analysisBy Jirinwayo Jude Odinkonigbo
Lagos — A national daily recently reported that: "A Senior Advocate of Nigeria, Prof. Alfred Kasumu, has urged the Chairman of the Independent National Electoral Commission, Prof. Maurice Iwu, to resign from office. Citing the dual citizenship of the INEC boss, Kasumu insisted that it was unconstitutional for Iwu to occupy his current post, since he was alleged to hold the citizenship of both the United States of America and that of Nigeria".
According to this report, the learned Senior Advocate of Nigeria relied on the provisions of sections 28, 66(1)(a) and 156(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria as his authorities for making this call.
With due respect to the highly respected learned Senior Advocate of Nigeria, his arguments are inconsistent with the provisions of the 1999 Constitution of the Federal Republic of Nigeria as they relate to the qualification of persons who are Nigerians by birth but acquired citizenship of other countries (dual citizenship) to hold any public position whether political or otherwise in Nigeria.
I hasten to note that the 1999 Constitution of the Federal Republic of Nigeria recognizes citizenship by birth (section 25); citizenship by registration (section 26); and citizenship by naturalization (27). Of these three kinds of citizenship, it is the first, ie, citizenship by birth that is pertinent for the purposes of this rebuttal. Thus, it is helpful to understand who is designated a citizen of Nigeria by birth and whether or not such a person, under law, loses any privilege or right if he or she acquires the citizenship of another country.
First, Section 25 of the 1999 Constitution clearly defines who qualifies as a Nigerian citizen by birth. Thus, the reading of section 25 shows that the claim for Nigerian citizenship by birth could be anchored on different grounds, depending on each person's circumstance of birth and parentage.
The next and most important part of this argument is to examine the relevant provisions of the constitution dealing with dual citizenship and to see if there is any liability attached to it under the law. In this regard, Section 28 of the Constitution is crucial. The most relevant to this argument is subsection 1. In this subsection, the operating clause is "...if, not being a citizen of Nigeria by birth." Therefore, this section denies a citizen of Nigeria who is not a Nigerian citizen by birth, his or her Nigerian citizenship if he or she acquires the citizenship of any other country that is not his or her country of birth. From this, it is clearly evident that a Nigerian citizen by birth is not in any way denied his or her Nigerian citizenship if s/he merely acquires the citizenship of another country.
The next issue to consider is whether or not the acquisition of dual citizenship by a Nigerian citizen by birth disqualifies him or her from holding any political position in Nigeria. In this regard, a very important provision is section 66 of the 1999 Constitution. This section is very crucial because virtually every section of the Constitution bordering on the qualification for membership of certain bodies or political offices refers to it. Expectedly, this section contains many grounds that disqualify persons seeking political positions or specifically aspiring to go to the House of Representatives or the Senate of the Federal Republic of Nigeria. But the very provision relevant to the present argument is the paragraph (a) of subsection 1 of section 66. For the avoidance of doubt, section 66(1)(a) of the 1999 Constitution of the Federal Republic of Nigeria provides that:
'No person shall be qualified for election to the Senate or the House of Representatives if subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country.'
That proviso is contained in the exemption clause deliberately inserted in the above paragraph stating that " subject to the provisions of section 28 of this Constitution". This means that the above paragraph cannot be interpreted without its joint reading or interpretation with the provisions of section 28. And in section 28, it is already seen that the provision does not apply to a Nigerian citizen by birth who voluntarily acquires the citizenship of any other country. This follows that the disqualifying ground in section 66(1)(a) can apply to other Nigerian citizens but not to a Nigerian citizen by birth.
