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By Aloy Ejimakor
In the past few days, Nigerians have witnessed what a noted pundit called ‘acts of unprecedented show of independence by Jega’ as INEC Chair. Of particular note, and which Jega has sensationally played up, is his scotched-earth insistence that voters who have cast their votes (or been refused to vote) should be free to remain on the premises of the polling unit, contrary to the publicly stated position of his colleague in government – the Inspector General of Police. Jega implies that his stance is necessary for the physical protection of the votes.
At first impression, it may appear to some folks that Jega is just going about his job with the independence accorded to INEC under the Constitution. He also appears emboldened by the APC, which has also publicly suborned voters to ignore the IGP. Given that the IGP, Jega (and APC) asserted that their contrary positions are grounded in the law, let us then, in the following paragraphs, put the black letter law into purview and see what it actually says.
First, Section 129 (1) (i) of the Electoral Act states that “No person shall on the date on which an election is 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“.
Now, I don’t know why Jega and the motley crew of INEC lawyers totally missed or misinterpreted this very clear Section of an Electoral Act under which they operate. It’s clear enough; and the mischief the Section is directed at are also clear enough, and they are: reduction of the high likelihood of violence that potentially arises from a mob of voters with competing partisan interests; mob interference with accredited officials engaged in electoral functions; and general maintenance of public order and safety in the immediate periphery of the polling units.
Further, Jega and APC misinterpreted the phrase ‘lawful purpose’ to only mean the literal and direct opposite of ‘unlawful purpose’. As a matter of contextual interpretations, what it actually means are these: One – there is no more reasonable purpose or residual reason for a voter to ‘loiter’ within 300 meter periphery of the polling unit after he has voted or been refused to vote. Two – those possessed of lawful purpose or residual reason are the disparate officials and others duly accredited to still be there, such as INEC officials, security agents, monitors, observers, party agents, and voters who are yet to vote.
To be sure, only these people are there lawfully because they still have unexpired purposes to be there. Conversely, if you have voted or was refused, your still loitering there is no longer lawful because it is without any further or remaining purpose; except of course, you are designing the next purpose, which is, as per Jega and APC, to employ the means of physical assault to ‘protect the vote’. That’s tantamount to taking the law into your hands, and it’s unlawful. For clarity, the idea of ‘voter loitering’ as a means of protecting the vote is unknown to law, particularly the Electoral Act. Instead, the Act clearly stipulated those who exclusively and legally possess the power to protect the vote.
Second, the Constitution, in giving the President police powers, states at Section 215(3) that “The President may give to the Inspector-General of Police such lawful directions with respect to the maintenance and securing of public safety and public order as he may consider necessary, and the Inspector-General of Police shall comply with those direction or cause them to be compiled with”. The President appears to have given such directions, and the IGP has indicated he will comply. So, Jega and APC cannot determine this matter because, under the black letter law, they have no such powers.
And there’s more: Even the judiciary, despite its superior powers as compared to Jega and APC, does not possess the authority to circumscribe the authority of the President on his police powers under the foregoing Section 215(3). This is enacted at Section 215(5) of the Constitution, which states that “The question whether any, and if so what, directions have been given under this section shall not be inquired into in any court”.
Third, Jega and APC appear to be relying partly on Section 52(4) of the Electoral Act, which states that “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.” Now, the legislative history of this Section shows that it is meant to codify the ‘open/secret ballot’ system, of which the plain intention is to compel voters to deposit their secretly thumb-printed ballots in the open view of the public. It repealed the ‘secret/secret’ ballot system of the old by which the ballot box is hidden away from public view, leaving only the individual voter (and his many devices) to do as he wished with the ballot box.
Thus the ‘public’ referred to here must not include the segment of the public specifically excluded under Section 129 of the Electoral Act, and that is: those who voted or were refused to vote. Jega and APC might have confused the word ‘public’ to mean the same thing as a ‘mob’, and therefore stretched it to the extreme limits that ‘public’ must comprise of everybody, including ‘loiterers’. It’s enough ‘public’ if it comprised of only those that possess the lawful purpose to still be there.
Fourth, and more importantly, Jega and APC have cited to Section 40 of the Constitution, which states that “Every person shall be entitled to assemble freely ..”. The best way to see whether this Section applies is to quote from the same Constitution, which then states at Section 45 that ‘Nothing in Section 40 of this Constitition shall invalidate any law that is reasonably justifiable in a democratic society in the interest of public safety and public order’. One such law is the already stated Section 129 of the Electoral Act; so even though somewhat restrictive of Section 40 of the Constitution, it remains a permissible legislation, enforceable by the IGP, upon the directions of the President. As of now, and until another President emerges from May 29, it’s not Jega or the APC that possesses the coercive police powers of the state; it’s the IGP, acting under the lawful directions of President.
Finally, and most importantly, it’s unlawful for Jega and APC to suborn the public to disobey an IGP, who is acting under color of law. Under the Constitution, the Electoral Act and the subsidiary legislations, it’s not the lawful business of voters to protect the votes. It is, instead, the business of others – particularly the officials, as already mentioned above. And in the event that those officials all together failed to protect the vote, the judiciary will step in, through due process, to ensure that the votes are protected and the popular will of Nigerians ultimately respected.
Aloy Ejimakor, a lawyer wrote from:
08032651660 (texts only).