By Mobolaji E. Aluko, PhD
Coordinator, Board of Trustees, NDERG;
Professor of Chemical Engineering, Howard University, Washington, DC, USA)
Speech at “Nigeria at 49: The Way Forward” Conference of Change Nigeria Project (CNP)
On October 1, 2009, at
Carnegie Endowment for International Peace, Washington DC, USA
Abstract:
The paper outlines ongoing efforts to ensure that citizens of Nigeria resident abroad in all countries outside Nigeria are able to register, vote in their countries of residence in time for the 2011 elections AND have ALL votes cast both within and outside Nigeria count. Latest effort emanates from a successful lawsuit filed by 20 Nigeria Diasporans and concluded in Nigeria, leading to a pair of short bills submitted to the National Assembly in Nigeria, and currently being championed by NDERG (Nigeria Diaspora Electoral Reform Group).
Introduction
All protocols observed.
My sincere thanks to the organizers of this conference for giving me the belated opportunity to make a presentation at this conference on this 49th birthday of our long-suffering country Nigeria. They have taken good advantage of the fact that I live in the Washington Metropolitan area, and work within 10-15 minutes of this particular venue, so that I can move my schedule around to be here this morning. I will have to head back to class immediately afterwards and possibly return to join you before the end of the day; unfortunately, we are not on strike in my university.
The title of my talk is “Ensuring the Vote of Nigerians Resident Abroad in Elections in Nigeria – A Synopsis”, but I will be remiss if I even begin to give you the impression that ensuring Diaspora vote is what will change Nigeria. No – it is ensuring of TRUE FEDERAL DEMOCRACY that will change Nigeria.
By democracy here, I mean nothing simply more than “government of the people, for the people, and BY the people” – that is a government that is elected by the people and which works for the people. Without a government which, through free, fair, periodic and credible elections:
– Enables the election of promising legislators and executives countrywide;
– Enables the throwing-out of those already elected who prove to be worthless;
– Enables the retention of those already elected who have proved to be worthy;
what we have then is not democracy but civilian dictatorship, which so far has turned out to be an expensive and disastrous proposition in our country even when compared with military autocracy, and certainly when compared with countries such as Ghana with a similar colonial and post-colonial experience. What we have had in Nigeria over recent years have been a series of worsening elections at all levels of government attended first by physical violence and then confirmed by judicial violence.
Only when we have such freely, fairly and credibly elected officials, with votes cast and protected by citizens, can we have accountable governance. That is what makes ELECTORAL REFORM paramount in any Change Nigeria project.
Next comes the structure of governance. Only true federalism will augur well for the multi-national country that Nigeria is. That many ethnically-based nations were thrown together by the British into a geographical area that became formalized into a country called Nigeria is a fait accomplit. It is now the task of its citizens to make it work – either as one nation or as separate nations. The centripetal forces are nevertheless greater than the centrifugal forces. A structure that is not quite confederal, and certainly not unitary, would serve such a country well, one in which federating units are granted enough autonomy to develop along each of their chosen path, but in the presence of a well-defined and empowered center. The homogenizing distortion of too many years of military rule must be broken once and for all if Nigeria is to change.
Again, only credible and representative officials will fully recognize this and enable a Sovereign National Conference that will eventually give rise to a popular Constitution approved by the citizenry.
Once again, for that to happen, electoral reform is critical.
Minimum Electoral Reforms
The Uwais Committee has done a tremendous job of laying out the electoral reforms that will serve the nation well. I have waded through the document as made available electronically, but here I outline my own minimum set of electoral reforms, many of which align with the committees’ recommendations:
(1) A truly independent National Electoral Commission whose membership is not chosen by the President, and which is composed of selected members of political parties and of civil society, with a chairman that should be either a sitting judge (that immediately becomes retired as a judge) or an already retired judge. Consistent with this recommendation is a NEC that is under the Judiciary and not the Presidency.
(2) A NEC that is funded by first-charge budget from the Consolidated Funds.
(3) Staggered elections nationwide, so that all executive and legislative houses at the federal and state (and sometimes local) government levels are not having elections throughout the country at the same time. This requires different lengths of tenures of each of these elected entities, as well as shortened terms when at the commencement of the staggering process.
