This article seeks to dispel the wrong notion that only persons that are 18 years and above are legally qualified to vote in elections in Nigeria. This notion that persons younger than 18 years of age are not qualified, and thus cannot vote in Nigeria, has been so rampant that persons who are under 18 years are now seen to have been forbidden to vote in elections in Nigeria. This is not what our Constitution said.
A critical look at the relevant laws shows that it is lawful for underage children to cast votes in elections in Nigeria. The Constitution of the Federal Republic of Nigeria actually permits underage children to vote in elections in Nigeria. This shall be elucidated infra shortly.
The status of the provisions of the Electoral Act No 6 of 2010, shall first be explained so as to point out the legal shortfall of the provisions of that law as regards underage voters. This Act, at its section 12, states:
" 12.-( I) A person shall be qualified to be registered as a voter if such a person-
( a) is a citizen of Nigeria;
(b) has attained the age of 18 years ....... "
A brief look at this provision will be construed as restricting voting rights to Nigerian citizens that are of the age of 18 years and above. However, this is not true. The provisions of the Electoral Act must be placed side by side with the provisions of the Constitution of the Federal Republic of Nigeria as amended. Where the provisions of the Electoral Act conflicts with the provisions of the Constitution, the provisions of the Electoral Act becomes void to the extent of the inconsistencies.
The capacity of the National Assembly to make laws on electoral processes and the scope of such laws when made are captured in the Item F of the Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria. It provides as follows:
" F - Independent National Electoral Commission:
14 (1) The Independent National Electoral Commission shall comprise the following members .......
(15) The Commission shall have power to:
(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;
(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;
(c) monitor the organisation and operation of the political parties, including their finances;
(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;
(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;
(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the Oath of Office prescribed by law;
(h) delegate any of its powers to any Resident Electoral Commissioner; and
(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly".
The relevant provision here, as regards qualification of persons to vote, is contained in 15(e) thus:
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution.
Persons qualified to vote, as used in 15(e) did not state what qualifies those persons to vote. This means that quailification to vote was not defined by the Constitution. The Constitution did not also delegate the power to prescribe qualification to vote in elections, to the National Assembly as it did of other delegated functions in 15(b) and (i) respectively of Item F of Part 1 of the Third Schedule, or to the Independent National Electoral Commission. Those that are entitled to vote are prescribed by the Constitution. However, those that are qualified to vote were left out entirely from the Constitution. It must be noted and stated here that entitlement to be registered is not the same thing as qualification to be registered. Entitlement to be registered simply means that nobody or authority can disentitle the citizens by any contrived conditions. Qualification to be registered is a way lower the bar; it includes those entitled to be registered and others that are not entitled, albeit qualified.
Curiously enough, qualification to vote is not an Item in the Exclusive or Concurrent Legislative Lists of the Constitution of the Federal Republic of Nigeria as amended. The import of these findings is that the Electoral Act 2010 lacked the capacity to prescribe the age of qualification to vote, a personal right of a Nigerian citizen, as provided at its section 12 (1)(b).
Therefore, section 12(1)(b) of the Electoral Act 2010 is ultra vires and inconsistent with section 40 and 45 of the Constitution of the Federal Republic of Nigeria as amended, which did not restrict exercise of these fundamental rights to age, and thus null and void.
The voyage of discovery as to what the Constitution says about the entitling age of voting in Nigeria can be praddled in the direction of section 77 of the Constitution of the Federal Republic of Nigeria. It states:
"77 (2) Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house, shall be entitled to be registered as a voter for that election".
This provision made it an entitlement of every citizen of Nigeria up to 18 years to be registered to vote in elections. These citizens include the blind, the lunatic and the bankrupt. Once a citizen is 18 years, they are ENTITLED to be registered to vote in elections, without any further conditions. This means that those citizens that are below 18 years are not entitled to be registered unconditionally. That they are not entitled to be registered to vote unconditionally does not mean that they are disqualified from registration. It only means that they can still be qualified to be registered to vote if they met some unspecified conditions. The import is that underage persons are not qualified to vote as of right.
This brings us to why 18 years. 18 years is a rebuttable age of maturity, appreciation and understanding of events and circumstances to be able to make informed choices. This presumption is littered in our laws. Those that are 18 years are presumed majority and thus are entitled to vote in elections in Nigeria. Those below 18 years are not therefore entitled to be registered to vote until they show cause. Gillick Competency testing by the registration officers could essentially avail this category of voters.
It is obvious from the foregoing that there is no place in the Constitution of the Federal Republic of Nigeria where those below 18 years are disqualified or forbidden to be registered to vote in elections in Nigeria. There is also no place in the Constitution of the Federal Republic of Nigeria where the power to prescribe qualifying age for voting is delegated to any persons or authorities, other than the prescribed age of entitlement to be registered to vote in elections in Nigeria. The prescription of qualifying age is neither delegated to the National Assembly nor to the Independent National Electoral Commission, by the Constitution of the Federal Republic of Nigeria as amended. It is also crystalline clear that the power to prescribe qualifying age for voting is not in the Exclusive or Concurrent Legislative Lists of the Constitution of the Federal Republic of Nigeria.
