bounds of legislative authority by attempting to convert a constitutional right into a legal obligation, enforceable by penal sanction.

It is respectfully recommended that the National Assembly reconsider the approach proposed in the bill. Efforts should focus instead on electoral reform, civic education, and the removal of structural impediments to voting. Civic duty cannot be meaningfully cultivated through compulsion. In a democratic society, participation must be voluntary and informed, not coerced under threat of prosecution.

Chidi Ezenwafor, Esq., MCArb
Past Secretary, NBA Abuja Branch

Source: loyalnigerialawyer