(4) Non-installation of elected persons until and unless election disputes are settled by courts. This requires setting a time limit for electoral cases to be settled. Consistent with this is the requirement that once a prima facie case is established of problem with an election or polling units, the only legal recourse should be the RECOUNT, and not judges adding and subtracting votes on the bench. Thus ballot boxes will be required – or no results for recount.
(5) Continuous voter registration being truly deployed, and voter registers being made available ELECTRONICALLY as a matter of fact to ALL political parties and being placed on the Internet AS required by the Electoral Act in a timely manner.
(6) Adoption of Modified Open Ballot System (MOBS), where lining up of all voters is ensured before commencement; actually voting is done secretly; and counting is done publicly and recorded by audio, video and by still pictures, with this documentation being part of the required record for authenticity.
(7) Electronic voting in only those centers where electric power is reliable, but backed up by a paper trail.
Finally, I add:
(8) Diaspora voting.
Why the Diaspora Must Vote
Let me therefore quickly turn to the main subject matter – the issue of Nigerians resident abroad voting. The key principle here is that the basic right to vote is not checked at the departure lounge when Nigerian citizens leave the shores of Nigeria, and that it is the responsibility of a responsible and responsive government to do all within its powers to allow such citizens to exercise as many of their rights as possible.
The argument has of course been that Nigerians resident abroad have always had the right to vote – all they have to do is come home to register when that time comes, and come home to vote when that time also comes. True, but the present effort is to ensure that Nigerians resident abroad can
(i) Register wherever they live abroad;
(ii) Vote wherever they live abroad.
(iii) Have those votes counted wherever they live abroad;
(iv) Have those votes COUNT in the elections in Nigeria.
Nigerians of course are not the only nationals in the world who are either agitating for such a right, or who have won such a right already. At least 115 countries have their citizens exercise external voting in one or more of presidential, legislative, sub-national or referendum elections either in person, by proxy, by post, by fax or by e-voting. Another 9 countries are planning for such external voting. 11 countries even have their Diaspora have representatives in the National parliament, with four of those (Angola, Cape Verde, Algeria and Mozambique) being in Africa. (The others are Colombia, Croatia, Ecuador, France, Italy, Panama and Portugal.)
So why not Nigeria? This has been a question asked by many Nigerians and organizations for several years now.
The Lawsuit
On May 25, 2007, some Nigerians living abroad led by Hon. Hakeem Bello, Professor Bolaji Aluko, Dr. Baba Adam, Mr Uzoma Onyemaechi, Prof. Isa Odidi and fifteen others (see attached plaintiffs’ list, Table 1, and a summary of events of the lawsuit Table 2) approached the Federal High court sitting in Abuja, in a class-action suit no: FHC/ABJ/CS/370/2007 wherein they sought the following reliefs:
- A declaration that the plaintiffs are entitled to participate in the government of Nigeria by voting for candidates of their choice pursuant to Article 13(1) of the African Charter on Human and People’s Rights (Ratification and Enforcement Act) (Cap 10) Laws of the Federation of Nigeria, 1990.
- A declaration that the plaintiffs are qualified for registration as voters by virtue of Section 13(1)(c) of the Electoral Act 2006 and Sections 77(2), 117(2), 132(5) and 178(5) of the Constitution of the Federal Republic of Nigeria, 1999.
- An order directing the defendants to set up registration centers and polling stations of the Federal Republic of Nigeria in all High Commissions And Embassies of the Federal Republic of Nigeria.
The plaintiffs’ counsel, Mr Femi Falana submitted that by the combined effect of the Article 13 of the African Charter on Human and People’s Rights, Section 77 of the Nigerian Constitution 1999 and Section 13 of the Electoral act 2006, Nigerians who are 18 years and above, living overseas are legally qualified to vote for candidates of their choice in any election conducted in Nigeria. Apart from the several local and foreign authorities cited by Mr Falana, he exhibited a list of member states of the United Nations including 15 African countries that have recognized external voting by their nationals.
In their vehement opposition to the suit, the Attorney-General and Independent National Electoral Commission (INEC) through their counsels, Messrs Nelson Anih and Chris Erhabor, submitted that the Nigerian Embassies and High Commissions cannot be used for voting as they do not form part of the constituencies under which elections could be held in Nigeria. They further contended that they have not prevented Nigerians living abroad from traveling home to participate in the electoral process.
