The Federal High Court sitting in Abuja, on Wednesday, declined to compel the Independent National Electoral Commission, INEC, to allow Nigerians in diaspora to participate in the forthcoming general elections.

The court, in a judgement that was delivered by Justice Inyang Ekwo, held that existing laws in the country does not permit INEC to include citizens in diaspora, in the database of eligible voters for the election.

According to the court, by the provisions of Sections 77 (2) and 117 (2) of the 1999 Constitution, as amended, the right to vote was reserved for every citizen of Nigeria that has attained the age of 18 years and who is residing in the country at the time of registration of voters for the purpose of election.

Justice Ekwo noted that there was a lacuna in the Constitution that ought to be filled to guarantee the right of citizens outside the shores of the country to vote.

It will be recalled that Nigerians in diaspora had sued President Muhammadu Buhari and INEC, insisting they must be allowed to participate in the 2023 general elections.

The plaintiffs, who told the court that they are resident in the United Kingdom and various parts of the world, prayed the court to halt further preparations for the elections, pending their inclusion in INEC’s database.

They contended that the continued refusal of the electoral body to create room for them to participate in general elections, amounted to gross violation of their fundamental rights.

The suit marked: FHC/ ABJ/ CS/2119/2022, was brought by two plaintiffs, Chikwe Nkemnacho and Kenneth Azubuike Nkemnacho, both of whom are resident in the UK.

the plaintiffs, among other things, prayed the court to declare that they were entitled to participate in the electoral process by being registered to vote in 2023 and in all elections wherever they are domiciled worldwide, in line with sections 13, 14, 42 and 17 of the 1999 Constitution, as amended.

As well as a declaration that there was sufficient time for INEC to include them in its database.

Cited as 1st to 4th defendants in the matter were; the INEC and its Chairman, Prof. Mahmood Yakubu, President Buhari and the Federal Republic of Nigeria.

In his judgement, Justice Ekwo held that the Constitution was specific that only citizens “residing in Nigeria”, could vote in an election.

He held that where a right was not provided for in the Constitution, same cannot be enforced by a court, adding that the best the plaintiffs could do was to engage the legislature to amend the extant laws.

“The court does not enact laws. It cannot also expand the law in order to accommodate an issue before it no matter how sympathetic or humanitarian the cause or situation is.

“It only interprets and expounds the laws, and, it is the law as stated before in this judgment, that when interpreting the provisions of a statue, the court must not ascribe meanings to clear, plain and unambiguous provisions in order to make such provisions conform to the court’s view of their meanings or what they ought to be,” Justice Ekwo added.

Besides, he observed that the plaintiffs brought the legal action at the eleventh hour to the general elections.

“The applicants can only be commended for bringing this matter to the fore.

However, the court is not where the solution lies for now.

“What this case has revealed is that there is lacuna in the existing law with respect to the right of Nigerians in diaspora to votes in elections in Nigeria.

“The lacuna here is not such that the court can fill by pronouncement or by importing statutory provisions from anywhere.

“There is a situation whose solution is by legislative and not judicial process,” the court added.

Consequently, it dismissed the suit as lacking in merit.




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