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Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
i
Law,
Democracy
and Electoral
Process
53rd NALT Conference
Edited by
Aminu Kabir
Usman Muhammad Shu’aib
Abubakar Isa Umar
Nuhu Musa Idris
ii
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ISBN: 978-978-792-499-0
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Osun State University, Ifetedo
The Necessity of Diaspora Voting in the Electoral Process of Nigeria:
Issues and Challenges
ABSTRACT
The issue of diaspora voting has been brought to the front burner of national discourse since the
Nigerian Diaspora Voting Council (UK), working in conjunction with the Nigerian Diaspora
Commission (NIDCOM), submitted proposal for change in the country’s electoral laws to
accommodate participation of Nigerians living outside the country in the selection of their
leaders. The logic is that with the sizeable proportion of Nigerians living abroad, who are
making significant contributions to national development through all spheres of human
development, their rights should be protected in a similar manner as those at home, in line with
the Nigerian Constitution, laws and international legal instruments to which Nigerian has
subscribed based on global best practices. Yet, notwithstanding the size and economic power of
Nigerians in the diaspora more than 15 years of advocacy around the diaspora vote have yet to
bear fruits.The attempts have met with several challenges, legal and otherwise, that have made
the road to diaspora voting in Nigeria not only thorny but arduously long. In this paper, we
examine the issues surrounding the necessity for diaspora voting in Nigeria. We interrogate
several issues including whether the right to participate in the electoral process is a citizens’
rights that can be protected by law under the Nigerian democratic space, particularly for citizens
living outside the shores. Noting that several African and other countries have widened the
democratic space to accommodate participation by citizens living abroad, we ask why similar
efforts in Nigeria is yet to materialise, interrogating the legal and constitutional obstacles that
have constituted challenges to the realisation of the objectives. Drawing lessons from
experiences of other countries in time and space, the paper appraises the necessity or otherwise
of diaspora voting in the electoral processes of Nigeria. We also examine the issues surrounding
the practical implementation of the law, including logistical, administrative, financial, if
eventually passed by the NASS and the State Houses of Assembly, and how they can be
surmounted, and the prospects of Nigerians in the diaspora participating in the series of elections
scheduled to take place during the 2022/2023 election year.
INTRODUCTION
he issue of diaspora voting has been
brought to the front burner of national
discourse since the Nigerian Diaspora Voting
Council (UK), working in conjunction with
the Nigerian Diaspora Commission
(NIDCOM), submitted proposal for change in
the country’s electoral laws to accommodate
participation of Nigerians living outside the
T
Conference Proceedings
53rd Nigerian Association of Law Teachers’
Annual Conference 2022
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
324
country in the selection of their leaders. The
logic is that with the sizeable proportion of
Nigerians living abroad, who are making
significant contributions to national
development through all spheres of human
development, their rights should be protected
in a similar manner as those at home, in line
with the Nigerian Constitution, laws and
international legal instruments to which
Nigerian has subscribed based on global best
practices. Yet, notwithstanding the size and
economic power of Nigerians in the diaspora
more than 15 years of advocacy around the
diaspora vote have yet to bear fruits.The
attempts have met with several challenges,
legal and otherwise, that have made the road
to diaspora voting in Nigeria not only thorny
but arduously long. In this paper, we examine
the issues surrounding the necessity for
diaspora voting in Nigeria. We interrogate
several issues including whether the right to
participate in the electoral process is a
citizens’ rights that can be protected by law
under the Nigerian democratic space,
particularly for citizens living outside the
shores. Noting that several African and other
countries have widened the democratic space
to accommodate participation by citizens
living abroad, we ask why similar efforts in
Nigeria is yet to materialise, interrogating the
legal and constitutional obstacles that have
constituted challenges to the realisation of the
objectives. Drawing lessons from experiences
of other countries in time and space, the paper
appraises the necessity or otherwise of
diaspora voting in the electoral processes of
Nigeria. We also examine the issues
surrounding the practical implementation of
the law, including logistical, administrative,
financial, if eventually passed by the NASS
and the State Houses of Assembly, and how
they can be surmounted, and the prospects of
Nigerians in the diaspora participating in the
series of elections scheduled to take place
during the 2022/2023 election year.
Background
The issue of diaspora voting has been a
matter of intense public debate in the last
couple of years. The wave of democracy
worldwide has brought the issue of voters’
rights to the front burner of national
discourses. The demand has extended to
protection of voting rights of all citizens,
including those who are temporarily or
permanently absent from their countries of
citizenship. While the constitution of many
countries guarantees the right to vote for all
citizens, there are often no clear-cut
provisions on the voting rights of citizens
who are outside their home country when
elections take place. In the circumstances,
millions of eligible voters are required to be
physically present to register and vote. The
financial and logistical implication of
physical presence could be huge for those
outsiders, and they become disenfranchised
because of lack of procedures enabling them
to exercise their voting rights. For the
democratic system, it means many eligible
voters are excluded from participation in their
homeland’s electoral process, thereby
distorting the patterns of voting with
consequential impact on the legitimacy of
elected institutions and sustenance of the
political system in general.
The incongruous situation of disenfranchising
millions of eligible voters who are making
significant contributions to the development
of their homeland have led many countries to
develop modalities for integrating the critical
segment of their citizenry living abroad into
the electoral process for productive national
development. The rationale for this appears to
be that since the diaspora population
contributes to their countries notwithstanding
living offshore, they ought not to be denied
such rights that are afforded their fellow
citizens at home. In essence, the arguments in
favour of external voting are related to the
democratic principle of universal suffrage.
The basic idea is that every citizen has the
right to participate in every direct election to
representative state organs because of the
formal constitutional guarantee of equality of
all citizens in line with the dictates of the rule
of law. For the advocates, political rights,
including the right to vote, are human rights
that require protection by the state organs.
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
325
Is Voting a Human Rights Issue?
The ongoing discourse on diaspora voting,
particularly in Nigeria, brings to fore the
question as to whether the right to vote could
generally be regarded as a human right issue.
More specifically, should the demands for the
extension of the right to vote to Nigerians in
diaspora be considered a fundamental human
right guaranteed under the Constitution?
