The Right of Dual Citizens to Hold Political Offices in Nigeria: A Different Perspective – Elvis Asia

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Introduction

The question whether or not a Nigerian who holds the citizenship of another country is qualified to contest for political offices in Nigeria is not novel. The question has been part of our political configuration particularly since 1999 when Nigeria left the shackles of the military. The Court of Appeal attempted to put paid to this vexed question in the case of Ogbeide v. Osula[1] when it held that a Nigerian citizen by birth cannot become ineligible for political office. However, recent developments suggest that this question is far from answered especially given the penchant of politicians to hang on the slightest defect in their opponent’s background.

Recently, the Election Petition Tribunal in Osun State was reported to have ousted the Peoples Democratic Party (PDP) Senatorial candidate on the basis of dual citizenship[2]. The decision has been criticized in the media on the premise that it is contrary to established Court of Appeal decisions on the issue. This article therefore takes a second look at the Court of Appeal decisions and formulates a different perspective on the issue.

The Popular View

The popular view is that a Nigerian citizen by birth cannot be disqualified from holding political offices. This position finds expression in the case of Ogbeide v Osula[3] where the court of appeal[4] held as follows:

“The tribunal however held on page 121 paragraph 2 of the record that a Nigerian citizen by birth even though does not forfeit his Nigerian citizenship by his acquisition as the citizen of another country, he would   stand disqualified from being a member of the National Assembly if he holds such citizenship or has subscribed to oath of allegiance to any other country. That I must say with due respect, is not contained in the section under scrutiny. What one can make of that section read with sections 25,26 and 27 of the 199 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 election into the House of Representative for reasons only that he holds such dual citizenship. The lower tribunal therefore misled itself in that regard and the answer to          issue No. 4 is that section 66(1) of the 1999 constitution does not prohibit Nigerian citizens by birth from holding   the citizenship of another country and from contesting election to being   a member of the National Assembly.”

Ogbeide’s was referred to in PDP v INEC[5] with approval. Mshelia JCA who delivered the judgment held that:

”…As decided in the case of Ogbeide vs. Osula (supra) that dual citizenship does not make a candidate ineligible to contest an election if he is a Nigerian citizen by birth. The complaint of the appellants is therefore unfounded.  In the circumstances I hold that appellants have failed to substantiate their complaints under issues 4 and 5. Accordingly issues 4 and 5 are resolved in favour of the respondents”.

The scope and limitation of Ogbeide and PDP cases

Contrary to popular perception, the Ogbeide and PDP cases are not conclusive authorities on the issue. The Court of Appeal decisions are limited to the peculiar circumstances considered in the cases. What is clear from a forensic review of the cases is that the primary bases for the decisions were that there was no proof of the allegations of dual citizenship.

In Ogbeide’s case for example, one of the grounds of the Appellant’s petition was that the 1st Respondent was not qualified to contest as member of the National Assembly because he holds a dual citizenship. The only evidence of the dual citizenship was that the 1st Respondent incorporated a company in the United States. The 1st Respondent however averred that he has never renounced his Nigerian citizenship by birth and that all a foreign national require in incorporating a company in the United States was permanent residence and not citizenship. The court found that the evidence of dual citizenship was hearsay. At page 116 of the judgment Adeniji JCA alluded to the insufficiency of the evidence adduced to prove dual citizenship as follows:

”…The proof was based on the ipse dixir of the appellant who in fact could not give the source of his information; neither did he give the place and date of issuance of the passport, the nature of the company allegedly formed by the 1st respondent in the USA or the facts of renunciation by 1st respondent of his Nigerian citizenship ….”