In his considered judgment, delivered on 18th December 2008, Justice Adamu Bello held that since Nigerians living abroad have convinced the court that they are entitled to vote and be voted for, it is the constitutional responsibility of INEC to put in place the “relevant machinery to assist the plaintiffs to vote from abroad.”
While agreeing with INEC that there is no provision for external voting in the law, the Judge stated that “the time is ripe for Nigeria to give its citizens living abroad the opportunity to register and vote from abroad in any election in Nigeria without having to travel for that purpose.” Consequently, the Court directed INEC to “approach the National Assembly by sponsoring a bill for the sake of Nigerians in Diaspora and in doing so, it can borrow a leaf from the countries that have already adopted the external voting.”
In his reaction to the judgment, Mr Femi Falana commended Justice Bello for his incisive and progressive decision which has challenged the Nigerian government to join the comity of democratic nations by recognizing the rights and privileges of our citizens abroad to participate in the government of their country.
A Bill is Drafted
Following the court ruling, the plaintiffs constituted the core of a US-registered association – Nigeria Diaspora Electoral Reform Group (NDERG) – formed not only first to press the case for Voting Rights for Nigerians resident abroad, but also to ensure that we contribute positively to the ongoing electoral reform in the country. Deploying the best brains and legal advice available both in Nigeria and in the Diaspora, and after considerable public consultation with many individuals, the result was two versions of a Draft Bill (see attached draft bills, two versions) recently forwarded to various members of the national Assembly and the Presidency.
In order to ensure that this bill be passed in time for the 2011 elections, we adopted a multi-prong pragmatic approach:
(i) We ensured that it was as short and brief as possible, leaving the arcane rule-making to INEC;
(ii) Furthermore, we restricted elections to Presidential and Gubernatorial elections for now, to enable kinks to be worked out, even though we are not averse to Diaspora participation in legislative and other sub-national elections at a much later date.
(iii) We have left the issue of representation of the Diaspora in the National Assembly to a time in the future.
(iv) Our emphasis is on Electoral Law amendment, rather than Constitutional Review, even though we are not averse to the latter if that will remove any ambiguities.
We hope and trust that this short but important Bill will pass in the earliest possible time, either as a stand-alone chapter inserted into an amended Electoral Law 2006 (Version 1 of the draft), or as a complete stand-alone bill by itself (Version 2 of the draft), or where found necessary, as an amendment to the Constitution.
In this regard, we will be working primarily with INEC to spearhead the timely submission of the Bill. Furthermore, to fast-track its passage, the cooperation and goodwill of the House Committee on Electoral Matters (chaired by Hon. Musa Sarkin-Adar), on Foreign Affairs (chaired by Hon. Usman Bature; on Diaspora Affairs (chaired by Hon. Abike Kafayat Dabiri-Erewa) and on Constitutional Review chaired by Hon. Bayero Usman Nafada; the Senate Committee on INEC (chaired by Senator Isiaka Adetunji Adeleke) and Foreign Affairs (chaired by Senator Jubril Aminu) are to be relied upon. The special interest and support of Senate President David Mark, Speaker Dimeji Bankole, Deputy Senate President Ike Ekwerenmadu and Senator Annie Okonkwo already expressed are also appreciated.
In this arduous task, we ask for the support of this congregation.
Conclusion
We have outlined above a synopsis of NDERG’s effort to ensure that Diaspora Nigerians can externally register and vote in the 2011 elections. A draft bill has been presented to some members of the National Assembly in Nigeria, but we await further action from them.
I thank you for listening.