Addressing this issue is critical as the very
nature of human rights standards imposes
obligations and duties upon governments to
undertake positive measures which would
ensure that human rights are respected,
implemented and enforced. Failure by the
government to meet these positive obligations
in any aspect would, thus, amount to a
violation of the rights of its citizenry.
At the international level, there is a well-
established view that the right of citizens to
vote is a fundamental human right.1This is
grounded in the various international and
regional human rights instruments. For
instance, Article 21 of the Universal
Declaration of Human Rights 1948recognises
the right of people to participate in the
government of their countries directly or
indirectly through their representatives,
including the people’s right to vote. Also,
Article 25 of the International Covenant on
Civil and Political Rights 1966 provides that
“every citizen shall have the right … to vote
and to be elected at genuine periodic
elections ….”. Diaspora voting right is,
perhaps, much more explicitly guaranteed by
the International Convention on the
1See, Office of the United Nations High
Commissioner for Human Rights (OHCHR), Human
Rights and Elections: A Handbook on International
Human Rights Standards on Elections (Professional
Training Series No. 2/Rev.1, New York and Geneva,
2021) 1; L Young, K Rudelius-Palmer, and I Dikkers
(eds), ‘Study Guide: The Right to Vote’. (University of
Minnesota Human Rights Center, 2003)
<http://hrlibrary.umn.edu/edumat/
studyguides/votingrights.html> accessed 02 October
2021; American Civil Liberties Union, ‘Voting Rights
are Human Rights’. <https://www.aclu.org/sites/
default/files/field_document/voting_rights_resource_w
ith_links.pdf> accessed 02 October 2021.
Protection of the Rights of All Migrant
Workers and Members of their Families
(ICMW), ratified to date by about 56
countries including Nigeria,2which gives
“migrant workers and members of their
families … the right to participate in public
affairs of their State of origin and to vote and
to be elected at elections of that State, in
accordance with its legislation”.3The African
Charter on Human and Peoples Rights
(ACHPR) also emphasises the right of every
citizen “to participate freely in the
government of his country either directly or
through freely chosen representatives in
accordance with the provisions of the law”.4
In a similar vein, Article 4 of the African
Charter on Democracy, Elections and
Governance (ACDEG) 2007, provides that
universal suffrage is the inalienable right of
the people, with a further mandate in its
Article 17 that its implementation must
conform with the African Union’s
Declaration on the Principles Governing
Democratic Elections in Africa (PGDEA)
which precludes any form of discrimination It
is instructive to note that enjoyment of the
rights guaranteed under the Banjul Charter is
also “without distinction of any kind”5though
voting rights are subjected by Article 13(1) to
provisions of a national law. Other human
rights instruments and provisions supporting
the right to vote include Article 29 of the
Convention on the Rights of Persons with
Disabilities 2006, Article 7 of the Convention
on the Elimination of All Forms of
Discrimination against Women 1979, Article
23 of the American Convention on Human
Rights 1969, and Article 3 of Protocol No 1
to the European Convention on Human
Rights (ECHR)1950. These various
international and regional instruments enjoin
States Parties to take legislative,
2Nigeria ratified the treaty on 27 July 2009 with no
reservation
3Article 41(1)
4ACHPR, art 13(1)
5OAU/AU Declaration On The Principles Governing
Democratic Elections In Africa <http://archives.au.int/
handle/123456789/572> (accessed 23 November 2021),
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
326
administrative and other efforts to assure the
realisation of the rights so guaranteed.6
Although there is no general treaty obligation
that compels diaspora voting on members of
the Council of Europe, it appears that the
rights guaranteed by the European
Convention on Human Rights (ECHR) may
not be discriminated against upon on “any
ground”.7For the European Court of Human
Rights (ECtHR),8a case of alleged
discrimination may hold on account of
residence but “residency is not per se an
arbitrary or unreasonable restriction” but
rather based on reasonably justifiable
grounds.9One such justifiable basis as
decided by the court in Hilbe vLiechtenstein
10is concerning the ‘legitimate concern the
legislature may have to limit the influence of
citizens living abroad in elections on issues
which, while admittedly fundamental,
primarily affect persons living in the
country.’ However, in the case of Hirst v
United Kingdom,11 the European Court of
Human Rights (ECtHR) held that voting
rights are universal in nature and that the
prohibition of convicted prisoners from
exercising their right to vote in parliamentary
or local elections by section 3 of the United
Kingdom’s Representation of the People Act
1983 was a violation of the human rights
6See, eg, ICMW, Art 41(2)
7ECHR, Art 14.
8Carson and Others vUK App No 42184/05 (ECtHR,
16 March 2010) paras 70–71.
9Richard Lappin, ‘The Right to Vote for Non-Resident
Citizens in Europe’ (2016) 65 International and
Comparative Law Quarterly 859, 866.
10 Hilbe vLiechtenstein App No 31981/96 (ECtHR, 7
September 1999) 3–4.
11 (No 2) (2005) ECHR 681. It is worth stating that this
case has had a fair share in the controversies as to what
may be considered a justifiable limitation on the right
to vote. See A Zysset, ‘Freedom of Expression, the
Right to Vote, and Proportionality at the European
Court of Human Rights: An Internal Critique’. (2019)
17(1) International Journal of Constitutional Law, pp.
230-251. <https://doi.org/10.1093/icon/moz002>
accessed 02 October 2021; J Hodgson, and K Roach,
‘Disenfranchisement as Punishment: European Court
of Human Rights, UK and Canadian Responses to
Prisoner Voting’. (2017) 3 Public Law, 250-268.
<https://search.informit.org/doi/10.3316/agispt.201728
59> accessed 02 October 2021.
standards encapsulated in Article 3 of
Protocol No 1 to the European Convention on
Human Rights 1950.12
No unanimity of views on diaspora voting
exist on the African continent too. In the
Republic of South Africa, for instance, the
citizen’s right to vote is guaranteed under the
Bill of Rights in Chapter 2 of the country’s
Constitution.13 In fact, section 1 of the
Constitution of the Republic of South Africa
1996 (as amended), provides the Republic of
South Africa is founded on the values of
‘universal adult suffrage’ among others. On
the other hand, the Nigerian Constitution does
not expressly recognise the right to vote as
one of the fundamental human rights
notwithstanding the seemingly elaborate
provisions on the electoral process in the
country.14 While section 14(2)(c) of the 1999
Constitution specifies political participation
by the people as a fundamental objective of
the state and section 40 guarantees the right
of citizens to belong to any political party of
their choice,15 these appears to be mere
directory and not enforceable.16 Even then,
constitutional guarantee may not necessarily
translate to enforcement as ‘reasonably
justifiable’ grounds could always be found to
escape liability.17 While countries are ad idem
on restrictions based on age, there is no
consensus as to whether residence or
nationality should constitute a valid ground
upon which a person’s right to vote can be
restricted.18 The reasons for such restrictions
12 See also Matthews v. the United Kingdom [GC], no.
24833/94, ECHR 1999-I.