Section 66 of the constitution which was in issue in Ogbeide’s was not given any serious thought in the case. At page 126- 127, the court noted that it needed to make clarification on the issue of dual citizenship after deciding the matter on the basis of evidence. In doing so, the court referred to the decision of the tribunal, quoted section 65 of the Constitution and made a perfunctory reference to section 66. After quoting section 28(1) of the Constitution, it concluded without any rationalization that a person who is a citizen by birth cannot have his citizenship forfeited or become ineligible to contest elections. Onnoghen JCA in his concurring judgment attempted to provide a more expansive interpretation of section 66 but as we shall see in the later part of this write up, the explanation provided is inconsistent with the effect of section 66 and other similar provisions.

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The same trend repeated itself in PDP v.Inec[6]. It is difficult to appreciate the essence of the reference to Ogbeide’s case when one considers the dismissive manner in which the issue was dealt with by the Court of Appeal. Indeed, the main plank on which the decision rested was that there was lack of evidence to substantiate the allegation of dual citizenship. The reference to Ogbeide’s case was therefore irrelevant to the determination of the issue placed before the court. Mshelia JCA had held before the reference to Ogbeide’s case that:

“….The application of section 66(1)(a) of the 1999 constitution can only become relevant if appellants had established by credible and cogent evidence that 2nd appellant took Oath of Allegiance to the United States of America”.

From the above, the view of the Court of Appeal on the issue of dual citizenship therefore may be said to be obita since it was not the fundamental premise of the decision. This perhaps explains why the court did not give the issue the serious analysis it deserved. It is submitted that in a case where dual citizenship is established, the Court may re-open the issue to determine the real essence of the relevant provisions of the Constitution as it relates to the eligibility of a dual citizen to contest an election.

A different perspective on the issue

To appreciate the succeeding arguments, it is important to understand the various categories of citizenship and dual citizenship. Under Nigerian law, citizenship can be acquired by birth[7], registration[8] and naturalisation[9]. Also a Nigerian can acquire dual citizenship by birth in another country[10] or by naturalisation. Under our law, only a Nigerian citizen by birth and citizens of other countries by birth can be dual Nigerian citizens[11].

The constitutional bar against Nigerians who subsequently acquire the citizenship of other countries can be found in sections 66 (1), 137 (1)[12] and 182 (1)[13]. The sections are similar. Section 66(1)(a) of the constitution will be reproduced here because it has been the subject of the Court of Appeal decisions on the matter. The section provides as follows:

“No person shall be qualified for election to the Senate or House of Representatives if; subject to the provision of section 28 of this constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or except in such cases as…”

From the provision, it is clear that a Nigerian citizen by birth (whose parents and grandparents are Nigerian citizens) who is a citizen of another country by birth is not caught by this section[14]. This is because the section expressly refers to those who voluntarily acquire another citizenship and swear an oath of allegiance to that other country. Citizenship by birth is not voluntary and there is no requirement for swearing oath of allegiance. So for this category, dual citizenship will not deprive them of the right to hold political offices.

Section 66 and other similar provisions cannot in any event apply to Nigerian citizens by naturalisation or registration contrary to the decision of Onnoghen JCA (as he then was) in Ogbeide’s case. The reason is that a Nigerian citizen by naturalisation or registration who subsequently swears oath of allegiance to another country loses his citizenship under section 28. Therefore, such a person is not qualified under section 65 which makes it mandatory that only a citizen can aspire to that office. A person must first scale the hurdle of citizenship in section 65 before consideration of the disqualification in section 66. A naturalized or registered citizen who subsequently acquires the citizenship of another country is not a citizen of Nigeria under sections 65 and 66.

Therefore, the constitutional bar in section 66 can only refer to citizens by birth who subsequently become citizens of other countries by naturalisation or registration in respect of which they would necessarily swear an oath of allegiance.  This position is strengthened by the fact that only a Nigerian citizen by birth can subsequently voluntarily acquire the citizenship of another country. A Nigerian citizen by any other definition cannot acquire the citizenship of another country and still remain a citizen.

