Less than 60 days to Nigeria’s St. Valentine’s Day elections in 2015, the Independent National Electoral Commission (INEC), confronts a major headache with the voting rights of Internally Displaced Persons (IDPs) Kampala-AU-Convention-IDPs-Eng-2.pdf.  INEC has seemed somewhat slow to address this question because it must reconcile mutually contradictory claims of law, intuition, and fact. There are three questions that need answers: how many IDPs do we have to plan for? What is the relevant law? And where are the people affected? It is necessary to take these issues one after the other.

Let’s begin with the numbers. No one has any exact numbers of Nigeria’s IDPs. Different agencies have different numbers. In reality, the numbers change daily. For instance, the United Nations Office for West Africa (UNOWA) estimates about 700,000 IDPs from north-east Nigeria, alone. The United Nations High Commissioner for Refugees (UNHCR) puts the IDP population now in north-east at closer to 900,000. The National Emergency Management Agency (NEMA)’s figures are closer to UNOWA’s.

There’re three notable features about these figures. First, they mostly count encamped and documented IDPs. Second, therefore, they exclude informal displacement: i.e. those who have been taken in by family, friends and other informal support structures around. If we geared documented IDPs from the North-East to undocumented ones at a very conservative rate of 1:1, the numbers easily point north of 1.5 million.

However, thirdly, the National Commission for Refugees, which has statutory responsibility for IDPs, estimated in its 2013 report issued in February 2014 that there were about 3.3 million IDPs in Nigeria. The Internal Displacement Monitoring Centre (IDMC) in Geneva currently credits Nigeria with an IDP population of over 4.3million IDPs, the highest in Africa and third in the world, behind only Syria and Iraq.

By any measure, these numbers are electorally significant. In a closely fought election, they could easily make the difference between winning and losing.

The causes of displacement in Nigeria include inter-communal and ethnic violence in the Middle Belt, desertification in the Sahelian fringes of northern Nigeria, inundation in the creeks and littoral of the Nigeria Delta, as well as forced evictions and sundry destitution. In truth, the footprint of displacement in Nigeria is national.

Given this reality, what does the law say and what is to be done? It’s easy here for enthusiasm to overwhelm reason. The first principle has to be that all adult Nigerians of age (18 years) who are within the country should not be denied the right to vote merely because of displacement.

The status of IDP in this context is different from that of a refugee. Strictly speaking, unlike an IDP, a refugee is a displaced person who has fled to another country. Nigerian law does not grant voting rights in national elections to persons beyond its borders. So there is no room for counting the votes of refugees.

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INEC is a creation of law and must base whatever it does on law. In this case, the relevant laws include the Constitution, the Electoral Act and the African Charter on Human and Peoples’ Rights which is also domestic law in Nigeria. Specifically, African countries party to the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa (Kampala Convention) undertake in Article 2(l) of the Convention to “take necessary measures to ensure that internally displaced persons who are citizens in their country of nationality can enjoy their civic and political rights, particularly public participation, the right to vote and to be elected to public office.” Nigeria ratified this Convention in 2012.

The Electoral Act does not make specific provisions concerning the voting rights of IDPs but provides that Nigerians above 18 years may register to vote if they are ordinarily resident, originate from or work in any registration area. This is arguably elastic enough to include IDPs. If not, however, then INEC can use its rule making powers under the Act to provide and administer voting rights of IDPs. But it also needs the resources and security to make this happen.

Finding a basis in law or regulations to deal with this issue does not end the matter. There is a natural concern for the situation of the IDPs from the conflict in the North-East. However, it would be politically damaging to deal with the situation of IDPs from the north-east while excluding IDPs from other parts of Nigeria. Yet, it’s plainly difficult now to roll out on a national scale the registration of IDPs of voting age with sufficient time to verify and integrate them into the Electoral Roll.

With reference to IDPs from the north-east in particular, there is a need to reconcile intuition with the pattern emerging from INEC’s distribution of Permanent Voters’ Cards (PVCs). According to the records from the first two rounds of PVC distribution in 22 States, the states of the North-East (including Bauchi, 83%, and Yobe in the heart of the insurgency with 80.3%) have the highest average percentage of PVC collection with 78%. North-West (including Sokoto with 88.9%) comes next with 77%. By comparison, the South-East had a mere 49% and the North-Central 52%.

There are two ways to read these numbers. One possibility is that the PVC collection process could have been contaminated and the proportions reflected in INEC’s interim distribution figures at least in some states are unrealistic. If, however, these numbers are accepted as realistic, then the IDP pathology from the insurgency may not be as serious as perceived. It is difficult to sustain both interpretations.

In order to figure a way around the IDP problem, INEC first has to solve this conundrum. It does not have a lot of time. Under the Electoral Act, it must deliver the Electoral Roll to the parties not later than 13 January 2014.

Odinkalu is Chairman of the Governing Council of Nigeria’s National Human Rights Commission and also Chairman of the Board of Directors of the International Refugee Rights Initiative (IRRI), Kampala/New York.