13 See the Constitution of the Republic of South Africa
1996 (as amended) s 19; See also August and Another
v Electoral Commission and Others (CCT8/99: 1999
(3) SA 1).
14 See for instance, Constitution of the Federal
Republic of Nigeria 1999 (as amended), Cap C23 LFN
2004, ss 7(4) and 71 – 79.
15 See also CFRN 1999, ss 7 and 77.
16 See M O A Alabi, ‘Fundamental Objectives and
Directive Principles under the Nigerian Constitutional
Law’ (2006) 11 The Jurist (University of Ilorin), 77-82
17 See for instance, CFRN 1999, s 45; Constitution of
the Republic of South Africa, 1996 (as amended) s 36.
18 See ‘Guide on Article 3 of Protocol No.1 to the
European Convention on Human Rights: Right to Free
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
327
have been variously articulated: The
assumption that a non-resident citizen is less
directly or continuously interested in his
country’s day-to-day problems and has less
knowledge of them, the impracticability of
candidates presenting the different electoral
issues to citizens abroad, and the believe that
non-resident citizens have no influence on the
selection of candidates or on the formulation
of their electoral programmes are some of the
frequently mentioned justification for
permitting the restrictions on diaspora
voting.19 Also, “the close connection between
the right to vote in parliamentary elections
and the fact of being directly affected by the
acts of political bodies so elected”20 and the
“link between taxation and representation”
has been considered “as a reasonable basis for
imposing residency limitations on the right to
vote”.21 In essence, the question of whether
diasporans can vote depends more on the law
and practice of a country rather than on
existing human rights standards and norms.
This position is even supported by European
Court of Human Rights in a line of cases that
validated residence as a criterion of exclusion
that is not incompatible with Article 3 of
Protocol No.1 to the European Convention on
Human Rights 1950.22 As it insisted in
Shindler v the United Kingdom, countries are
not under any obligation to enfranchise non-
residents, although the court notes that the
matter is one that needs to be kept under
review.23
Elections’ (Updated on 31 August 2021) (Prepared by
the Registry of European Court of Human Rights, 2021)
10 - 13, highlighting some of the cases under which the
European Court of Human Rights have had to address
issues on the voting rights of non-residents.
19 Hilbe vLiechtenstein App No 31981/96 (ECtHR, 7
September 1999) 3
20 Hilbe vLiechtenstein App No 31981/96 (ECtHR, 7
September 1999) 3.
21 X. v UK, Decision App No 7215/75 (ECtHR, 11
December 1976) 2.
22 Ibid.
23 (2013) ECHR, Application no. 19840/09
<http://hudoc.echr.coe.int/eng?i=001-119229>
accessed 02 November 2021.
Whichever way the issue is viewed, it is
important to stress that the right to vote can
only be meaningful in an environment where
human rights are generally respected,
including the right to fair hearing, right to
freedom from discrimination, right to
freedom of expression and the press and right
to peaceful assembly and association.24
Significance of Electoral Process for
Democratic Governance
Whether conceived as a human right or
otherwise, voting is a conditio sine qua non to
the democratic process.25 This is having
regard to the well-accepted position that
democratic governance is based on the will of
the people, at least in principle, and periodic
elections remain the primary means through
which the people are empowered to express
their will.26 And this is intrinsically linked
with the core values of democracy which
encompass participation and inclusion,
equality and non-discrimination and
accountability and rule of law.27 Thus, any
restriction of the rights must not be arbitrary
or unreasonable but to serve legitimate
aims.28
24 For discussions on the interdependence between
voting rights and human rights in general, see the
Office of the United Nations High Commissioner for
Human Rights (OHCHR), Human Rights and Elections:
A Handbook on International Human Rights Standards
on Elections pp.15-36
25 M O A Alabi, ‘Electoral Reforms and Democratic
Consolidation in Nigeria: The Electoral Act 2006’
(2006) 4(2) CEU Political Science Journal, 278-304
26 Office of the United Nations High Commissioner for
Human Rights (OHCHR), Human Rights and Elections:
A Handbook on International Human Rights Standards
on Elections, p.1.
27 United Nations Development Programme, Towards
Human Resilience: Sustaining MDG Progress in an
Age of Economic Uncertainty (UNDP, New York,
United States, 2011) 279 - 281 <http://www.undp.org/
sites/g/
files/zskgke326/files/publications/Towards_Sustaining
MDG_Web1005.pdf> accessed 02 October 2021.
These are also considered as human rights values.
28 U Dubagari, ‘The Rule of Law and Electoral Process
in Nigeria: A Critical Reflection’ (2017) 6(6) Global
journal of Interdisciplinary Social Sciences, 1-7.
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
328
The link between voting and democracy is
expressed in various international and
regional instruments. The ‘We the Peoples’
phraseology that opens the preamble to the
Universal Declaration of Human Rights 1948,
embodies democratic values; so are Articles 1
and 2 of the Convention on the Elimination of
All Forms of Discrimination against Women
1979, Articles 5 and 18 of the United Nations
Declaration on the Rights of Indigenous
Peoples 2007, and Article 29 of the
Convention on the Rights of Persons with
Disabilities 2006, which provide against all
forms of discrimination in relation to political
participation. This linkage is also established,
to a varied extent, in the constitutions and
electoral laws of countries. In the case of
Nigeria, the values are reflected in the
Preamble to the 1999 Constitution, which
opens with the words, ‘We the people’, and
other provisions of the Constitution including
its Chapters II and IV. Given that election or
the electoral process is at the core of
democracy, the question which must then be
addressed, with specific reference to Nigeria,
is whether the non-participation of the
Nigerians in the diaspora in elections does not
challenge the country’s democratic
credentials?
