Daily Champion (Lagos)

14 June 2011

Nigeria: Dual Citizenship And Elective Position in Country

The petition by the Oyo State chapter of the Peoples Democratic Party {PDP} and the immediate past Governor of Oyo State, Chief Adebayo Alao-Akala to the state Election Petitions Tribunal urging the Tribunal to invalidate the election of Senator Abiola Ajimobi as the Governor of the state on the basis that Senator Ajimobi holds dual citizenship of Nigeria and the United State of America has again brought to the fore the needless debate as to whether holding dual citizenship ipso facto disqualifies such holder from contesting elective positions in the country.

The positions of the Constitution of the Federal Republic of Nigerian {'the Constitution'} and judicial pronouncements on the matter are very clear, unambiguous and consistent- holding dual citizenship of Nigeria and another country will not bar such holder from contesting elective posts in Nigeria provided that the person holding the dual nationality acquired their Nigerian nationality by birth.

In the view of this writer given the very clear provisions of the Constitution on the matter and the interpretations of those provisions by the Courts, the petition of the Oyo state PDP is frivolous and without any merit and is thus unlikely to succeed in so far as it relates to Senator Ajimobi's dual nationality.

It will also be submitted that given the rapidity with which the world is changing and compressing into a truly 'global village', where old borders and barriers are collapsing, making way for more seamless international economic and political integration, it is not in the economic or political interest of Nigeria to disqualify a sizeable amount of its better brains from participating in its politics just because they hold dual nationality.

The PDP's petition appears to have been predicated on the provision of Section 182{1} {a} of The Constitution. However Section 182 must be read in conjunction with other relevant sections of the Constitution, especially Section 28 of the same Constitution. Perhaps the starting point is to briefly reiterate the way and manner one can acquire Nigerian citizenship. Sections 25-27 of the Constitution outline the various ways one may acquire Nigerian citizenship.

Section 25 of the Constitution provides that one can acquire Nigerian citizenship by birth; Section 26 provides that one can also acquire Nigerian citizenship by registration whilst Section 27 provides that one can acquire Nigerian citizenship by naturalisation. Thus it can be seen that one can acquire Nigerian citizenship either by birth, by registration or by naturalisation. This different method of acquisition is important because different rights and consequences flow from them; depending on how one acquired the nationality.

As previously stated, the PDP predicated their petition on the provisions of Section 182{1} {a} of the Constitution which provides that: No person shall be qualified for election to the office of governor of a state if; subject to the provision of 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, he has made a declaration of allegiance to such other country."

It is clear from reading the above section that the force of its provision is subject to the provision of Section 28 of the Constitution. Section 28 provides that-

' Subject to the other provisions of this section, a person shall forfeit forthwith his Nigerian citizenship if, not being a citizen of Nigeria by birth, he acquires or retains the citizenship or nationality of a country, other than Nigeria, of which he is not a citizen by birth.'

The crucial, decisive phrase is the underlined words above- only those who are Nigerians by registration or naturalisation shall forfeit their citizenship if they acquired the citizenship of other countries. The requirement to forfeit Nigerian nationality/citizenship upon acquisition of the nationality/citizenship of another country does not apply to those who are Nigerians by birth.

Thus the other provisions of the Constitution dealing with qualifications to hold elective offices, such as Sections 66 and 137 of the Constitution {dealing with disqualifications for Legislative and Presidential positions} must be read in conjunction with the provision of Section 28. Their pronouncements on disqualifications do not apply to those who are Nigerians by birth.

This position has been lent credence by judicial pronouncement over the years. To the best of this writer's knowledge the highest judicial authority on this matter is the Court of Appeal decision in the case of Ogbeide vs. Osula {2004} 12 NWLR PART 886 where Adamu JCA, reading the lead judgment, states that-

'In other words, a person who is a citizen of Nigeria by birth cannot have such citizenship forfeited or become ineligible to contest such elections under any circumstances even where section 65(1) is read with section 137, a person who is not a citizen of Nigeria can be so registered, but where he is not a citizen of that other country by birth, his registration will be conditioned on the renunciation of his citizenship of that other other country.

In other words, renunciation of citizenship does not apply to a citizen of this country by birth...What one can make of that section read with sections 25, 26 and 27 of the Constitution is that a citizen of this country by birth never loses his citizenship even where he holds dual citizenship of another country and cannot be disqualified from contesting elections into the House of Representative for reasons only that he holds such dual citizenship.'