Fortunately, our revered and fearless courts have actually interpreted the provisions of the Constitution on the qualifications of dual Nigerian citizens by birth to holding political offices in the country. The most recent case, which my research reveals, is the decision of the Federal High Court of Nigeria, Abuja Division presided over by the fearless Honourable Justice A.I. Chikere in PROF. ISA ODIDI & ORS. v INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) SUIT NO. FHC/ABJ/CS/28/07. In this case, the 1st and 2nd plaintiffs are Nigerian citizens by birth from Katsina and Lagos States respectively. Isa Odidi, the 1st plaintiff, holds Canadian citizenship; while Oluwafolajimi Bello, the 2nd plaintiff, holds United States citizenship. Both belong to the New Democrats Party, the 3rd plaintiff to this suit; and were duly cleared to run as President and Vice-Presidential aspirants to the office of the Nigerian Presidency under the platform of their political party (NDP). Later, INEC invited the duo for a screening exercise. In compliance with this invitation, the 1st and 2nd plaintiffs appeared on 23rd and 24th January 2007 respectively before an INEC screening panel whereon they were told they failed the qualification test for the presidential election because of their dual citizenship status. INEC cited the provisions of sections 28 and 137 of the Constitution as its authorities for the disqualifications. Although we are aware of recent judicial pronouncements declaring the incapacity of INEC to disqualify any candidate, this very case examines lucidly and objectively the qualification of a dual Nigerian citizen by birth to hold any political position in Nigeria: especially the highest political office in the country, the Nigerian Presidency.
Based on the facts of this case, the issues formulated by the plaintiffs for determination are:
(a). Whether by virtue of combined provisions of sections 25, 28 and 137 of the 1999 Constitution of the Federal Republic of Nigeria, the plaintiffs who are Nigerian citizens by birth but have dual nationalities are qualified to contest the position of President and Vice-President of the Federal Republic of Nigeria respectively on the platform of New Democrats Party in the 2007 General Election.
(b) Whether disqualification of the plaintiffs by the defendants from contesting the position of President and Vice-President of the Federal Republic of Nigeria respectively is constitutional, lawful and legal having regards to the provisions of sections 25, 28, and 137 of the 1999 Constitution of the Federal Republic of Nigeria.
After a thorough examination of the relevant sections of the Constitution, the court while upholding the unqualified rights of the 1st and 2nd plaintiffs to aspire to the highest political position in the land, ruled that the provisions of the Constitution are very clear and unambiguous; such that the interpretation of the relevant sections and the Constitution as a whole empower a dual Nigerian citizen by birth to hold any political position in the country without apology to anybody whatsoever. The court expresses that it is duty-bound to follow authoritative judicial precedents already established by our superior courts of law. In this regard, the court followed and cited with approval the decision of the Nigerian Court of Appeal in OGBEIDE v OSULA  12 NWLR PART 886 PAGE 86 at 138 where the Court of Appeal stated, without equivocation, that under the 1999 Constitution of the Federal Republic of Nigeria a Nigerian citizen by birth is free as the air to voluntarily acquire the citizenship of another country and he or she does not stand to be disqualified from holding any political position by virtue of his/her dual citizenship. In conclusion, the Federal High Court at the last page of its judgment declares that:
The above case is in all fours with the present suit and by the doctrine of stare decises I am bound by the decision of the appellate Court. I adopt same as mine and hold that the 1999 Constitution of Federal Republic of Nigeria recognizes dual citizenship and same cannot be a hare for Plaintiffs to contest election especially when they are Nigerians by birth. I so hold.
From the above, it is very clear that a Nigerian citizen by birth cannot and will never, under the present Constitution, be made to forfeit his Nigerian citizenship or forbidden from holding any political position by the mere and only reason that he or she voluntarily acquires the citizenship of any country. To compound the heartaches of those clamoring to bar their fellow compatriots from contributing their quota to the development of Nigeria, the Constitution does not even stop any Nigerian citizen by birth from holding triple or quadruple citizenship of other countries. Therefore, Nigerians who are dual, triple or quadruple citizens by birth are advised that they are as free as the air to go home and contribute their quota towards the development of our dear country. In this globalized world, where development-minded countries, including Nigeria, allow their citizens by birth to acquire the citizenship of other countries, such Nigerians should be rightly free to aspire to any position of their choice in their ancestral homeland.
Finally, it should be noted that the 1999 Constitution of the Federal Republic of Nigeria is the Supreme document with binding force on all authorities and persons in Nigeria. Hence, any provision of any other document or utterances of any person, no matter how highly placed, that is in conflict with the provisions of this supreme and sacred document is to the extent of its inconsistency void, illegal and of no effect whatsoever.
Next time, we will examine why the Arnold Alois Schwarzenegger's of Nigeria must be allowed to have a California State in Nigeria instead of engaging in illegal and unlawful deportations that are setting the country backward. Nigeria must join the democratic and development-minded forces of the North and South poles in the present global match for development.
- Mr. Odinkonigbo is a Ph.D Candidate at Osgoode Hall Law School Toronto, Canada.