The Current Position of the Law
Talking about diaspora voting in Nigeria, the
key legal instruments are the Constitution of
the Federal Republic of Nigeria 1999 (as
amended), the Electoral Act 2010 (as
amended), and administrative regulations of
the from the Independent National Electoral
Commission (INEC). The Constitution opens
with a Preamble that suggestive of a country
where the will of the people rules supreme.
Other substantive provisions exist to buttress
this claim, including section 1(2) of the
Constitution of the Federal Republic of
Nigeria 1999 (as amended), only persons who
are democratically elected can govern
Nigeria.29 To this end, section 153(1)(f) of the
Constitution of the Federal Republic of
Nigeria 1999 (as amended), establishes the
29 See also CFRN 1999, s 7(4).
Independent National Electoral Commission
(INEC), with exclusive powers and functions
to organise, undertake and supervise
elections into key political offices such as the
Presidency and the National Assembly.
Importantly, INEC arranges and conducts the
registration of persons qualified to vote in
Nigeria.30
However, the constitutional provisions as to
who may qualify as a voter in Nigeria deprive
the Nigerian diaspora of their right to vote.
This is because, the Nigerian Constitution in
various sections, emphasised the use of place
of residence as one of the determining factors.
For instance, sections 77(2) and 117(2) of the
Constitution in dealing, respectively, with the
National Assembly and States Assemblies,
provide thus:
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. (Emphasis
supplied).31
This provision, Elgujja argues, “completely
disenfranchises Nigerians living in the
diaspora”,32 because without such physical
presence at any of the designated registration
or voting centres, they cannot be registered as
voters or be able to vote during elections. As
the grundnorm, this provision of the
Constitution represents a major impediment
to the grant of diaspora voting, which cannot
be cured by mere legislative enactment
without going through the rigorous and
stringent procedures for alteration under
section 9 of the Constitution. Thus, section
30 See also CFRN 1999, ss 78 and 118.
31 See also CFRN 1999, ss 132 (5) and 178 (5).
32 A A Elgujja, ‘Paving the Way for Entrenching the
Diaspora’s Voting Rights under the Nigerian Laws:
Legal Prospects, Challenges and Potential Solutions’
(2021) 1(2) Turkish Journal of Diaspora Studies 77, 86
<https://doi.org/10.52241/TJDS.2021.0025> accessed
02 October 2021.
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
329
12(1) of the Electoral Act 2010 (as amended)
merely gives effect to this constitutional
provision on registration of voters. It provides
that, person is qualified to be registered as a
voter if such a person inter alia, ‘is ordinarily
resident, works in, originates from’ any of the
Local Government/Area Council or Ward
covered by a registration centre and ‘presents
himself to the registration officers of the
Commission for registration as a voter’. Like
the constitutional provisions, the Electoral
Act 2010 (as amended), also emphasises on
the physical presence of the citizenry.
Diaspora Voting in Perspective
The term ‘diaspora’ refers to a community
formed because of the dispersion of a people
from their homeland. Such migrants might
have elected to do live abroad or be
constrained by circumstances to seek asylum
or other forms of migration. Unstable socio-
political environments and weak economies
as well as an increase in cooperation among
nations have contributed to the exponential
increase of the diaspora community. The
effects of globalisation also lead to millions
of people becoming citizens of more than one
country. Often, cross-border migrations have
not led to a disconnect between the migrants
and their countries of nativity, as they
continue to maintain deep interest in the
happenings in their native countries through
remittances, occasional and regular visits, and
desire to participate in socio-economic and
political activities back home. In Africa, the
heightened call by the diaspora community
for increased participation in the politics of
their native countries is a manifestation of
this desire.33
The first use of external voting appears to
have been put in place in the 15th Century by
the Roman Emperor Augustus, who is said to
have invented a new kind of suffrage under
which the members of the local Senate in 28
33 Shannon De Ryhove, https:// m.polity.org.za
/article/the-right-to-vote-where-do-citizens-in-the-
diaspora-stand---art-1-2013-04-05, accessed 20
september 2021
newly established colonies cast votes for
candidates for the city offices of Rome and
sent them under seal to Rome for the day of
the elections, an act which was undoubtedly
based on political rather than democratic
motives.34 Later, in 1862, Wisconsin became
the first of a number of US states to enact
provisions permitting absentee voting by
soldiers fighting in the Union army during the
Civil War.35 New Zealand and Australia also
introduced absentee voting for seafarers in
1890 and 1902 respectively. It wasn’t until
after WWII that voting by proxy was
introduced in Europe, first in France for
persons on government, military or
professional business service away from their
homes between 1946 and 1951.36 It has since
become a common practice across
democracies, including many countries on the
African continent. In Botswana, external
voting was introduced in 1997 as part of a
package of constitutional and electoral
reforms in 1997. Earlier in 1994,
Mozambique and South Africa had
introduced external voting as part of the
measures to extend democratic rights to wider
sections of the population.
Although extension of the rights to vote to
persons living abroad had originally been
hinged on the need to protect the rights of
citizens on military and diplomatic
assignment of the state, the justification for
diaspora voting in modern times has have a
wider justification. According to Andy
Sundberg, the rationale for introducing
external voting has differed in historical and
political contexts. While the initial efforts
towards this end in the US, UK, New Zealand,
Australia, among others were an
acknowledgement of the active participation
34 Andrew Elis, ‘The History and Politics of External
voting” in Voting from Abroad The International
IDEA Handbook, 2007, p 14
35 Andrew Elis, ‘The history and politics of external
voting” in Voting from Abroad, The International
IDEA Handbook,2007 p.41
36 Andrew Elis, ‘The History and Politics of External
voting” in Voting from Abroad The International
IDEA Handbook, 2007
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
330
of overseas citizens in external conflicts such
as the World Wars, 37 later developments in
time and space constrained the extension of
voting rights beyond the shores. In the UK,
while the political demand for a voice for
those fighting in World War I led to the
introduction of absentee voting for military
personnel in 1918, it was not until after the
WWII in 1945 that postal voting was
extended to merchant seamen and others
working overseas on matters of national
importance and universal suffrage for persons
living abroad did not become a reality until
the 1980s. In Canada, while postal voting for
military electors on active service was
permitted in the 1916 and 1917 elections,
proxy voting on behalf of prisoners of war by
their closest relatives was allowed in 1945
and to military families in 1955.38 France
introduced external voting in 1924 on a
limited scale but extended to all active
servicemen only after WWII, and by 1951,
postal votes and/or proxy votes were
available for voters in a range of specified
categories, including those on government or
military service or professional business away
from their home. However, the country
abolished postal voting in 1975 while a
number of conditions were attached to proxy
voting since 1982 to minimise fraud.39 While
the introduction of external voting in Spain
(1978) had a symbolic character insofar as its
inclusion in the democratic constitution
meant the ex post facto acknowledgement of
the republican emigration after the Civil War,
similar efforts in Argentina (1993) reflected
the government’s political/pragmatic
intention to maintain or strengthen the ties
between emigrants and the mother country.