Therefore, who is now qualified to be registered to vote in Nigeria with regard to age limitations.
The answer to this query can be found in sections 40 and 45 of the Constitution of the Federal Republic of Nigeria as amended.
Section 40 of the Constitution states:
Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.
Section 45(1) of the Constitution states:
Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons".
Voting right is a personal right. It is also an offshoot of the right to associate freely or form political parties and unions for the protection of public and personal interests, rather than an incidental power of the National Assembly in enacting an Electoral Act.
The fundamental right to assemble freely and associate with other persons and belong to political parties or associations for the protection of personal interests, as provided in section 40 of the Constitution of the Federal Republic of Nigeria, is superior to other like provisions of the Constitution, and far much superior to whatever is provided in the Electoral Act, which is an Act of the National Assembly. Section 40 of the Constitution did not prescribe age limit for belonging to a political party or any association; rather, that right is open to EVERY PERSON in Nigeria.
The Constitutional protection afforded to everybody in Nigeria irrespective of age, cannot be derogated by an Act of the National Assembly, like the Electoral Act, which cannot be said to have fulfilled the requirements of section 45(1)(a) of the Constitution of the Federal Republic of Nigeria above.
The prescription of age limit for voting as contained in section 12(b) of the Electoral Act cannot be said to be in the interest of defence, public safety, public order, public morality or public health.
However,while it may be offensive to section 45(1)(a) for a newborn baby to be allowed to vote in elections, the same cannot be said to be true for underage children that pass the Gillick Competency Test, given that the Constitution of the Federal Republic of Nigeria as amended did not bar underage persons from voting in elections in Nigeria.
Item E (Electoral Laws) of the Part II: Concurrent Legislative List of the Second Schedule of the Constitution of the Federal Republic of Nigeria as amended provides:
11. The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.
The power of the National Assembly to make laws for the Federation with respect to the registration of voters above, does not include the prescription and stipulation of a mandatory and blanket age of 18 years for everybody. This will amount to the National Assembly removing from persons below 18 years with one hand ,what the Constitution has endowed everybody without age limit in section 40 of the Constitution.
The purpose of forming political parties as protected by section 40 of the Constitution of the Federal Republic of Nigeria is to win an election. Elections are won by the greater numbers. If section 40 of the Constitution has enjoined Nigerians to form political parties and associations for the protection of their personal interests, then, the use of underage voters who are Gillick competent, and who have not been barred by the self same Constitution in any way whatsoever, to win elections, is a valid and constitutional way to go.
©Awkadigwe Fredrick Ikenna 2018 (MBBS, LLB, MWACS, DSC)
awkadigweikenna@yahoo.com
This article can be read and shared purely for enlightenment and education of the people of Nigeria. The reader can also freely comment and argue with the thoughts of this author using chrome or web browser preferably, as opera mini does not readily open the comments area.
© Copyright 2017 Ikenna Fredrick Awkadigwe. All rights reserved. No part of this publication is permitted to be used in any way, copied, photocopied printed, reproduced, transferred, adapted, argued in any fora, used in Court or recreated in any form or resemblance whatsoever, without the written approval and license of the author, Ikenna Fredrick Awkadigwe.
Kilk, sir, below will help you to understand the difference between entitled to vote and qualified/eligible to vote:
ReplyDeleteDistinction between eligibility to vote and entitlement to vote explained: Alexander v Burne [2015] NSWCA 377
The Supreme Court of New South Wales has overturned a decision at first instance to find that in the context of a particular unitholder deed, a special majority decision that required approval of two-thirds of “persons eligible to vote” meant two-thirds of all unitholders, not just those present at the meeting and entitled to vote. This case is a reminder of the care that should be taken when drafting voting provisions in unitholder and shareholder agreements to ensure that the expressed wording reflects the intention.
Under the BDO Unitholders’ Deed ( Deed), approval of the merger of BDO and Grant Thornton required a ‘special majority’, being a vote of two-thirds of “persons eligible to vote in respect of a resolution ”. In addition, a quorum for a meeting required 75% of unitholders to be “present in person or by representative”.
Of the 69 unitholders, 59 were present at the meeting to pass the resolution approving the merger and so a quorum was declared. Voting on the resolution comprised 44 votes in favour, 3 votes not in favour and 12 abstentions.
The issue for determination was whether a “special majority” required:
two-thirds of unitholders present at the meeting and entitled to vote; or
At trial, Young AJA rejected the argument that the reference to “persons eligible” meant that what was required was a majority of all unitholders (and not just those at the meeting) because all unitholders were eligible to vote. Rather, Young AJA found that eligibility to vote must be determined in accordance with the Deed and a unitholder who declines to attend the meeting (voluntarily or involuntarily) has submitted to the parts of the Deed which require a quorum and entitle a majority of those who are present and voting to make the decision (see our summary of the decision at first instance in the G+T May 2015 Corporate Advisory Update).
