Criticisms Trail IGP Abba’s “Go Home After Voting” Directive, Lawyer Says Directive Illegal, Unconstitutional

Posted by African Examiner Featured, Latest Headlines, Politics Saturday, March 21st, 2015

Ayo Balogun, Lagos – The directive of the Inspector General of Police, Suleimon Abba, that voters should return home after voting, in the coming polls has received more knocks from lawyers and the Nigerian Public.

Such instruction it was reasoned portrayed the Nigerian Police, as currently being set up as “an extension of the Presidency, lawfully mandated to accept directives of the President”.

In a response Saturday, by a Legal Practitioner, Sam Eleanya, it was clarified that a court of law was “ousted from inquiring into the nature of the directives”, yet, it was the only Police available for every Nigerian even during an election in which the President was interested both as a candidate and leader of a political party which has furnished candidates for every single electoral position on offer.

He indicated that It would be difficult to find any other conclusion that was legally and legitimately tenable, hence the Electoral Act in recognition of that, has devised a framework in which the Police has no more than a secondary role to play – and the people of Nigeria the most critical role to play at the “1st 3 initial stages of the process: accreditation, voting and announcement of the voting outcome at the polling units.”

Consequently, Mr. Eleanya, held “IGP Abba‟s directive to citizens to go home after casting their vote does not appear supportable under the Constitution or Electoral laws of Nigeria. Even more important is that it could result literally in creating a toll-gate manned by Police men who would have the exclusive and subjective role of determining who has voted or not voted at the elections – and thus who should banished from entering the polling unit or escorted out.”

The order, the Legal luminary stated did not appear to be one of the objectives of the Electoral Act as at today, citing various legal instruments, including: The 1999 Constitution; the Nigerian Electoral Act, 2010 (as amended); the Nigerian Police act; Judgments of the Courts of Nigeria and precedents associated with elections in Nigeria – which were consistent with the laws of Nigeria.

“His statement amounts to a wrongful assumption of powers based on a single-sentence found in the Nigerian Electoral Act, 2010. However, a proper appreciation of the role of the Police, Citizens, Election umpires, political parties, accredited observers and other stakeholders in Nigeria’s election can only be properly guided principally by Section 40 and 34 of the Constitution of Nigeria guarantee and protect the freedom of Nigerian citizens to assemble in dignity under the protection of the State – especially when carrying out the vital civic duty of voting in a general election to assert the clear provision of section 14 (2) (a)(b)(c) of the Constitution that “sovereignty belongs to the people of Nigeria” and that “the security and welfare of the people shall be the primary purpose of government.

“Thus, there is an implied and legal licence given to every Nigerian to be at their assigned places of election until polling closes and result is announced by the designated authority. A holistic reading of the Electoral Act made pursuant to the Constitution leads inexorably to that construction.

“IGP Abba‟s reported statement negates the clear guarantees of the Constitution by trying to supplant his own subjective, low and uncomplimentary view of Nigerians assembled in groups to that of the Constitution” Eleanya established .

The Lawyer noted that a review of the legal instruments relating to the matter showed that the IGP has no such powers, yet, had duty to protect Nigerians in groups or otherwise – especially on election day to meaningfully perform a key civic duty.

Referring to claims by the IGP that waiting after waiting voting would amount to taking “laws into their hands”, the response argued that there was no law, known to the Nigerian legal complex that criminalized waiting behind after casting vote, at the polling center subject to the reasonable provisions of the Nigerian Electoral Act, 2010. It added that in past where such was practised, there was very little to suggest that it prejudiced law and order around election venues.

On IGP Abba and The Electoral Act, the Lawyer established that section129 (1) (i) of the Electoral Act provided that – “No person shall on the date on which an election was held do any of the following acts or things in a polling unit or within a distance of 300 metres of a polling unit:… loiter without lawful excuse after voting or after being refused to vote” quoting that section 129 (1) (i) was a tiny part of a very voluminous legislation which provides details on so many key aspects of the general election days designed under it.

“Even if by some tenuous interpretation, a voter could automatically be deemed a loiterer the moment he casts his vote and exit the polling booth, still, Section 129 (1) (i) did not outlaw the idea of loitering around the polling center: it only frowns at loitering devoid of „lawful excuse‟. In other words, IGP Abba would have to point at a law in Nigeria which makes unlawful the innocuous act of Nigerians waiting around peacefully to observe the counting of their votes and the announcement of the final outcomes for the polling units as stipulated under the Electoral Act.

“Instructively, the Electoral Act provides its list of what would not qualify as lawful excuse –and staying behind to observe counting of the ballot cast and announcement of the result is not one of them.

“The Electoral Act took steps to ensure that the meaning of „Polling Unit‟ is not left ambiguous for anybody to leverage and harass Nigerians on Election Day. According to section 156 of the Electoral Act, “‟Polling unit‟ means the place, enclosure, booth, shade or house at which voting takes place under this Act”. In other words, the whole perimeters of a primary school in which a polling unit is located is distinguishable from the area known legally as a polling unit.

“There is also a statutorily stated reason for the legal definition, designation and protection of the vicinities – 300meters radius – of the „polling unit‟ during the voting stage…” the response emphasized.

The reason Eleanya opened up was to uphold the obligation placed on every person at the polling unit to maintain and aid in maintaining the secrecy of the actual voting by every individual voter without interference or undue influence, adding that section 52 (4) states: “All ballots at an election under this Act at any polling station shall be deposited in the ballot box in the open view of the public.”

The Lawyer’s reaction also expressed reservation against usurping of the powers of the presiding officer of each polling unit by the Police, noting beyond civil exchanges, such right did not exist.

With respect to whether Police were permitted to identify, engage or relate with voters so as to determine whether they had cast or not cast their votes? The Lawyer countered, citing Section 125 (3) and (4) of the Electoral, while noting that it would not be far-fetched to say that section 125 (3) and 131 (1) were designed to prevent the mischief which a compromised police and other security agents/impostors may work – especially in the light of the EkitiGate allegations.

Also, he declared that it was not reasonable “construction” to place on the electoral act that it accommodates the exclusion of voters/citizens from the election venue before the votes are collated in their polling units, using Section 27(a) and Section 63 which he said covered announcement of results, and did not in any way suggest that it was to be an exercise to be conducted before party agents, observers, police and INEC officials – to the exclusion of voters/citizens.

Similarly, Eleanya rejected and pointed out that it was not reasonable to trust the Nigerian police to act as impartial trustees of the people’s constitutional right to meaningfully participate in the political succession of their nation which affects the national sovereignty inhering in the citizens as well as their personal/corporate security and welfare.

On The Police Act, the Lawyer held that the general duties of the police included prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they were directly charged.