BIBLIOGRAPHY
Press Release on Draft Bill Submission
Diaspora Voting Draft Bill Version 1 – Nigerian Foreign Resident Participation [Section for insertion Option]
Diaspora Voting Draft Bill Version 2 – Nigerian Foreign Resident Participation [Chapter Option]
http://www.nderg.org/documents/Nigerian_Foreign_Resident_Participation_[Chapter_Option]_Version_2.pdf
The Certified True Copy of the Court Ruling
http://www.nderg.org/documents/CTC_Diaspora_Vote_Judgment_December_2008.doc
The Diaspora Voting Class Action Petition Originating Documents
http://www.nderg.org/documents/voting_class_action_petition_originating_documents.pdf
____________________________________________________________________________________________________________
Table 1: Nigeria Diaspora Voting Class Action Suit – Plaintiffs’ List
| S/N | Name of Plaintiff | City of Residence | State & Country of Residence | State of Origin in Nigeria |
| 1 | Hon. Akeem Bello | Chapel Hill | NC, USA | Ogun |
| 2 | Prof. Bolaji Aluko | Burtonsville | MD, USA | Ekiti |
| 3 | Dr. Baba M. Adam | Prescott | AZ, USA | Borno |
| 4 | Mr. Uzoma Onyemaechi | Taylor | MI, USA | Imo |
| 5 | Prof. Isa Odidi | Toronto | Canada | Kano |
| 6 | Dr. Emmanuel Dada | Princeton | NJ, USA | Ekiti |
| 7 | Mr. Segun Ajibulu | Raleigh | NC, USA | Ekiti |
| 8 | Mr. Surajudeen Seriki | Houston | TX, USA | Ogun |
| 9 | Ms. Zainabu N. Sheni | Silver Spring | MD, USA | Plateau |
| 10 | Prof. Adeoye Akinsanya | Austell | GA, USA | Ogun |
| 11 | Mr. Uzoma C. Obi | York | PA, USA | Imo |
| 12 | Oloye Lekan Awojoodu | Burtonsville | MD, USA | Osun |
| 13 | Prince Stephen T. Malu | Gainesville | FL, USA | Benue |
| 14 | Mr. Victor O.A. Adewusi | East Providence | RI, USA | Ekiti |
| 15 | Mr. Kolawole E. Silva-Ope | Dallas | TX, USA | Lagos |
| 16 | Mr. Alex Ike Okeke | Baltimore | MD, USA | Anambra |
| 17 | Sir Tony Nammor | Bladensburg | MD, USA | Delta |
| 18 | Dr. Yemi Oke | Toronto | Canada | Ogun |
| 19 | Mr. Ochi C. Ogbuaku II | Ajman | United Arab Emirates (UAE) | Abia |
| 20 | Dr. (Mrs.) Oluremi Ajibewa | Gravesend | Kent, UK | Ondo |
For more information, please see http://www.nderg.organd/or contact
Ms. Thelma Horton (NDERG Executive Director); Thelmaho…@yahoo.com
TABLE 2: Diaspora External Voting Class-Action Law Suit and Its Judgment – A Summary
| ITEM | COMMENT | |
| A | The Class-Action Law Suit | |
| 1 | Suit No. FHC/ABJ/CS/370/2007 | |
| 2 | In the Federal High Court of Nigeria, Abuja Judicial Division | |
| 3 | Originating Summons filed May 25, 2007 | |
| 4 | Judgment Delivered by Justice Adamu Bello on 18th December, 2008 | |
| B | The Plaintiffs | |
| 1 | 20 Deponents: Hakeem Bello, Uzoma Onyemaechi, Biodun Dada, Segun Ajibulu, Surajudeen Seriki, Baba Adam, Zainabu Sheni, Mobolaji Aluko, Adeoye Akinsanya, Uzoma Obi, Oloye Awojoodu, Stepehn Malu, Victor Adewusi, Kolawole Silva-Ope, Alex Okeke, Tony Nammor, Yemi Oke, Isa Odidi, Ochi Ogbuaku and Oluremi Ajibewa | From thirteen states in Nigeria, and resident in four countries around the world |
| 2 | Counsel – Mr. Femi Falana, assisted by Mr . Sola Egbeyinka | |
| C | The Defendants | |
| 1 | Independent National Electoral Commission (INEC) of Nigeria | |
| 2 | Attorney-General of the Federation of Nigeria | |
| D | Plaintiffs’ Issues before the Federal High Court in Abuja | |
| 1 | Whether the Plaintiffs are not entitled to be registered for the purpose of voting for their representatives in the Government of Nigeria | Granted |
| 2 | Whether the Defendants are not obliged to make provisions to enable the Plaintiffs to register and vote in the Embassies of the Federal Republic of Nigeria in the various countries where they are | Not Granted |
| E | Reliefs Sought by Plaintiffs | |
| 1 | A Declaration that the Plaintiffs are entitled to participate in the Government of Nigeria by voting for candidates of their choices pursuant to Article 13(1) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement Act) (Cap 10) Laws of the Federation of Nigeria, 1990 | Granted |
| 2 | A Declaration that the Plaintiffs are qualified for registration as voters by virtue of section 1(1) (c) of the Electoral Act 2006 and sections 77(2), 117(2), 132(5) and 178(5) of the Constitution of the Federal Republic of Nigeria, 1999 | Granted |
