OPINION: Constitutionality Of Ban On Smart Phones, Camera At Pooling Booths.

By: Ebimanamonye Chidera Kizito and Okonkwo Michael Chidera (Esq Mike) 

The dilemma on the move of the independent national electoral Commission(INEC)to ban voters from holding their smartphone,cameras once the ballot papers are issued and until the cast their votes in the ballot box has generated  dissenting views. Some persons accept such move by inec as a welcome development which will  stop the buying and selling of votes during election while others criticize it as unconstitutional.

Meanwhile, the deputy senate present Dr. Ike ekweremmadu made open his heart felt opinion on this issue by interpretating the  ban unconstitutional. He maintains that the move to ban voters from holding their smartphone /smartphones at pooling booths during voting is against the fundamental right provision of sec 39(1) cfrn 1999 as amended which entails that 

"every person shall be entitled to freedom of expression, including freedom to hold opinion and to receive and impact ideas and information without interference".

He further stated, 

"NIGERIANS are free to express themselves through the media and free speech. I believe that in this age of technology, we cannot be going backward, so we need to take full advantage of the accomplishments of technology in our lives"

Needful as the above seems to be, we see no reasonable justification to concur with him as we have reasons to take exception. 

Meanwhile, what else will a person whom has been issued a ballot paper/papers have to express or communicate other than to cast his /her vote/votes.At our knowledge, this is infact laying something on nothing and expecting it to stand(EX NIHILO NIL FIT).

It appears that critics of the ban of use of smartphone,camera during voting process have hinged on sec. 39 (1)cfrn(fredom of expression) to declare the ban unconstitutional without regard to its exceptions as enshrined in sec 45 cfrn 1999 which supports the derogation from some fundamental rights which sec 39 is inclusive.sec 45(1) states that nothing in sec 37,38,39,40,41 of this constitution shall invalidate any law reasonably justifiable in a democratic society:

A) in the interest of defence,public safety,public order, public morality, or public health. 

B) for the purpose of protecting the rights and freedom of other person's. 

According to black law dictionary, Reasonability means just, fair and proper. The following are grounds upon which the ban is reasonable justifiable:

A) the ban is intadem with the principle of secret balloting :The mischief behind secret balloting  is to protect voters from being influenced on whom to vote and also to secure votes cast in the pooling units thereby giving essence to its secrecy. 

B) The ban is in agreement with the principle of democratic system of government. A democratic system of government presuposses that elections should not only be free and fair, but also be credibly justified hence the ban .

In view of public order which entails public decorum and state of public tranquility in public affair, it's common knowledge that vote buying and selling is unethical and wrong which have been attributable to the use of smartphone, camera e. t. c. Suffice it to say that franchise is the right to vote and be voted for and not right to snap, video , record or hold phones or camera once ballot paper have been issued to a voter. This move by INEC will stop electoral malpractices and restore public orderliness as voters will not wait to be bribed in the course of voting while on the other hand, politicians will not hold voters to ransome by demanding evidence of whom the had voted for. 

It's  because of public orderliness that prompted the ban of use of phones and camera in the courts In Nigeria during court proceedings and  to make sure such order are obeyed, it's disobedience are punished as contempt of court (contempt infacie curie).

Also, the use of phones and camera  during exams like waec, neco, intra -school exams are banned. This seriousness attached to Nigeria exams and also it's court for purpose of orderliness should not be lacking In our electoral process. 

Furthermore, with regards to public morality, morality  is the ability to distinguish good from bad. It's morally wrong for a voter to snap his votes with a view of selling it for financial or other advantages. Also, the use of smartphones,camera to snap votes for purpose of vote buying and selling during elections have deviated from the status quo of which phones and camera ought to serve.

This has amounted to nuisance and  abuse to essence of ethics of phone ,reason being that the welfare of the people which is to produce a rightful Candidate following a rightful and legal process is supreme(salus populis est suprema Lex) 

Conclusively, it's pertinent to note that INEC also has as their responsibility for the sustainace of social order during the election. It's justifiable for them to use reasonable precaution to preserve order which may involve the derogation of acts which,if unchecked or unrestrained might lead to disorder even though those acts would not themselves do so directly. 

Rightly said, sec 45 expressly permits derogation from all guaranteed fundamental right except right to life (sec 33) and protection against retroactive criminal offence 36(8).

 

The above assertion has been given judicial blessing

on ground of Reasonability in the celebrated cases of CHERANCI V CHERANCI (1960)NRNLR24 AND OLAWOYIN V AG NORTHERN NIGERIA (1962)NRNLR29.        

BATE  J. said  "A RESTRICTION UPON A FUNDAMENTAL RIGHT MUST BEFORE IT MAY BE CONSIDERED JUSTIFIABLE, :

(A) be necessary in the interest of public morality, defence,order,e.t.c 

(B) must not be excessive or out of proportion to the object which it is sort to achieve. 

        

In view of the above, it should be agreed that the ban on smartphone, cameras is for public order during the electoral process. And also clear that this ban was never in any way excessive, as the ban wasn't that citizens can't use their phones, cameras as the case may be on the election day neither is it stopping the use of such materials at the pooling unit but only that in the course when ballot papers have been issued to  voters and until they cast their votes.