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Lawyers battle Buhari, Malami, others over disclosure of voted candidate at polling booth
2023 Election

Lawyers battle Buhari, Malami, others over disclosure of voted candidate at polling booth

A prominent lawyer, Adeyinka Olumide-Fusika SAN, has upbraided the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN for public display of his ballot papers indicating the party

  • PublishedFebruary 27, 2023

A prominent lawyer, Adeyinka Olumide-Fusika SAN, has upbraided the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN for public display of his ballot papers indicating the party he voted for in last Saturday’s election.

Malami found company in President Muhammadu Buhari who was the first to openly display his ballot papers indicating the candidates he voted for at his polling unit in his Daura, Katsina State hometown.

Senator Orji Uzor Kali, and Benue State governor, Samuel Ortom also engaged in similar display.

The action had drawn flak from lawyers who argued that such display amounted to a violation of the 2022 Electoral Act.

They opined that such display was enough to void their votes.

Olumide-Fusika on the Morning Show on Arise Television said the president may have his reason for the display, it does not remove the fact that it was wrong as it was supposed to be a secret ballot.

But Malami insisted that he complied with all extant laws and did not act in contravention of any provision(s) of the law in respect of the 2023 poll.

Earlier, INEC’s National Commissioner in charge of Voter Education and Publicity, Festus Okoye, cautioned that, “No one will be allowed to take his or her phone to the voting cubicle” and that the law prohibits display of ballots by voters, adding that, “officials of the ICPC, EFCC and security agencies will be on hand to monitor and ensure that the law in that respect is not violated.”

But Messrs Buhari and Malami were seen displaying their ballot papers after casting their votes for the APC to show who they voted for.

The Attorney General of the Federation, Malami, however, in a statement issued by Dr. Umar Jibrilu Gwandu, Special Assistant on Media and Public Relations said that he was not in breach of any law.

He argued that it is important to educate the general public that the section of the Electoral Law being referred to talks about individuals attempting  to “obtain in a polling unit, information as to the candidate for whom a voter in that place is about to vote for or has voted”.

Section 122(3a)and (3b) provides: (3) No person shall— (a)interfere with a voter casting his or her vote, or by any other means obtain or attempt to obtain in a polling unit, information as to the candidate for whom a voter in that place is about to vote for or has voted for; or

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(b) communicate at any time to any other person, information obtained in a polling unit as to the candidate to whom a voter is about to vote or has voted for”

It is clear that the laws was referring to a third party individual seeking information about another voter’s choice and disclosing to others the obtained information of a third party choice.

”Section 122(3)(b) prohibits third party individual to “communicate at any time to any other person “information obtained” in a polling unit as to the candidate to whom a voter (someone else) is about to vote or has voted for”

‘The law does not contemplate putting restrictions on  individuals revealing by themselves and out of their own volition, of candidate(s) they voted for.

“Moreover, the freedom of expression and right to belong to lawful associations are  constitutionally guaranteed rights as contained in Sections 39, 40 and 42.

In his reaction to the development, one of the lawyers, Mr Babatunde Fashanu, SAN, said that the President’s act was wrong because the exercise was secret balloting.

Fashanu said, “It’s a secret balloting, you are supposed to go there, do your voting in secret and drop the paper and nobody is supposed to see who you voted for.’’

He added that as the President, it was not right for Buhari to show the ballot paper to show his candidate.

He stated, “It was wrong of the President to do that, but whatever is the reason why he did that, it is not a justification for him to show whom he voted for. It is not done, I am clear on that; it’s wrong. It’s illegal. What he did is uncalled for.”

“Talking about the governors, if it’s true that some of them were with their phones, definitely that’s against the INEC regulations. When we are talking of voting, everybody is equal.

“But even if that is done, you are not supposed to breach the rule that says don’t take phones there. You are not supposed to do it because when it comes to voting, the governors, president and everybody are equal in that area.

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“My view on it is that if it happened, it’s a bad example and it’s illegal. But then, I don’t think anybody will go to the tribunal and say that because the governor was there with a phone, they should nullify the election of that polling unit.

“If you try that, the tribunal will tell you that it is substantial compliance that the law cares about. Even though it might have happened, it doesn’t mean that it will affect the elections in that unit. That is my view on it but it is wrong.’’

However, another Senior Advocate, Chief Niyi Akintola shared a dissenting opinion.

According to him, the display of the ballot paper would not affect the elections, adding that the INEC’s regulations and rules were quoted but not substantial compliance.

He said:  “What do the photographs taken by anybody have to do with the elections?

“Everybody is entitled to vote. I cannot compël you and you cannot compel me to vote for anybody.  Though the act is not in accordance with the rule, how has that affected the election? The rules and electoral act talks of substantial compliance, it has not affected anybody.

“The display by any governor if he voted for any presidential candidate will not affect any voter, I will vote my conscience and that applies to every other person too. This is a president that was being blackmailed every now and then, so he decided to show everybody.’’

Another senior lawyer, Mr Paul Ananaba, noted that he had only heard of the President’s act but had yet to confirm it.

He said:   “I just heard of it but the President’s media men had yet to confirm it. You know, the next you may hear them is a clone video. I will need confirmation on it.

“But if indeed it was what the President and some governors did, you know that they have immunity. But beyond that, is it a contravention of the rules and regulations of INEC as you stated that it can lead to cancellation of the polling unit, I don’t think so.

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“But it is a contravention of the regulation. I hope that it will not happen again, I hope that the INEC will take precautions and that every Nigerian including the President will respect the regulations of the elections.

Also speaking, Tayo Oyetibo, SAN, said that there was nothing wrong with the act if the purpose was not for vote buying.

Oyetibo stated that the reason why the INEC made the rule that people should not use their phones at the polling booths was for the purpose of vote buying.

He said, “They want to stop people from taking photographs of their ballots and that is why the rule was made.’’

For Mike Ozekhome, SAN, the President and Benue State Governor, Samuel Ortom’s acts were illegal, noting that according to the Electoral Act, a section of the electoral act states that a voter cannot display the person he or she voted for.

He stated, “What Buhari and Ortom have done is wrong and illegal under the Electoral Act, a section states that you cannot display the person you voted for.

“There is a saying that the left hand must not allow the right hand to know what it is doing. What they have done is illegal; in any event, ordinarily they should be prosecuted because it is an electoral crime which is subject to imprisonment.

“But because they are President and governor respectively, covered by section 308 of the 1999 constitution, they cannot be prosecuted now but they can be prosecuted after May 29 when they leave office.

“So what the President and the governor did is uncalled for and it is leading by bad example. They don’t have to be overzealous to show who they are voting for by displaying their cards because that also amounts to campaigning for their candidates.

“Campaigns stop 48 hours to election day, so for you to be displaying your voter card or who you are voting for, especially for the President of a whole country, it is a crime.”

He also added that the acts could suggest that they were trying to influence voters to tell them the persons they voted for and it could influence their decision too.

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