Human rights lawyer and Senior Advocate of Nigeria, Femi Falana, has vehemently opposed a proposed bill aiming to make voting compulsory in Nigeria, deeming it “unconstitutional” and “impractical” given the current legal framework.
The bill, co-sponsored by House of Representatives Speaker Tajudeen Abbas and Labour Party lawmaker Daniel Asama Ago, seeks to amend the Electoral Act to mandate voting for all eligible Nigerians in national and state elections.
It proposes a six-month jail term or a ₦100,000 fine for non-compliance. Ago, representing Bassa/Jos North, argued the bill would combat voter apathy and reduce vote-buying, with Deputy Speaker Benjamin Kalu supporting it by citing Australia’s alleged success with compulsory voting in promoting civic responsibility.
However, Falana, in a statement titled ‘Compulsory Voting is Not Enough’, challenged the legislative initiative on constitutional grounds.
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He asserted that the bill conflicts with several provisions of the 1999 Nigerian Constitution, which guarantee citizens’ rights to privacy (Section 37), freedom of thought, conscience, and religion (Section 38).
Falana stated, “The said constitutional provisions protect the fundamental rights of the Nigerian people to privacy, freedom of thought and conscience, as well as the freedom to register and vote in national and state elections conducted in Nigeria. However, it is doubtful whether the Speaker and his colleagues have paid sufficient attention to the relevant provisions of the Constitution. Otherwise, they would have realised that the compulsory voting is constitutionally invalid in every material particular on the ground that it is inconsistent with Sections 37, 38, 77(2), 135(5) and 178(5) of the Constitution.”
He further argued that the legal basis for mandatory voting is shaky because Chapter II of the Constitution, outlining the Fundamental Objectives and Directive Principles of State Policy, remains non-justiciable.
“Compulsory voting cannot be legalised in vacuo. Apart from the possibility that it may be declared illegal under the current political dispensation, it is practically impossible to prosecute millions of Nigerians who may decide to boycott national and local elections that have been reduced to the periodic renewal of misgovernance, corruption, and abuse of power by pampered members of the political class,” Falana warned.
He added, “Since Section 14(2) of the Constitution provides for popular participation in the democratic process, compulsory voting may only be justified if Chapter II thereof is made justiciable.”
Falana criticized Nigerian courts for previously dismissing the enforceability of Chapter II without considering Section 224 of the Constitution, which mandates political parties to align their programs and policies with its principles.
He also referenced constitutional requirements for public officeholders to swear to uphold the Constitution, including these directive principles.
He insisted that both political parties and officeholders are legally bound to respect citizens’ socio-economic rights.
“The point I am struggling to make is that by the combined effect of the relevant provisions of the Constitution, all political parties and members of the executive and legislature are under a legal obligation to comply with the provisions of the Fundamental Objectives and Directive Principles of State Policy enshrined in Chapter II,” he stated.
He further invoked Article 13(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, which guarantees citizens the right to participate in government, asserting that “Citizens can be justifiably compelled to vote only if the socio-economic rights set out in Chapter II are made justiciable.”
Citing several legal precedents, Falana stressed that compulsory voting violates both legal and moral boundaries. He advised the National Assembly to “review the controversial bill without any further delay.”
The Senior Advocate also pointed out the lack of constitutional backing for electronic election devices like BVAS and IReV, despite their contribution to electoral credibility, noting that “The Supreme Court has ruled that the use of these devices is not yet recognised under the Electoral Act or the Constitution.”
Falana suggested that the legislative focus should instead be on amending the Electoral Act to formally integrate such technological innovations and implement key recommendations from the Uwais Electoral Reform Panel, such as unbundling INEC, introducing proportional representation, concluding election petitions before winners are sworn in, and establishing an electoral offenses commission.
He reiterated that unless Chapter II of the Constitution is made justiciable, enforcing compulsory voting would remain a legal contradiction.
“Having regard to the state of the law, compulsory voting cannot be legalised in vacuo,” Falana declared.
He supported his arguments by referencing cases like Nwali v Ebonyi State Independent Electoral Commission & Ors (2014), where the Court of Appeal ruled that open ballot voting infringed on the right to privacy.
He also cited Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001), where the Supreme Court upheld the right to freedom of thought and conscience, emphasizing that individuals cannot be coerced into actions conflicting with their beliefs.
Falana also pointed to Incorporated Trustees of Digital Rights Lawyers Initiative & Ors v National Identity Management Commission (2020), where a judge ruled that the right to privacy extends to personal data and decisions.
Additionally, he referenced the 2022 Supreme Court decision in Lagos State Govt & Ors v Asiyat AbdulKareem, which affirmed Muslim students’ right to wear the hijab in public schools, reinforcing constitutional protection for religious expression.