While the decision in Austria (1990) followed
37 B. F. Ibrahim, I. Dele, H. Ukeaja, Diaspora Voting
In Nigeria’s Elections: An Analysis ofTthe Abike
Dabiri-Erewa Bill of 2012 and the effectiveness of its
Possible Inclusion into the 2019 General Elections.
International Journal of Arts Humanities and Social
Sciences Studies Volume 4 Issue 7. 2019.
38 A. Agborh, “Group Wants Voting Rights for
Nigerians in the Diaspora” Nigerian Tribune. 2011.
39 M. Keller, “Can Diaspora Vote Influence Latin
American Elections?” 2012. 2.
a resolution of the Constitutional Court, that
of the United States (1975) was in response to
the demands of citizens residing overseas,40
including military and non-military service
personnel.41 In other countries, absentee
voting was introduced for the purposes of
enhancing the political fortunes of the ruling
political parties and elite. The delay in taking
such a decision in Switzerland (until 1989)
was anchored on the argument that Swiss
sovereignty precluded foreigners from
voting.42
The extension of voting rights to non-resident
citizens followed similar patterns in other
parts of the world. In common with many
other aspects of electoral administrative
tradition, external voting provisions often
passed from the legislation of a colonial
power to the legislation of a newly
independent state. The existence and form of
external voting in Malaysia followed its use
in colonial Malaya, which had in turn derived
it in the 1950s from the British legislation
then in force. Postal votes were available for
overseas service personnel, for overseas
public servants and overseas students, and for
their spouses. However, not all British
colonies had introduced external voting
before independence, and indeed some of the
remaining British Overseas Territories and
former colonies still do not have it. India
enacted the core of its election legislation in
1950 and 1951, creating a model which was
widely studied in other countries gaining
independence. India at independence
specifically excluded proxy voting while
permitting postal voting for its service
personnel as early as 1950/51 although
participation has since widened. Indonesia’s
40 A. Sundber, ”The History and Politics of Diaspora
Voting in Home Country Elections,” paper prepared
based on information from Andrew Ellis and other
sources in, ―Voting from Abroad,‖ The International
IDEA Handbook, 2007.
41 M. Collyer and Z. Vathi, “Patterns of Extra-
territorial Voting Sussex: Centre on Migration,
Globalization and Poverty”. 2007 29 – 36.
42 Andrew Elis, ‘The History and Politics of External
voting” in Voting from Abroad The International
IDEA Handbook, 2007
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
331
permission of external voting in embassies
abroad could be dated as far back as 1953 and
the practice has persisted through the
elections of the years of authoritarianism and
remained in use in the democratic era.43
Several French colonies retained the French
proxy voting system at independence. France
introduced personal voting in embassies and
consulates in 1975 for presidential elections
and referendums—an executive
administrative initiative, because only one
version of the ballot paper is required—and a
few former French colonies, for example
Gabon and Guinea now have similar systems.
Before 1990, no Sub-Saharan African country
extended the right to vote to any of its
citizens living abroad. A 2006 study of
countries that allow their emigrants to vote
identified 21 countries in Africa, in
comparison to 13 in North and South
American, 15 in Asia, 6 in the Pacific, and 36
in Europe.44.Today, a full two-thirds of sub-
Saharan Africa’s 48 countries allow for some
form of external voting. Noticeably missing
from this list of countries is Africa’s largest
democracy, Nigeria, which, along with
Liberia, remains one of just two countries in
West Africa without any form of, or legal
allowance for, external voting.45 There other
countries, including Nigeria, that are yet to
embrace diaspora voting, notwithstanding
availability of constitutional/legal provisions
that could be exploited to back the practice.
The impediments have been attributed to lack
of political, legislative, financial or
administrative agreement required for it.
Countries that have opened the political
landscape for voting to their citizens living
abroad have adopted different options in aid
of external voting. IDEA identifies four main
43 A. Orabuchi, “Time to Reconsider Diaspora Voting
Right Bill”, Daily Sun, April 19, 2012.
44https://www.sunnewsonline.com/the-need-for-
diaspora-voting/ accessed 15 October 2020
45 “Too Foreign to Vote Diaspora Voting - The
Republic” https://republic.com.ng/february-march-
2021/too-foreign-to-vote/. accessed 31 October 2021.
options in this regard including:46 (a) Personal
voting, the most popular method, requiring
the voter to go to a specific place (eg,
embassy, high commission or any other place
set up for that purpose) to cast vote in person;
(b) Postal voting, by which the voter fills out
the ballot paper at a place he or she chooses
and the vote is then transmitted by ordinary
post to the home country. Sometimes
witnesses are required to confirm the identity
of the voter and witness that he or she has
filled in the ballot paper freely and without
interference; (c) Proxy voting, often used in
combination with either of the first two, by
which a citizen living or staying abroad
choses a proxy who casts the vote for the
voter at a polling place in the home country
or abroad; and (d) Electronic voting, by
which the voter is allowed to digital means of
communication such as telephones, mobile
phones, personal digital assistants (PDAs) or
other internet-enabled devices to cast vote by
electronic means (e-voting), and in this digital
age, expected to become more common in
future. Other countries (eg Australia and New
Zealand) have permitted external voters to
send their votes by fax. Each of these options
has its own advantages and disadvantages.