In the view of this writer, the Court's pronouncement and reasoning is clear and logical and cannot be controverted. This Court of Appeal decision has been followed by a Federal High Court sitting in Abuja in the case of Professor Odidi & Akeem Bello vs. INEC {Suit FHC/ABJ/CS/28/07}. In that case, the applicants had challenged the validity of the Independent National Electoral Commission {INEC} to disqualify the first two applicants, who were respectively the Presidential and Vice Presidential candidates of the New Democrats Party, from contesting the 2007 Presidential elections on the basis that because both of them held citizenship of Canada and America {respectively}, they stood disqualified from contesting the country's presidency by virtue of the provision of Section 137{1}{a}, of the Constitution. The Presiding Judge, Justice A.I Chikere quoted with approval the dictum of His Lordship, Adeniji JCA, in the Ogbeide case {supra} that

'A person who is a citizen of Nigeria by birth cannot have such citizenship forfeited or become ineligible to contest election under any circumstances even where section 65(1) in the present case is read together with section 137 of the 1999 Constitution'. His Lordship then directed INEC to register the two applicants to contest the 2007 election.

The jurisprudence in other countries and in international Courts also follows this line of reasoning. The most recent decision on the matter seems to be the decision of European Court of Human Rights in the case of Tanase and Chirtoaca v. Moldova, which the Court delivered on the 27 April 2010. In that case, the applicants, both Moldovan nationals had challenged a 2008 amendment to the Moldovan Constitution which barred Moldovans who held dual nationality from contesting for Parliamentary positions. The Grand Chamber of the Court held that the 2008 amendments were unlawful and disproportionate to any concern of loyalty the country may have. The Court held that-

'...in a democracy, loyalty to a State did not necessarily mean loyalty to the actual government of that State or to a particular political party. There were other methods available to the Moldovan Government to ensure loyalty of MPs to the nation, such as requiring them to take an oath. Such measures had been adopted by other European countries'.

It therefore seems settled that in Nigeria, having dual nationality will not preclude one from contesting elective positions. Having looked at the law, I should now briefly touch on why it is in any case in the best interest of the country not to place any restriction or hindrance on the rights of Nigerians with dual nationality to participate in elective politics. Immediately after independence, the trend in most African countries was to outlaw dual nationality and even the few countries that allowed it barred people with dual nationality from holding high political offices. The rationale for this was the perceived split in loyalty of such persons.

The argument then was that the loyalty and allegiance of people with dual nationality could not be guaranteed and governments then felt it prudent to disqualify this category of people from high political posts. Perhaps this argument had some merit in the 50s, 60s and 70s at the height of the Cold War. What is certain now though is that in these days and ages, the argument of split loyalty no longer hold water. Since the collapse of the Communist regimes and introduction of the Internet into the public domain, the old world order is changing very fast. For a number of reasons there is closer co-operations amongst nations leading to more integration as evidenced by the creation of such unions as the European Union; Organisation of American States; the African Union etc.

An inevitable consequence of such integration is that as people move from one country to another either for work, education or other reasons, they acquire the nationalities of new countries whilst retaining and maintaining contacts with their countries of birth. In most cases such people retain very strong affinity with their countries of birth as indicated by the huge monies repatriated by people in Diaspora to their various countries and the fact also that a very large number of these people ultimately return to settle in their countries of birth.

It is therefore preposterous to suggest that people in Diaspora have less loyalty to their countries of birth than their kits and kins who remained at home and as the Jamaican Prime Minister, Bruce Golding remarked earlier this year, the crucial point now is countries should "...recognise what is now a reality, that there are citizens of Jamaica who are citizens of other countries who manage their loyalties between the two and who consider themselves not to be 50 per cent Jamaican and 50 per cent American, but certainly 100 per cent Jamaican".

Indeed if anything, the loyalty and commitment of Diaspora Nigerians to the Nigerian Project sometimes borders on the obsessive. Anywhere in Europe, United Kingdom or North America where Nigerians are gathered, there is a very high probability that high on their agenda is discussion of the situation back at home.

A large portion of such Nigerians have also, in the course of their stay overseas, acquired considerable expertise in their countries of sojourn and it is simply very daft to disqualify those people from elective positions.

It is often said that the law is a living documents that reflects the current realities of a given state and, to adapt Maynard Keynes saying, when the circumstances change, then the law should be changed. It is difficult to see any sensible rationale for annulling the mandate given to a candidate who is otherwise an excellent candidate solely on the ground that such candidate holds dual nationality.

The law may sometime seem to be an ass, but thankfully on this matter, both the Constitution and its interpretations by the Court easily pass the common sense test.

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