Violation of Vote Secrecy in the 2023 General Elections; Can They be Prosecuted?



By: Mbang Confidence, Esq.


Vote secrecy is the brain child of the ballot system which Nigeria adopted, and this system has enjoyed global patronage in countries operating constitutional democracy. The fulcrum of this system is to ensure that votes cast by voters are highly confidential and reserved except for some purpose authorised by law. For purposes of appreciation, it is proposed to replicate section 122 of the Electoral Act, 2022

Section 122 states thus :(1) Every person in attendance at a polling unit including every officer charged with the conduct of an election and his or her assistants and every polling agent and candidate in attendance at a polling station or at the collation centre, as the case may be, shall maintain and aid in maintaining the secrecy of the voting.

(2) No person in attendance at a polling booth under this section shall, except for some purpose authorised by law, communicate to any person information as to the name or number on the register of any voter who has or has not voted at the place of voting.

(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

(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.

(4) Any person acting contrary to the provisions of this section commits an offence and is liable on conviction to a maximum fine of N100,000 or imprisonment for a term of three months or both.

The above provision and the rationale for the law is not far fetched, it is to assure the independence of votes, prevent vote buying, prevent undue influence (which might be clouded with religious, regional and Political sentiments), amongst others.

Yesterday, in the course of the General Elections, regrettably and pitiably, some top politicians violated the law by displaying their votes to the public, some of the votes were even invalid due to high level of ignorance. Amongst them was the Uno Numero, the number one (1) citizen of the country, President Muhammadu Buhari, who is supposed to be as independent as possible, irrespective of the fact that he is the leader of the ruling All Progressive Congress (APC).

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In reaction, some senior lawyers made their views public on punch newspaper publication, of the 26/02/2023, at page 5. While Chief Akintola SAN, and Tayo SAN, are of the view that the display of vote by the President was not wrong and could not affect the elections, Babatunde F. SAN and Prof. Mike Ozekhome SAN, firmly condemned the act of Mr President, calling it a violation of the Constitution, and gross influence on the populace. The learned icons stated hat the President ought to be prosecuted but not for the immunity he enjoys under section 308 of the Constitution, 1999(as amended). However, the President can be investigated and prosecuted after he vacates office on the 29/05/2023. See the cases of GLOBAL EXCELLENCE COMMUNICATIONS LTD & ORS v. DUKE(2007) LPELR-1323(SC) and FAWEHINMI v. I.G.P & ORS(2002) LPELR-1258(SC).

For purposes of appreciation, it pertinent to consider some comparative views vis-a-vis the sacrosanctity of secrecy of ballots since the Nigerian Courts are yet to make a decision on the subject matter. We shall consider two (2) decisions from the Courts of Kansas and Ontario.

In Sawyer v. Chapman (No. 59556.), Dec. 5, 1986, the issue before the Court was whether the Kansas Mail Ballot Election Act authorising the use of mail ballots in certain specified elections violated the section Article 4(1) of the Kansas Constitution which mandates secret ballot?. After arguments where canvassed by the counsel to the appellants and appellees, the Court cited the case of Peterson v. City of San Diego, 34 Cal. 3d 225, and held that the mail ballots voting was not inconsistent with the Constitution, that the legislature weighed the added potential for fruad and loss of secrecy under mail ballots elections against the compelling state interest in in creased participation in the election process and concluded the rusk worth taking. It should be noted this Mail ballot voting, enabled a canvasser to look at the signature on the envelope and then compare it with the marked ballot upon it’s removal from the envelope. Nothing prevents a volunteer canvasser who is tabulating elections votes from seeing how a voter’s ballot is marked.

However, in Wentworth’s case (Sealey v. Smith) (1905) 36 SCR 497, the Supreme Court of Ontario, noted that the  Election Acts call for absolute secrecy of the ballot, which should be held in view in construing their provisions.

According to the Chief Justice, “This is a plain case, as I view it, and, notwithstanding the able argument at bar by appellant’s counsel, I unhesitatingly think that his appeal must be dismissed. His contentions are, virtually, that the statute does not mean what it says. When it decrees in so many words that all the ballots upon which there is any writing or marks by which the voter could be identified must be rejected it does not say, as the appellant would contend, that the deputy returning officer is authorized to count a ballot so marked simply because it is himself who has marked it. The principle of the Act, it must be conceded, requires absolute secrecy of the ballot for the protection of the voter; and that, in the public interest, as well against the deputy returning officer as against every one else.

It must be because, as a general rule, all ballots marked by a deputy returning officer are not to be counted, that it was enacted by the amendment of 1886 (as declaratory law 49 Vict. ch. 4, sec. 8) that, by exception, those the marking whereof by himself is specially provided for by the Act have to be counted.”

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Therefore, it submitted that secrecy of vote is sacrosanct, the display of vote by the President may go a long way to prove a point negative to our Constitutionally guaranteed franchise, as the President may not want his party to fall short of victory after such a public display in the name of party loyalty and zero betrayal. However, since the wordings and spirits of the Electoral Act does not makes same to effect the elections generally, it is proposed that other politicians are not immune and  should be prosecuted as fast as possible, but would the law enforcement agencies avert their minds to this, considering that almost all the violators are of the ruling party?, What do you think?.

Thanks for going through this post; Violation of Vote Secrecy in the 2023 General Elections

Violation of Vote Secrecy in the 2023 General Elections

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