The main advantages of personal voting this
option are that it ensures the secrecy of the
vote, and that the voter’s choice is guaranteed
to end up on the ballot paper. Postal voting is
easier as it can be practised from most
countries in the world, while the
disadvantages may include high costs and
slow postal services. For the most part, many
countries allow their citizens to cast their
votes in their respective embassies and
consulates. In some cases, some of these
countries are utilizing e-Voting and internet
voting to facilitate the participation of their
citizens in their national elections.47
In other climes, political parties and other
actors have played key role in the advocacy
46 Voting from Abroad. International IDEA Handbook.
Stockholm. 2007
47 Ibid, https://www.sunnewsonline.com/the-need-for-
diaspora-voting/ accessed 15 October 2020
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
332
for introduction of voting rights for absentee
citizens. For example, a provision in
Honduras that had long been stalled was
activated by a party which saw political
advantage in doing so. Also, communities of
expatriates do often seek involvement in their
country of origin, whether migrant workers
seeking to retain links with their home,
members of long-term diaspora communities
opposed to a current or former regime, or
expatriates remitting payments to relatives.48
Indeed, it has become a means of reaffirming
and reinforcing citizenship, bringing about
some feeling of greater closeness to their
native land. A combination of these factors
has also played itself out in the struggle for
diaspora voting in Nigeria.
The Case of Nigeria
The justification for diaspora voting in
Nigeria has been amply restated. Diaspora
voting is geared towards increasing political
participation, thereby contributing to the
legitimacy and accountability of democratic
governments. As citizens, Nigerians in the
Diaspora are as qualified as their compatriots
living at home to participate in the electoral
process, exclusion from which may be
tantamount to a denial of their constitutional
rights to vote and be voted for.49 Secondly,
since Nigerians in the Diaspora are making
meaningful contributions to the socio-
economic development of the country
through investments, remittances and
attraction of foreign investors, it is reasonably
logical that they are granted the right to vote
in general elections that determine, in the
long run, their political and socio-economic
relevance. Thirdly, the votes of about 17
million Nigerians of voting age who live and
work outside Nigeria will make significant
impact in determining the outcome of
48 H. Umoru, “Nigeria not Ripe for Diaspora Voting”.
Vanguard Newspaper, 23 April 2012.
49 B. F. Ibrahim, I. Dele, H. Ukeaja, “Diaspora Voting
in Nigeria’s Elections: An Analysis of the Abike
Dabiri-Erewa Bill of 2012 and the Effectiveness of its
possible inclusion into the 2019 General Elections”.
International Journal of Arts, Humanities and Social
Sciences Studies Volume 4 Issue 7. 2019.
elections in Nigeria and in conferring
credibility on the entire electoral process and
the outcomes of elections.50
Diaspora voting has the potential of changing
the leadership narrative in the country.
Nigerians in the diaspora constitute a sizeable
chunk of the Nigerian population and many
of them play more than an active role in the
quest for good governance in the country.51
Nigeria stands to benefit politically from the
introduction of diaspora voting. Apart from
being in line with current global trend, it will
enhance the credibility and international
rating of general elections in Nigeria.
The importance of effectively mobilising
Nigerians in the diaspora as critical
components of the country’s development
cannot be over emphasized. Reforming
Nigeria’s Electoral Act to enfranchise
millions of Nigerian citizens in the diaspora is
vital to ensuring participation and
consolidation of Nigeria’s nascent democracy.
Involving the diaspora in the electoral process
could have a positive impact on Nigerian
politics and encourage them to further
contribute to the country’s socio-economic
and political development.52
Yet, the Nigerian electoral laws have had no
provisions for diaspora voting to date,
notwithstanding that Nigerians leaving abroad
have shown a desire to participate in the
running of their countries since the advent of
the current democratic dispensation in 1999.
In this, they found inspiration from
developments in other neighbouring countries,
notably Ghana where the military junta of
50 A. Agborh, “Group Wants Voting Rights for
Nigerians in the Diaspora”, Nigerian Tribune, 23
September 2011.
51 Tony Ademiluyi, “ISSUES IN DIASPORA
VOTING”. This Day Newspapers. 24 February 2020
52 Bibi Farouk Ibrahim, Ishaka Dele Humphrey Ukeja,
Diaspora Voting in Nigeria’s Election:Analysis of the
Abike Dabiri-Erewa Bill of 20212 and the
effectiveness of its possible inclusion into the 2019
General Elections. International Journal of Arts
Humanities and Social Science Studies, Vol 4 ,2019
p.44
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
333
Jerry Rawlings had, through the Provisional
National Defence Council’s Representation of
the People Act of 1992 granted voting
rights to citizens of Ghana employed in
government and international NGO offices, as
well as to Ghanaian international students on
government scholarships. In the absence of
such official recognition, Nigerians in the
diaspora took to private efforts to drum
support for the initiative. This was in the light
of the House of Representatives’ rejection of
a 2009 Bill to grant voting rights to Nigerians
in the diaspora. Lawmakers claimed that the
Bill contravened the terms of the 1999
Constitution, which explicitly limits the right
to vote to Nigerian citizens physically present
in the country at the time of registration and
elections. In 2010, President Goodluck
Jonathan expressed his government’s
commitment to ensuring that Nigerians in
diaspora exercise their right to vote in the
2015 elections. Also, in 2012, six members of
the House of Representatives sponsored a
Bill to amend the Electoral Act 2010 to grant
Nigerians in the diaspora the right to vote in
general elections with a view to enfranchising
over 17 million Nigerians living overseas.53
This Bill seeks to amend section 6(1) of the
Principal Act to create offices of the INEC in
“each State of the Federation and Federal
Capital Territory or any other designated
country”, while its Section 4 seeks to amend
Section 12(1) (c) of the Principal Act by
adding the words “or is a Nigerian in
Diaspora” to accommodate Nigerian living
overseas.54
However, the Bill failed to garner sufficient
legislative support, with some
legislators pointing again to constitutional
provisions on voting rights as the reason for
53 Charles Soludo, Is Nigeria losing her 17 Million
Diaspora, This Day February 2, 2013 http://www.