From a combined reading of section 66 and 28, there is nothing in the Constitution which supports a general conclusion that a Nigerian citizen by birth is not affected by section 66. That interpretation limits the Constitution and renders it nugatory and void.  If the section does not apply to a citizen by birth, then it cannot apply to anyone. It cannot even apply to a registered or naturalised citizen who is a citizen of another country by birth because he/she has not voluntarily sworn to an oath of allegiance to another country and his citizenship is protected by section 28[15].

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The law is trite that the constitution must be interpreted broadly to give effect to intention of the makers of the constitution[16]. Where the provisions of the constitution are not clear, the court must ensure that the object and true intent of the Constitution are preserved[17]. The popular view suggests that section 66 and other provisions on limitation of political office in the constitution are worthless provisions because the sections cannot be given effect to in any other circumstance. This is incompatible with the essence of the constitutional restriction. An interpretation which renders the provision a mere decorative statement in the constitution fails to consider the political significance under international politics and law and is against the spirit of the constitution. If the intention of the makers of the constitution was to exclude citizens by birth from political limitation under section 66, they would have said so expressly.

The spirit behind the requirement is the promotion of loyalty to the Nigerian state and Nationalism. Imagine a Nigerian senate president who swore an oath of allegiance in say United Sates of America. When the law requires, he can be conscripted into the American army when he visits the country. Of course that may be extreme but this is the essence of such limitation. What about during the time of war? As a Nigerian and an American for example, which country would the President or Senator be loyal to during the time of war? A person who holds a political office is expected to be 100% loyal to the country. Swearing allegiance to another country takes away that important element of loyalty.

A proper consideration of the nature and legal effect of the Oath of Allegiance normally sworn to would show that the constitutional limitation is not an unproductive fig tree. In the US for example, the Oath compels the person to renounce other citizenship. It reads:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform non-combatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

It is submitted that section 28 does not in any away exempt citizens by birth from the effect of the limitation on political offices.  What the section provides is that citizenship by birth cannot be forfeited on account of the citizen’s acquisition of the citizenship of another country. What appears to be the fundamental error in the popular argument is the suggestion that a citizen by birth cannot be denied any right or that denial of political participation under section 66 amounts to forfeiture of citizenship under section 28. This is not true. The constitution defines citizenship and the rights that inures to it. In Australia for example, a citizen by birth who refuses to renounce any other citizenship is not entitled to contest for political offices[18] and there are many other countries with similar restrictions[19].

The main arsenal in the armoury of the popular position is that section 66 and other similar sections are subject to section 28. However, the principle that when a section of an enactment is subject to another provision, the section must be read to be in conformity with the provision is only relevant when there is conflict between the two provisions[20]. There is no conflict between the provisions. What exactly does section 28 say that is in conflict? The section says a Nigerian citizen by birth cannot lose his citizenship. It has nothing to do with qualification for election. The equation of qualification to forfeiture of citizenship resulted in the popular view. That a person is disqualified from holding a particular office cannot by any figment of the imagination amount to loosing ones citizenship. The only relevance of section 28 in the circumstances may be that disqualification under section 66 cannot amount to forfeiture of citizenship which is guaranteed under the section.

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As already noted, it is not a strange phenomenon for a citizen to be disqualified from contesting an election on account of retention of the citizenship of another country. Take for example the qualification requirements for the position of President and Governor. The constitution requires that to be eligible to contest those offices, the person must be a Nigerian citizen by birth[21]. Yet, sections 137 (1) and 182 (1) respectively provide that the person is disqualified upon acquisition of the citizenship of another country. Invariably, the section can only refer to a Nigerian citizen by birth who is disqualified upon acquisition of another citizenship to contest as president or governor. It will be illogical to argue that a Nigerian citizen by birth is exempted under sections 137 (1) and 182 (1) because the sections are made subject to section 28 which guarantees citizenship by birth from forfeiture. The provisions are the same with section 66 (1) and attracts the same interpretation. The only difference is that a Nigerian citizen by whatever means, whether by birth or otherwise, is disqualified from contesting on account of any voluntary acquisition of the citizenship of another country under section 66 (1).