In allowing the appeal, Tobias AJA (with Ward JA and Gleeson JA agreeing) in the New South Wales Supreme Court – Court of Appeal disagreed with Young AJA and found that a ‘special majority’ required two-thirds of all unitholders. In so finding, the Court agreed with the appellants that:
the words “persons eligible to vote” did not evince an intention that the persons eligible to vote were only the persons entitled to vote by reason of their being in attendance at the meeting;
in its context, the expression “eligible to vote” directed attention to persons who had the legal right or were qualified to vote at a meeting, regardless of whether they actually exercised that right by attending the meeting or giving a proxy.
The Court also found that:
if a “special majority” required two-thirds of persons present and entitled to vote and a quorum required only 52 unitholders (being 75% of all unitholders), this would mean that a “special majority” required only 35 votes (or 49.5% of all unitholders), and it could not have been intended for such important decisions to be determined by a vote of only 50% or less;
it was significant that a quorum required 75% of unitholders present in person or by representative (which the parties agreed meant 75% of all unitholders) because the effect was that there would always be more unitholders present at a meeting than is required to pass a special majority vote; and
there was a deliberate distinction between the special majority requirement of two-thirds of persons eligible to vote and the separate provision that each unitholder will be entitled to cast one vote at a unitholder meeting, with eligibility directed to legal right or capacity to vote if a unitholder attends a meeting (in person or by proxy) and entitlement to cast a vote requires a unitholder to be present at the meeting.
Sir, may I State that I disagree with your submission. I will furnish my reasons later. Thanks
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ReplyDeleteThank you for the write-up. The argument in your above write-up has not shown a strong to prove that the constitution supports underage voting in my view. First you acknowledged the lower age limit for the issuance of voter’s card to be 18 yrs. You equally claimed that below 18 yrs one has to show cause why he/she should be issued with a voter's card. Gillick competency Test was equally advocated as a way to circumvent this.
I know that Gillick test is primarily for consent of minors to medical treatment and is restricted to a few countries. Nigeria is not one of them. I equally know that many countries of the world has their lower age limit as 18 yrs, Britain our former colonial masters applies this till date. No country is below 16.
Now the question are
1 what informed 18 years to be minimum voting age?
2 does any law in Nigeria authorize anybody to register Under 18yrs for the purpose of voting in any election?
3 What is Gillick competence test and who are entitled to administer the test?
Answers to the above may give us an insight as why the constitution did not allow and also did not envisage under 18 to vote. It should be noted that 95% or more of the population aged 18 and above can be said to be rational in reasoning as to choice of their leaders. Same cannot be said of the population below 18 years.
Legally speaking Nigeria has a minor and adult age cut-off to be 18
ReplyDeleteKlik, Gillick test is not primarily for consent of minors to medical treatment as you have known. It is a test of maturity and understanding of a minor. Its scope is not limited to treatment of a minor only. It can be applied to a variety of circumstances where the competency, maturity and understanding by a minor is in question It is also not restricted to a few countries as you have known. Different countries have applied similar tests in different legal framework.
Section 209 of the Evidence Act, which is the Nigerian version of Gillick test, states:
(1) In any proceeding in which a child who has not attained the age of l4 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than oath or affirmation, if in the opinion or the court, he is possessed of sufficient intelligence and understands the duty of speaking the truth.
(2) A child who has attained the age of 14 years shall, subject to sections 175 and 208 of this Act, give sworn evidence in all cases.
From the foregoing, the age of a minor's presumed capacity to possess sufficient understanding has been pegged at 14 years in Nigerian Evidence Act. Yet, those that are below 14 years are also recognized to be capable of sufficient intelligence and understanding in certain cases, by the same Evidence Act of Nigeria.
Voting in elections in Nigeria is all about giving consent to be governed. This consent has to be informed consent by a person capable of giving same. It is obvious that those above and below 14 years can have that capacity, and not just those that are 18 years and above.
The Nigerian Constitution never stated that those below 18 years cannot vote. No. It stated that those that have attained 18 years are those that are entitled to register and vote. These includes sick people, aged with Alzheimer's disease, morribond patients and even those in coma. If these people are permitted to register and vote, is it a Gillick competent minor that is excluded! That is not the spirit of the Constitution.
Those below 18 are not entitled. Yet they are qualified to vote if competent.
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DeleteDalu for the reply. I would like you to kindly throw more light into the following
Delete1 kindly butress other instances that Gillick competence test were applied beyond medical law for the consent of minor to a treatment https://en.m.wikipedia.org/wiki/Gillick_competence
2 kindly tell us anyother country that allowed minors below the national age benchmark for voter registration to vote during national election
3 kindly educate me were Nigeria laws allowed anyother assessment of a minor which could lead to voter registration.
I ask for education on the above bearing in mind that evidence act provides for minors to give evidence of what they know in a case. This was provided for in evidence act.
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