thisdaylive.com/articles/is-nigeria-losing-her-17-
million-diaspora-/138311 accessed 2nd September
2021
54 Ufiem Maurice Ogbonanya ‘Voting rights for
members of the Nigerian Diaspora’
http://www.revparl.ca/36/4/ 36n4e_Ogbonnaya.pdf
accessed 15 september 2021
this outcome, and with a Senate
committee ruling out the possibility of
diaspora voting in the 2015 Elections. Also,
several loopholes were identified in the Bill,
including failure to make clear what types of
elections expatriates could participate in,
what, if any, restrictions or requirements with
regards to length of stay abroad would apply,
and what system voters in the diaspora would
use to cast their votes. The Bill also failed to
establish what criteria, if any, should be used
to determine where external votes are held,
such as if they should be held in any foreign
jurisdiction with resident Nigerian citizens, or
if some sort of numerical threshold should
determine which diaspora communities is
qualified to participate. Taken alongside
the crawling pace of action in Nigeria’s
legislative houses, as well as some
lawmakers’ openly-expressed disdain for
Nigerian expatriates, these types of problems
with previous Bills meant that legislatures
could not pass them quickly enough to
implement diaspora voting before any of the
last three general elections.55 The built-up to
the 2019 elections followed a similar
trajectory, with INEC expressing ‘readiness’
for diaspora voting in 2016, but walking back
from these claims in 2017 with
a statement that ruled out the possibility of
diaspora participation in the 2019 elections.
This same song and dance has continued
through 2021, with multiple statements from
INEC officials affirming, once again, their
readiness to ‘roll out’ diaspora voting. The
latest in the series of efforts towards diaspora
voting is a 2020 Bill seeking to amend the
Electoral Act which was passed for the third
reading in December 2020.
Legal Issues, Challenges, and Implications
for Electoral and the Democratic Process
Several issues have been raised and areas of
concern expressed pertaining to the feasibility
55 “Too Foreign to Vote Diaspora Voting - The
Republic https://republic.com.ng/february-march-
2021/too-foreign-to-vote/. accessed 31 October 2021.
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
334
of having diaspora voting in Nigeria. Some of
these issues pertains to the legality or
constitutionality of the proposed electoral
reforms while others pertain to practical
implementation challenges and other
ecological factors arising from the contextual
characteristics of the electoral environment
and the Nigerian democratic space. In
discussing these challenges, we pay attention
to issues that have dominated popular
discussions on the subject-matter, legal and
constitutional objections from the critical
stakeholders, practical implementation
challenges raised by the electoral commission
and other actors, and experiences learnt from
other countries that have or are embarking on
similar efforts.
From a theoretical perspective, external
voting may tend to go against one of the
requirements for active and passive voting
rights which is that the voters be resident
within the state territory where the election is
taking place. There is also the problem of
political representation of citizens living
abroad. Political representation of citizens
who are not resident or not present in their
country of citizenship. If people abroad can
vote, then they should be allowed to be voted
for as well. Other issues pertain to how to
guarantee the maintenance of principles of
universal equal suffrage, secrecy of voting,
equality of electoral competition, and
prevention of electoral offences.
The core issue that has challenged the path of
Nigerians living abroad to participate in
election is whether the 1999 Constitution and
the Electoral Act in operation could permit
such an exercise. The Constitution provides
in Section 77(2) that for one to take part in an
election such person must be a resident of
Nigeria. The main legal issue therefore
involves amendment of the 1999 Constitution
within the ambit of the stringent provisions
Section 9 of the Constitution. In same vein,
the Electoral Act 2010 does not provide for
voting rights of Nigerians in the Diaspora.56
Some sections of the Constitution and
Electoral Act therefore need to be amended to
make way for Nigerians living outside the
country to participate in the electoral process
and vote.
Other legal issues arising from diaspora
election may pose some substantive and
procedural challenges for the judicial process.
Jurisdiction is the legal authority granted to a
court to hear cases and make decisions and
judgment, it is no doubt the live wire of any
action in the court of law without which the
action will be lifeless. The issue of
jurisdiction poses an enormous legal issue on
diaspora voting. In case of litigation, which
courts will litigants in diaspora file their suits?
There is also the problem of judicial review
of elections held on a foreign territory. When
irregularities are alleged in an election,
documents may not be readily available.
There may be physical problems in calling of
witnesses. As a result, the quality of judicial
decisions may be more contentious and their
implementation more difficult.57 The
accessibility of documents and availability of
witnesses may pose challenge to the quality
of judicial decisions when irregularities are
alleged.
Outside the realm of legality, implementation
challenges abound. Diaspora voting
operations are complex and pose considerable
political, financial, administrative and
logistical challenges. Its practical
implementation is complicated by factors
such as the number of voters, their locations,
the distances involved, high costs of external
voting and complexity of the voting system.
Also, the implementation of diaspora voting
poses technical, organisational and
56 Ufiem Maurice Ogbonanya ‘Voting rights for
members of the Nigerian Diaspora’ http://www.
revparl.ca/36/ 4/36n4e_Ogbonnaya.pdf accessed 15
september 2021
57 Dieter Nohlen and Florian Grotz The legal
framework and an overview of electoral legislation’ in
Voting from Abroad International IDEA handbook
p.74
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
335
administrative problems which may interfere
with the conduct of a free and fair election.
The logistics of holding elections outside a
country’s borders may be onerous in terms of
organisation, finance and other material costs
that may compromise the conduct of the main
election within the borders. Organisation of
elections outside the national borders, which
introduces organisational problems, questions
of the transparency of voting procedures, the
issue of equality of party competition and
transparency in electoral fraud. In the first
instance, an election management body (EMB)
may have its independence and integrity
compromised since it cannot be expected to
function as autonomously as the constitution
may dictate since it must work within the
limits permitted by the constitution and the
laws of the foreign countries involved. Apart
from that, its independence and integrity may
be compromised if it has to collaborate with
the institutions of the host country and
possibly also with branches of the executive
of the home country (eg, embassies and high
commissions) interior).58 It would be near
impossibility to expect the EMB to post its
trained officials to all the foreign countries
where such elections are to be held, and
therefore must make use of existing
infrastructure of the home government which
are effectively controlled by the government.
