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The contract of Nigerian citizenship and diaspora voting

By ‘Femi D. Ojumu
07 September 2022   |   3:40 am
In civilized democracies around the world, the constitutional architecture of public offices rightly prioritises the office of the president, prime minister, governor, mayor, member of parliament etc.

‘Voting is the most precious right of every citizen, and we have a moral obligation to ensure the integrity of the voting process’ Hilary Rodham Clinton.

In civilized democracies around the world, the constitutional architecture of public offices rightly prioritises the office of the president, prime minister, governor, mayor, member of parliament etc. Now, none of those offices would exist but for those who put them there and, therefore, to whom they are ultimately accountable: citizens.

The hypothesis therein is that the office of the citizen or, the citizen, is, upon the singular criterion of the power to hire and fire; more important that of the president, prime minister, mayor, governor, member of parliament or national assembly member! That is because all those office holders can be impeached for criminality, wrongful acts or omissions or a combination thereof by citizens, through their elected representatives. More importantly, sovereignty belongs to the people (citizens) of Nigeria from whom government derives all its powers and authority by virtue of section 14 (1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, (“the Constitution”). What would be the point of any government without citizens anyway?

Who then is a citizen? The Constitution specifies 3 categories of citizenship; first, by birth; second, by registration, and third, by naturalisation. Citizenship, by virtue of section 25 (1) (a), (b) and (c), encompasses; every person born in Nigeria before independence, 1st October 1960, either of whose parents or any of whose grandparents belongs to, or belonged to, an indigenous Nigeria community. It includes every person born in Nigeria post-independence, either of whose parents, or grandparents, or any of whose grandparents is a Nigerian citizen; and every person born outside Nigeria either of whose parents is a Nigerian citizen.

Subject to the provisions of section 26 therein and strict residency requirements, a person, whether single, or married to Nigerian citizen, may be registered as a Nigerian citizen if such a person is of good character, establishes a clear intention to be domiciled in Nigeria, takes the statutory oath of allegiance to the country. Section 27 of the Constitution also establishes the modus operandi of citizenship by naturalisation upon similar foundations as that of registration.

Thus, a de facto social contract is established by the Constitution between citizens and government in that the “security and welfare of the people shall be primary purpose of government”, and the “participation by the people (citizens) in their government shall be ensured in accordance with the provisions of this Constitution” Section 14 (1) (a), and (b) therein, establishes that on the one hand; and, the fact that the people must abide by the laws of the land and, when abroad, obey the laws of those countries, on the other hand. That social contract in turn entitles, upon compliance with the relevant laws, people to the fundamental rights embedded in sections 33 through 43 inclusive of the Constitution. These include the right to: life, dignity of the human person, personal liberty; private and family life; freedom of thought, conscience and religion; freedom of expression and the press; peaceful assembly and association; freedom of movement; freedom from discrimination; and the right to acquire and own immovable property anywhere in Nigeria. These rights are not inviolable and may lawfully be derogated pursuant to section 45 (1) (a) and (b) of the Constitution in the interest of defence, public safety, public order, public morality or public health.

Today, September 7, 2022, Nigerian citizens domiciled abroad that is, Nigerians in diaspora, are not legally allowed to vote in Nigerian elections from their countries of domicile. In other words, they have been, and are being, disenfranchised and discriminated against.

This is a clear and present violation of the explicit provisions of section 42 (1) (a) which establishes that “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 the 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, places of origin, sex, religions or political opinions are not made subject.”

The extant discrimination against Nigeria’s own citizens by the state, in violation of established constitutional provisions is perplexing and raises several pertinent questions.

One, is diaspora voting technology rocket science in the 21st Century? Alas, it is not! Afterall, if today’s smart encryption technology enables natural and unnatural persons to undertake secure financial transactions on a variety of portable devices, across continents and diverse time zones, why not electronic voting in diaspora?

Two, is there an absence of political will? Self-evidently! 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 recently as 2022!), Morocco, Togo and South Africa et al have implemented diasporan 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.

Three, is diasporan voting a back burner issue, which should not be prioritised? Again, the answer is no! Progressive nations consistently advance the security and welfare of their people (citizens), economic development, prudently manage public finances and, concurrently, discard outmoded practices and policies through innovative reforms. Put differently, citizens rightly expect performing governments to multi-task, and successfully deliver, on cross cutting themes impacting their lives whether its fiscal or monetary policy, national security, healthcare transformation, infrastructure development, education policy and electoral reform, the subject of this treatise.

Besides, the Nigerian Diaspora Commission estimates that there are approximately 17 million to 20 million Nigerians in diaspora who remit in excess of $ 25 billion annually to the Nigerian economy. If Nigerians in diaspora are good enough to remit billions to the home economy, which fuels economic growth in agriculture, education, healthcare, real estate, generates fiscal revenue for all tiers of government and, therefore, increasing GDP, upon what rational logic are they barred from participating in elections from their places of domicile?

To put this into some global perspective, the right to vote was routinely denied African- Americans and women in swathes of America, British and South African history. So, although the American Declaration of Independence was adopted on 4th July 1776, and the U.S. Constitution ratified on June 21, 1788, it took the abolition of slavery in 1865, through the 14th Amendment to the U.S. Constitution in 1866, for citizenship to be granted to all persons “born or naturalized in the United States, including former slaves and established “equal protection of the laws” for all citizens.

Whilst the 15th Amendment in 1870 enunciated that voting rights could not be “denied or abridged by the United States or by any state on account of race, colour or previous condition of servitude”, women only received the right to vote in the mid-19th Century with the adoption of the 19th Amendment; which impeded voter discrimination on the grounds of gender.

In the United Kingdom, women were only accorded full voting rights via the Representation of the People (Equal Franchise) Act 1928. This statute gave women equal voting rights as men irrespective of their age and property-owning status. And, after decades of apartheid in South Africa, free and fair multiparty elections were administered for the first time in 1994, which produced “Madiba” Nelson Mandela as the first indigenous President of that country.

The above abridged historical detour is necessary in order to afford legislators and policy makers a broader and deeper understanding of, and the rationale for, the robust quest for electoral reform manifested, in part, in the extant advocacy for diaspora voting rights. After all, it took centuries for African Americans, all South Africans and women, around the world to gain the right to vote. It would be perverse to turn a blind eye to this pressing issue which, arguendo, will reinforce greater participation by a wider critical mass and, by deduction, reduce perennial voter apathy. The inescapable corollary is democratic credence and not democratic deficiency.

Paradoxically, the Electoral Act 2022 is silent on the question of diaspora voting. Section 9, Part III, of the latter statute, on the National Register of Voters and Voter 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 “with a disability status disaggregated by type of disability.” A reasonable inductive interpretation to this provision is that “persons” therein assumes the same meaning as Nigerian citizens with the 1999 Constitution (supra), who have attained majority and suffer no legal impediments to participation in elections.

Synthesising the foregoing, it is recommended that: (1) legislators, irrespective of ideological leanings, seize the political will and enact the necessary reforms to place diaspora voting on the statute book without further delay; (2) amendments be made to the Electoral Act and expressly define a “voter” for drafting precision; (3) because the legal impediments to 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 disenfranchisement of Nigerians in diaspora should be tackled urgently.

Paraphrasing Hilary Clinton above, morality dictates that the integrity of the voting process will be enhanced, not diminished, with diasporan voting.

Ojumu Esq is the Principal Partner, Balliol Myers LP, a firm of legal practitioners based in Lagos, Nigeria.