Conclusion

The current decision of the Court of Appeal is that a Nigerian citizen by birth cannot be disqualified for election to the National Assembly on account of voluntary acquisition of the citizenship of another country. However, the decision did not give the issue the deserving jurisprudential analysis and is open to challenge.

The position canvassed in this article is that disqualification for political offices in Nigeria applies to Nigerian citizens by birth who subsequently swears an oath of allegiance to another country. Only a dual citizen by birth in both countries and a registered/naturalized citizen who is a citizen by birth in another country are exempted from the restriction under section 66 (1) of the Constitution. For the position of President and Governor, there is no argument that a citizen by birth who voluntarily acquire the citizenship of another country loses the right to vie for the offices. This perspective is in tandem with the spirit of the 1999 Constitution and is consistent with philosophical underpinning of the limitation of political offices to citizens with undivided loyalty in many countries.

Whichever way the issue is viewed however, it is important that in the nearest future when the opportunity arises, the appellate courts gives the issue a well deserved consideration beyond the perfunctory attempt in the Ogbeide and PDP cases[22].

Elvis Asia is a Senior Counsel in Nigeria and can be contacted on: 09072546246, elvis.easia@gmail.com.

Foot notes:

[1] (2004) 12 NWLR (886)  86

[2] https://punchng.com/dual-citizenship-senate-president-speaker-risk-losing-seats/

[3] supra

[4] Adeniji JCA at 127 paras D-G.

[5] (2012) LPELR-8409(CA)

[6] supra

[7] Section 25 of the Constitution

[8] Section 26

[9] Section 27

[10] This will be the case where a person whose parents and grandparents are Nigerian citizens by birth is given birth to in a foreign country which vest him with citizenship like it is in the United States of America.

[11] Shugaba v Minister of Internal Affairs &Ors [1981] 2NCLE 459.

[12] Qualification to contest for the office of governor.

[13] Qualification to contest for the office of the president

[14] Citizenship by birth both in Nigeria and another country is possible because under section 25 (1) (a) of the 1999 Constitution, every person born outside Nigeria either of whose parents is a citizen of Nigeria is a Nigerian citizen by birth. Citizenship by birth is therefore not a matter of the location of the hospital where someone was born.

[15] The argument in some quarters that only a Nigerian citizen by birth can occupy political office is not borne out of the Constitution.  A registered or naturalized citizen who is a citizen of another country by birth is eligible to contest except for presidency and governorship.

[16] See BRIG. GENERAL MOHAMMED BUBA MARWA & ORS V. ADMIRAL MURTALA NYAKO & ORS [2012] LPELR –SC 141/2011 or (2012) 1 SC (Pt. III), GLOBAL EXCELLENCE COMMUNICATIONS LIMITED & ORS V. MR. DONALD DUKE (2007) LPELR-1323(SC)

[17] Ehioze Egharevba v. Hon Crosby Osadolor Eribo & ors [2010] 9 NWLR (Pt.1199) 411 SC and FRN v. ACHIDA & ANOR (2018) LPELR-46065(CA)

[18]https://www.aph.gov.au/About_Parliament/House_of_Representatives/Powers_practice_and_procedure/Practice7/HTML/Chapter5/Qualifications_and_disqualifications

[19] https://en.m.wikipedia.org/wiki/List_of_presidential_qualifications_by_country

[20] See BALONWU & ORS. v. GOVERNOR OF ANAMBRA STATE & ORS (2009) LPELR-729(SC)

[21] See sections 131 (a) and 177 (a)

[22] In view of the constitutional importance of the issue, a full panel of either the Court of Appeal or the Supreme Court should decide the point ones and for all. The decision of a full panel of either court carries more weight. See Bogoro Local Government Council vs Kyauta (2017) LPELR 43296(CA) and FRN v. ACHIDA & ANOR (2018) LPELR-46065(CA).

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