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.
The INEC chairman and the Chief Justice of the Federation (CJN)
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 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 age of 18 years. 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.
INEC chairman and vice president Yemi Osibanjo
The capacity of the National Assembly to make laws on electoral processes and the scope of such laws when made are captured at 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.
The symbol of the legal practice
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.
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 against age, and thus null and void.
The voyage of discovery as to what the Constitution says about the qualifying 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 vote in elections. These citizens include the blind, the lunatic and the bankrupt. Once a citizen is 18 years, they are ENTITLED to vote in elections, without any further conditions. This means that those citizens that are below 18 years are not entitled to vote. That they are not entitled to vote does not mean that they are disqualified from voting. It only means that they can still be qualified to vote if they met some 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. Those that are 18 years are presumed majority and thus are entitled to vote in elections in Nigeria. Those below 18 years are not entitled 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 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. 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 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: 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): 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. 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, to win elections, is a valid and constitutional way to go.
©Awkadigwe Fredrick Ikenna 2018 (MBBS, LLB, MWACS, DSC)