Buhari’s Warning On Ballot Box Snatching By; Prof. Itse Sagay

The controversy arising from the President’s warning that anyone
snatching ballot boxes or violently disrupting the coming elections
(23rd February 2019 and 9th March 2019) may be doing so at the risk
of his life is uncalled for. It is a very timely and benevolent
advice.

In the first place, anyone not planning to snatch ballot boxes
or disrupt the election process has nothing to worry about. If it
is assumed that those expressing anger and dismay in the media are
not planning to commit any of these offences, then why take Panadol
for someone else’s headache?

Many angry critics have declared the statement illegal. But have
they done the necessary research? It is true that under Section 118
paragraphs (f)(i)(j) of the Electoral Act 2010, destroying or
removing ballot papers is liable on conviction to 2 years
imprisonment only. This by implication applies to anyone who
disrupts the voting process in any way.

But the matter cannot end there. What if the culprit starts
running away with the ballot box and other voting materials? The
security agencies and even the ordinary citizens are entitled by
law to chase after him with the intention of apprehending him and
recovering the materials.

Now the critical factor is what level of force can be applied to
stop him. Section 261 of the Criminal Code provides:

“261. It is lawful for a person who is engaged in the lawful
execution of any sentence, process or warrant, or is making any
arrest, and for any person lawfully assisting him, to use such
force as may be reasonably necessary to overcome any force used in
resisting such execution or arrest.”

Thus, such a person can intentionally be shot dead, only if the
penalty for his offence is 7 years and above. The security or
arresting official is allowed to use such force as may be
reasonably necessary in securing the arrest. If the ballot box
snatcher has fleeter foot (i.e., faster) than the security men,
reasonable force to stop and arrest him, could include shooting his
legs to stop him.

It is instructive to note that such a person can bleed to death
from his leg wounds, if urgent medical attention is not provided
for him. One other question arising is this: if the Security
Officer trying to aims for the legs, misses the legs and hits the
chest instead, is that an offence? Will the intention [mens rea] of
the Security man count? Yes, it will. No one can be guilty of a
crime without proof of mens rea, in this case, the intention to
kill. So the Electoral Act 2010 may provide some legal protection
for the ballot box snatcher. But it is not fool proof.

Worse still, if the ballot box snatching is treated by the Court
as an act in Breach of the Peace (Section 274 of the Criminal
Code), all the Security men have to do is to use such force as is
reasonably necessary and reasonably proportionate to the danger.
There is no protection for the culprit based on the years the crime
will fetch on conviction. The only control over the Security man is
that he used or attempted to use reasonable force.

The provision on suppression of riot is the most open ended.

“276. It is lawful for any person to use such force as is
necessary to suppress a riot, and is reasonably proportioned to the
danger to be apprehended from its continuance.”

Can a commotion caused by persons trying to disrupt an election
be classified as a riot? Your guess is as good as mine. But once so
classified, there is really to limitation to the force that
security agencies can deploy in that situation, including shooting
to kill if it is reasonably proportional to the danger to be
apprehended from its continuance.

Of course, regardless of whatever Section or scenario it is, if
the ballot snatchers or election disrupters are armed, they are a
goner. The Security men have a complete right of self-defence. So
the President’s admonition is not far from the reality of our
law.

The Moral of all this

Do not attempt to snatch ballot boxes or disrupt the elections.
Holding up Part (VII) (Electoral Offences) of the Electoral Act,
whilst snatching ballot boxes or disrupting election, will not save
the culprit. Part (VII) is not a five –leafed glover (an old charm
that offers protection against danger).