Instead of legislating compulsory voting in Nigeria, the National Assembly should channel it’s energy to making the Bimodal Voters Accreditation System (BIVAS) and INEC Result Viewing (IREV) portal legal.

This was the position of Femi Falana, Senior Advocate of Nigeria (SAN), while analysing the proposal canvassed by Tajudeen Abbas, Speaker of the House of Representatives, seeking to prescribe punishment for Nigerians of voting age who fail to participate in elections.

Originally sponsored by Daniel Asama Ago, Labour Party (LP) member representing Bassa/Jos North Federal Constituency in the House, the bill, is meant to cure cases of voter apathy during elections, prescribing six months imprisonment for defaulters or option of N100,000 fine.

But Falana, dismissed the prescription as not only unconstitutional, but impractical under the current Nigerian legal framework, stressing that to make such work requires constitutional amendment.

Hon. Ago had at plenary last Thursday, argued that the bill would curb voter apathy and reduce vote-buying, while Abbas, citing similar laws in Australia, said such legislation was necessary to enhance civic responsibility.

But pooh-pooing the move Falana, argued in a statement on Monday titled: Compulsory Voting is Not Enough, that the bill was inconsistent with several provisions of the 1999 Constitution, guaranteeing citizens’ rights to privacy, freedom of thought, and freedom of conscience.

His said: “The Speaker of the House of Representatives probably wants Nigeria to join Egypt—the only African country out of 23 globally with provisions for compulsory voting. 

“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.

“The legal foundation for mandatory voting is shaky since Chapter II of the constitution outlines the Fundamental Objectives and Directive Principles of State Policy, which remain 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.

“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.”

Criticising the courts for dismissing the enforceability of Chapter II without considering Section 224 of the Constitution, mandating political parties to align their programmes and policies with the principles in that chapter, Falana stated, “Nigerian courts have never considered Section 224, which states that ‘the programme, as well as the aims and objects of a political party, shall conform with the provisions of Chapter II of this Constitution”.

He also cited sections of the constitution which require public officeholders to swear to uphold the Constitution, including the directive principles in Chapter II, maintaining that both political parties and officeholders are legally bound to respect the socio-economic rights of citizens.

“Each of these public officers is mandatorily required to swear or affirm to ‘strive to preserve the Fundamental Objectives and Directive Principles of State Policy contained in the Constitution of the Federal Republic of Nigeria.

“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 stressed.

Further invoking 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, he said, “citizens can be justifiably compelled to vote only if the socio-economic rights set out in Chapter II are made justiciable. The National Assembly is advised to review the controversial bill without any further delay.”

Falana, while lamenting the lack of constitutional backing for electronic election devices such as BVAS and IReV, despite their role in improving electoral credibility, said, “the Supreme Court has ruled that the use of these devices is not yet recognised under the Electoral Act or the Constitution.”

Canvassing that legislative focus should shift toward amending the Electoral Act to formally integrate such technological innovations and to adopt key recommendations from the Uwais Electoral Reform Panel, he listed the unbundling of INEC, introducing proportional representation, concluding election petitions before the swearing-in of winners, and establishing an electoral offences commission.

Arguing that unless Chapter II of the Constitution – containing the Fundamental Objectives and Directive Principles of State Policy – was made justiciable, enforcing compulsory voting would remain a legal contradiction.

His words: “Having regard to the state of the law, compulsory voting cannot be legalised in vacuo,” the lawyer declared.

Falana referenced Nwali v Ebonyi State Independent Electoral Commission & Ors (2014), where the Court of Appeal ruled that open ballot voting violated 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, emphasising that individuals cannot be coerced into actions that conflict with their beliefs.

Noting that in the case, the court reversed a disciplinary sanction on a doctor who had respected a patient’s religious refusal of blood transfusion, stressing that coercion undermines constitutional rights, he 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 beyond physical spaces to personal data and decisions.

On religious freedoms, he cited the 2022 Supreme Court decision in Lagos State Govt & Ors v Asiyat AbdulKareem, which upheld Muslim students’ right to wear the hijab in public schools, reaffirming that religious expression is constitutionally protected.