By Olumide Babalola
In February 2025, the Speaker of the House of Representatives sponsored a bill titled the “Bill for an Act to Amend the Electoral Act 2022 to Make It Mandatory for All Nigerians of Majority Age to Vote in All National and State Elections and for Related Matters.” The bill proposes imposing a maximum of six months imprisonment or a fine of no more than N100,000 for Nigerians of voting age who fail to vote during elections. While the bill aims to address voter apathy and enhance electoral participation, it raises significant concerns regarding its potential infringement on citizens’ fundamental rights—specifically the right to privacy under Section 37 of the 1999 Constitution of Nigeria.
Constitutional privacy and voting
Section 37 of the Nigerian Constitution guarantees the privacy of citizens and provides a safeguard against arbitrary intrusions into personal choices and activities. The provision states: “The privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is hereby guaranteed and protected.” This provision has been interpreted to mean that individuals have the right to make personal decisions in private, free from public interference. It encompasses not only decisions about one’s personal and family life but extends to decisions about political participation, such as whether to vote or whom to vote for during elections. The right to vote is undoubtedly a fundamental democratic right, but voting itself is not mandatory under Nigerian law. Currently, while every Nigerian citizen of voting age has the right to vote, there is no compelling legal obligation to do so. Voting, therefore, remains a choice — one that is meant to be freely exercised, without coercion or compulsion.
Caselaw on decision to vote and choice of candidate
In 2014, the Court of Appeal in the landmark case of Nwali v. Ebonyi State Independent Electoral Commission (EBSIEC) & Ors (2014) LPELR-23682(CA) provided a robust interpretation of the right to privacy in the context of voting. The court held that the phrase ‘privacy of citizens’ includes not just the choice of who to vote for, but also the decision to vote itself. The court emphasized that citizens are entitled to the privacy of their decision to vote or not to vote for any candidate of their choice. Hence, forcing someone to vote, or compelling them to publicly declare their choice, would infringe upon their privacy rights.
In this case, the appellant had challenged the public display of voting choices, arguing that such actions intruded upon his privacy. The court ruled in his favor, affirming that the compulsion to vote publicly or the intrusion into the privacy of one’s voting decision violates the fundamental right to privacy guaranteed under Section 37 of the Constitution. The court opined: “The privacy of his choice of that candidate and the privacy of his voting for that candidate constitute part of his ‘privacy’ as a citizen. The appellant was entitled to the privacy of his decision to vote for a particular candidate, his choice of that candidate and his casting his vote for that candidate. Therefore, requiring or compelling him to vote openly in the public watch and knowledge by queuing in front of the poster carrying the portrait of the candidate he has decided to vote for intrudes into, interferes with, and invades the privacy of his said decision, choice and voting, completely removing that privacy, therefore amounting to a clear violation of his fundamental right to the privacy of a citizen.”
Analysis of the Proposed Bill
The bill, which seeks to make voting mandatory for all Nigerians of voting age, is therefore directly at odds with ‘privacy of citizens’ as interpreted in the Nwali v. EBSIEC case. The bill proposes punitive measures—imprisonment or a fine—for citizens who fail to vote. While the objective of increasing voter turnout and participation in elections is commendable, compelling citizens to vote could be seen as an infringement on their personal autonomy and right to privacy. The decision to vote, and by extension the choice of candidate, forms an essential part of a citizen’s personal freedom and privacy. Compelling individuals to vote, particularly under the threat of imprisonment or financial penalty, undermines this right by forcing citizens to participate in an election against their will. As stated by the Court of Appeal, such a compulsion would effectively strip away the privacy of a citizen’s choice, forcing them into the public sphere and removing the privacy that ought to accompany their decision.
International Precedents and the Nigerian Context
While several countries, including Australia and Belgium, have implemented compulsory voting laws, it is crucial to note that these nations do not have the same constitutional framework on the right to privacy as Nigeria. In Australia, for instance, there is no constitutional right to privacy even though there exists ‘patch work’ legislation that references privacy e.g the Privacy Act of 1988. Furthermore, in these jurisdictions, the right to vote is not as strongly protected under constitutional privacy provisions as it is in Nigeria. Therefore, applying such models to Nigeria without proper constitutional alignment could lead to legal conflicts. The Nigerian Constitution expressly guarantees a right to privacy, which the proposed bill may unduly infringe upon. Moreover, Nigerian courts have upheld privacy of citizens’ in the context of voting as seen in Nwali v. EBSIEC. The case serves as a reminder that the Constitution protects not only individuals’ rights to make choices about their lives but also extends this protection to the realm of political participation, including the decision not to vote.
Conclusion
While the proposed bill may be driven by noble intentions to encourage greater voter participation, it risks undermining the fundamental rights of Nigerian citizens as guaranteed by section 37 of the 1999 Constitution. Mandatory voting, under threat of punishment, infringes upon the privacy of citizens, as it compels them to exercise a right that is meant to be voluntary. The right to vote, like any other fundamental right, should remain a personal choice and not be subject to coercion or penalty. As such, any attempt to make voting mandatory would likely face significant legal challenges, especially in light of the Court of Appeal’s ruling in Nwali v. EBSIEC. The challenge remains for lawmakers to balance the need for enhanced electoral participation with the constitutional protections afforded to citizens’ privacy.