| 3 | An order directing the Defendants to set up registration centers and polling stations in the Federal Republic of Nigeria in all the High Commissions and Embassies of the Federal Republic of Nigeria | Not Granted |
| F | Key Statements by the Judge (taken from Certified True Copy) | |
| 1 | “So the question raised by the Plaintiffs regarding Issue number 1 as contained in the Originating Summons, whether as citizens, the Plaintiffs are entitled to participate in the government of Nigeria, becomes a rhetorical one whose answer is known in view of the combined effect of the sections of the Constitution and the African Charter aforementioned, which is that the Plaintiffs as citizens of Nigeria are entitled to participate in the government of Nigeria and to vote and be voted for in any elective office in Nigeria. I have no difficulty in resolving issue Number 1 in favor of the Plaintiffs” | |
| 2 | “All the relevant provisions of the Constitution and the Electoral Act talk about the right of the citizens of Nigeria to be registered as voters in Nigeria at the various designated registration centers scattered throughout Nigeria. There are no express provisions in the Constitution or the Electoral Act for Nigerians living abroad, like the Plaintiffs in this case, to register and vote from abroad as their counterparts in the various countries referred to by the Plaintiffs in 2ndreply to the 1st Defendants counter-affidavit as well as in exhibit “A” attached to the said reply to the 1st Defendant’s counter affidavit. In other words, the right of Nigerian citizens to register and vote or be voted for at any election in Nigeria are only exercisable within the Territorial boundaries of the Nigerian state. In this connection, I am in total agreement with the stand point of the Defendants that for the 1st Defendant i.e Independent National Electoral Commission (INEC) to open registration centers abroad for Nigerians living there to register and vote, at any election in Nigeria, from abroad, it requires an enabling enactment from the National Assembly to that effect……As the law stands today, the Plaintiffs having fulfilled all the Constitutional provisions with regard to the eligibility to participate in any election in Nigeria will have to put up with the inconvenience of having to travel home in Nigeria to register as voters and to participate in the election like any other Nigerian citizen, until such a time when the National Assembly enacts a law that empowers INEC to register Nigerians living abroad like the Plaintiffs in this case, as voters so as to enable them vote from the respective countries in which they live.” | |
| 3 | “Let me hasten to add that I should not be understood to mean that it is not desirable for Nigeria to join other Nations that adopt the external voting. I believe strongly that the Plaintiffs have made a good case and the time is ripe for Nigeria to give its citizens living abroad the opportunity to register and vote abroad in any election in Nigeria without having to travel to Nigeria for that purpose. The Plaintiffs are not under any obligation to sponsor a Bill to the National Assembly to enact the enabling legislation to realize their goal, however the 1st Defendant can approach the National Assembly by sponsoring such a Bill for the sake of Nigerians in the Diaspora and in doing so, it can borrow a leaf from the countries that have already adopted external voting.” | |
| 4 | “In view of all the reasons adduced above and having come to the conclusion that there are no express provisions in the Constitution of the Federal Republic of Nigeria 1999 and under the Electoral Act of 2006 which provide for external voting for Nigerians living abroad, I resolve issue No. 2 in favour of the Defendants. Consequently, having resolved Issue No. 1 in favour of the Plaintiffs, I grant reliefs 1 and 2 subject to my earlier statement that the rights to participate in the Government of Nigeria and to register as voters is exerciseable within the Territorial boundaries of Nigeria. Having resolved the 2nd issue in favour of the Defendants, relief 3 can not be and is not granted.” | |
