Electoral Act Amendment: Bill seeks prisoners right to vote in Nigeria’s elections

A bill submitted to the National Assembly is seeking the amendment of provisions of the Electoral Act, 2022, to give inmates in Nigerian prisons the right to vote in elections in the country.

The proposed legislation, a copy of which was obtained by DAILY POST, is titled ‘Bill for An Act to amend the Electoral Act to provide for the right to vote of persons detained or incarcerated in custodial institutions and other places of detention; and related matters’.

Also known as ‘Electoral (Custodial Inmates) Bill, 2024′, the bill is sponsored by a not-for-profit organization, the Carmelite Prisoners Interest Organization, CAPIO, and drafted by the Association of Legislative Drafting and Advocacy Practitioners, ALDRAP, led by Dr Tonye Clinton Jaja.

To give voting rights to inmates of Nigerian prisons, the bill proposed amendments to relevant provisions of the current Electoral Act, 2022, particularly sections 9, 12, 13, 40 and 152.

Specifically, the bill suggested that Section 40 of the Electoral Act, 2022, should be amended by inserting after the existing subsection (2) thereof a new subsection (3) as follows:

“(3) The Commission (INEC) shall establish polling units in or proximate to a Custodial Centre and detention facility in consultation with the head of such institution or facility.”

The bill equally seeks to establish voters’ registration centres at prisons across the country.

This would be actualized by amending Section 9 of the Electoral Act, 2022, by inserting a new subsection (8), which reads:

“(8) The Commission shall designate registration centres in or proximate to Custodial Centres and detention facilities in consultation with the head of such institution or facility.”

Also, the proposed bill seeks to provide inmates, who were registered in a different area before their incarceration, with the right to transfer their polling units to the location of the prison in which they are held.

This is to be done by amending Section 13 of the Electoral Act by “deleting the existing subsection (1) and substituting therefore a new subsection as follows:

“(1) A person who before the election is resident in a constituency other than the one in which he or she was registered, including a person who is by reason of being in a detention facility or Custodial Centre resident in that constituency, may apply to the Resident Electoral Commissioner of the State where he or she is currently resident for his or her name to be entered on the Transferred Voters List for the constituency.”

Stating the need for the proposed amendment, the sponsors, Carmelite Prisoners Interest Organization, CAPIO, noted that the right to participate in the government of one’s country should not be denied to any eligible voter – whether free or in detention.

“These rights are enshrined in global, regional and national legal framework and instruments. Globally, the Universal Declaration of Human Rights provides that everyone has the right to take part in the government of his or her country either directly or through chosen representatives.

“In the same vein, the International Covenant on Civil and Political Rights highlights the right to vote without discrimination,” the group said.

CAPIO added that at the African regional level, Article 13 of the African Charter on Human and People’s Rights guarantees the right to participate freely in government, either directly or through elected representatives.

Similarly, the African Charter on Democracy, Elections and Governance emphasizes the right of citizens to participate in the electoral process freely and fairly, while the Nigerian 1999 Constitution, as amended, also guarantees the right of citizens to vote in elections in the country.

The sponsor observed that even as various sections of the Constitution outline the rights and qualifications of citizens to participate in the electoral process, “neither the Constitution nor any other legislations prevent any Nigerian of 18 years and above from participating in elections in Nigeria”.

However, the sponsor expressed concern that, despite the Constitution guaranteeing their voting rights, inmates in Nigerian prisons have continued to be denied the opportunity to participate in the country’s electoral process.

“It is against the backdrop of addressing this right violation and disfranchisement of inmates in Nigeria, and promoting the observance of the right of inmates to vote in Nigeria, that this proposal becomes imperative,” it said.

Prisoners in Nigeria have right to vote in elections – 2014 court ruling

Before now, there have been efforts towards facilitating the observance of the right of prisoners to vote during general elections in Nigeria.

These moves followed a 2014 court ruling to the effect that inmates in custodial centres in Nigeria have the right to vote during general elections in the country.

In December 2014, a Federal High Court sitting in Benin, Edo State, held that prisoners in Nigerian prisons have the right to vote in all elections conducted in the country.

Justice Mohammed Lima made the ruling in a suit by Victor Emenuwe, Onome Inaye, Kabiru Abu, Osagie Iyekepolor, Modugu Odion (for and on behalf of inmates of Nigeria Prisons), against the Independent National Electoral Commission, INEC, and the Controller-General of Nigeria Prisons Service.

The court ordered INEC and the Nigeria Prisons Service to ensure that the prisoners were not disenfranchised.

Among other issues they listed for determination, the prisoners had, in the suit, asked the court to determine “whether, having regards to the provisions of Section 25 of the 1999 Constitution, as amended in 2011, and Section 12 (1) of the Electoral Act 2010, the plaintiffs are not entitled to be registered as voters by INEC”.

In his judgment, Justice Lima, said: “Act by INEC to deny inmates the right to vote is unconstitutional, illegal, irregular, unlawful, null and void and of no effect whatsoever. The defendants (INEC and Nigeria Prison Service) do not have the constitutional right to deny the claimants their voting rights.”

“Being an inmate is not an offence that impedes their registration and voting right under Section 24 of the Electoral Act; and the exclusion of inmates in elections conducted in Nigeria is illegal and ultra vires,” the judge added.

However, despite the landmark court ruling, inmates in Nigerian prisons are yet to be granted voting rights.

The sponsor of the bill noted that the proposed legislation was in line with the 2014 Edo High Court ruling on voting rights for prison inmates.

“The judgement agrees with the Constitution of Nigeria, which does not specifically prohibit convicts in custodial centres in Nigeria from voting. Besides convicts, there are also awaiting trial persons that are held in these custodial centres across Nigeria. There is also no legal or constitutional provision against the participation of these persons from voting during elections in Nigeria,” CAPIO noted.

Also, concerned with the non-participation of incarcerated persons in voting during general elections, the Nigerian Senate, at its plenary on 8th March 2022, passed a resolution calling on INEC to allow duly registered and eligible inmates in custodial centres to vote during all general elections in Nigeria.

The Senate also urged INEC to collaborate with the Nigerian Correctional Service, NCoS – the new name of the Nigeria Prisons Service – to locate voting centres in custodial centres across the country to be used for voting by inmates during general elections.

INEC had not complied with the March 2022 Senate resolution.

Insisting on voting rights for prisoners, CAPIO added: “It is important to reiterate that inmates in Nigeria have a right to vote in Nigeria’s general elections.

“This right has been entrenched by the judgments of courts of competent jurisdiction in Nigeria, namely the Federal High Court, Benin, and the Court of Appeal, Benin Division.”

The organization stressed that the ongoing amendment of the Electoral Act, 2022, presents a golden opportunity for the National Assembly to address the violation of the voting right of citizens who, on account of circumstances, are incarcerated in custodial centres in the country.

CAPIO further observed that it was worth noting that over 80 per cent of Nigerian prison inmates are awaiting trial and, therefore, are presumed innocent by the law.

“The inclusion of inmates’ voting in the reform of the Electoral Act, 2022, has become very significant as it will address the disfranchisement and violation of the right of inmates in Nigeria to participate in the country’s electoral process,” it further stated.

The bill, if passed into law, would capture inmates’ voting rights in the ongoing amendment of the Electoral Act, 2022, set out the schedules and modalities for the conduct of voters’ registration for eligible inmates in the custodial centres, set out modalities for the conduct of elections in custodial centres across Nigeria and make provisions for the funding of the conduct of elections in the custodial centres.