Prof. Itse Sagay, San.

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.

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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).