Other issues may relate to registration of
voters, determination of the qualifications for
participation in terms of the size of the
prospective voting in an external territory,
and the participation rights of those citizens
who are undocumented aliens or immigrants
in those foreign territories. These practical
challenges have made some countries to
abandon the practice as external voting
provisions have not always proved to be
sustainable, as the case of the Cook Islands
where it was abolished for the 2004 election
shows.59
58 Dieter Nohlen and Florian Grotz, The legal
framework and an overview of electoral legislation’ in
Voting from Abroad International IDEA handbook
p.73
59 Collyer and Vathi, 2007.
There are other challenges attendant to the
peculiar contextual environment of the
Nigerian political landscape. The call for
diaspora voting has been noted to have
political and geopolitical colouration. This,
perhaps, explains the lack of political will for
a diaspora vote because of the seeming
partisan alignment of diaspora groups.
Additional factors include poor data on the
size and demographics of this diaspora. This
difficulty in predicting diaspora leanings
limits political will substantially, as a party
that pushes for diaspora voting has no real
way of knowing how these efforts might
affect electoral outcomes.60 Further
complicating the matter are the ethnic and
religious differences which polarize the
country along the North-South divide that is
reflected in the preponderance of Southern
Christians among Nigerian diasporas in the
West while their counterparts in Middle East
and the wider Muslim world are Muslims.
More complicated still are patterns of
Nigerian emigration to other African
countries, which includes large diaspora
communities in regional economic hubs, like
Ghana, South Africa and Kenya; market and
trader communities across West Africa; as
well as refugees of violence and
socioeconomic instability all along Nigeria’s
Northern border. Granting a diaspora vote
without serious effort to include Nigerians in
these diaspora communities, which are less
likely to pursue formal cultural and political
organization than their compatriots in more
distant locales like the US or UK, risks
systematically marginalizing these members
of the Nigerian diaspora in elections, with the
attendant socio-economic, cultural and
political dislocations.61 Other challenges
attendant to the peculiar geopolitical
character of Nigeria include the slow pace the
legislative process generally,62 the seeming
disconnect between the Diaspora community
and the policy makers at home sometimes
reflected in open expression of disdain for
60 Ibid.
61 Ibid.
62 Quis
Conference Proceedings of the 53rd Nigerian Association of Law Teachers’ annual conference 2022
336
the project by key political office
holders,63 low political will, and poor data on
the size and demographics of this diaspora.
CONCLUSION
Nigerians in the Diaspora constitute a
sizeable chunk of the Nigerian population and
a considerable number of them play more
than an active role in the quest for good
governance in the country touted to be the
most populous on the African continent. They,
like other citizens, are entitled to the right to
vote in elections which is a fundamental right
common to the constitutional traditions. This
is because Nigerian citizens deprived of their
right to vote in national elections invariable
often face exclusion from political life. More
importantly, in our world of today, the
principle of universal suffrage can only be
fully achieved if citizens living abroad are
allowed to vote.
Nigeria as a country and its citizens living
abroad have a lot to gain from participating in
the electoral process of their native country.
Diaspora voting has the potential to make
Nigerians living abroad stay connected to
their native country thus developing respect
for the system of governance in the country.
They could also be encouraged to make more
contributions to their native country, if they
know that they have a stake in how it is being
run which is recognized by law and protected
by the government.
Notwithstanding the mutually rewarding
benefits of diaspora voting for the diaspora
communities and the country, the path
towards diaspora voting in Nigeria has met
with several challenges. There are
constitutional and legal hurdles that need to
be crossed. There also organizational,
administrative, financial and other logistical
challenges that may attend the
implementation of the law of and when
passed. International norms however seem to
negate any restrictions on voting rights. Since
the voting rights guaranteed under the
63
International Covenant on Civil and Political
Rights (ICCPR) are for citizens,64 it is hard to
see how migration or being non-resident in a
country at a particular time should ordinarily
deprive a person of their citizenship status,65
In the circumstances, some recommendation
can be made as follows:
1. Nigerian elections will only be legitimate
if fundamental democratic norms are
respected, including enabling the
Nigerian diaspora to exercise their
constitutional right to vote.
2. Diaspora Voting is a complex process
that requires technical knowledge,
financial resources, and oversight. INEC
should start in earnest the process of
developing guidelines, regulations and
policies in anticipation of an amendment
to the legal framework to enable
Nigerians in the Diaspora to vote. INEC
should take great care to ensure the
transparency, credibility and security of
the diaspora voting process.
3. The National Assembly must address the
challenges such as provisions of the
constitution on the registration of voters,
one of which is that voters must reside
in Nigeria and a stipulation of the
Electoral Act that demands that voters
must present themselves personally at a
polling unit in a constituency at which
the voter was registered to vote.
Administrative challenge of conducting
elections for the diaspora.66
4. International Observers should be
involved to monitor the voting process
to ensure that there is no fraud.
5. Nigeria should emulate the electoral
practice in other African countries like
Botswana, Mozambique and Senegal
which have provisions in their
Constitutions that allow their citizens in
the diaspora to vote.
64 ICCPR, art 25
65 See Richard Lappin, ‘The Right to Vote for Non-
Resident Citizens in Europe’ (2016) 65 International
and Comparative Law Quarterly 859, 863
66 ibid
…. The Necessity of Diaspora Voting in the Electoral Process of Nigeria: Issues and Challenges
337
6. Nigerian government should allow
diaspora voting and ensure that it is
conducted in such a way as to meet the
requirements of security, transparency
and secrecy.
With the increasing interests in diaspora
voting and digitisation of the electoral process
made possible by the continuing
advancements in information and
communication technology, this paper argues
that there is a need to amend the existing
electoral laws to accommodate diaspora
voting in line with global best practices.67
This in a way, would help in rebuilding our
increasingly weakening democracy.
67 “INEC – NASS make case for Diaspora Voting.”
https://inecnigeria.org/news-all/inec-nass-make-case-
for-diaspora-voting/. accessed 30 October 2021
*Contributions from Olaide Abass
Gbadamosi (Professor), Mojeed Olujinmi A
Alabi (Professor), J Olu Arowosegbe
(Lecturer), Aishatu E Adaji (Lecturer), and
Halimat A Adeniran (Lecturer), all of the
College of Law, Osun State University,
Nigeria