By. Pelumi Olajengbesi Esq.
The Ondo State Elections Petition Tribunal (hereinafter referred
to as The Tribunal) recently delivered a ruling, which appears to
threaten not just the election of Mr. Ikengboju Gboluga
(hereinafter referred to as Hon. Gboluga) but also that of the
Senate-President, Mr. Ahmed Lawan and his counterpart in the Lower
Federal Legislative Chamber, the Speaker of the House of
Representatives Mr. Femi Gbajabiamila.
The decision has laid down a precedent, which packs novel
judicial punch and would surely stir up jurisprudential examination
to determine its constitutionality or lack thereof.
Before I proceed further, let it be noted that I am yet to fully
read and review the full judgment; hence my position is
contextually not infallible. However, the report of Punch Newspaper
on the decision of the Tribunal contains an excerpt that points to
the ratio decidendi for stripping Hon. Gboluga of his electoral
victory and would thus form the basis of my legal elucidation on
the matter.
Facts Matrix:
The Tribunal, basing its position on Section 66 of the Constitution
of the Federal Republic of Nigeria, 1999, as amended (hereinafter
referred to as the Constitution), ruled, inter alia, that Mr.
Gboluga of the PDP had voluntarily obtained the citizenship of
another country, i.e., he possessed dual citizenship, and was thus
ineligible to hold public office in Nigeria. The tribunal went on
to direct that his opponent in the All Progressive Congress, Mr.
Albert Akintoye, who had the next highest votes, be sworn-in in his
stead as member representing Okitipupa/Irele Federal Constituency,
Ondo State, at the House of Representatives.
The position and ruling of the learned judges of the Tribunal
sets a precedent, which if upheld is indistinguishable, thus
adversely applicable, in the instance of other holders of dual
citizenships who have been elected into several political positions
in the country. Notable amongst those likely to be affected include
Senator Ahmed Lawan and Hon. Femi Gbajabiamila.
With due respect to the tribunal judges, I would attempt to
subject their ruling to the broader purpose of the law and examine
the same in the light of its substance as well as its
applicability. I would also attempt to prove its
unconstitutionality and show why the said ruling cannot be
sustained on appeal.
Citizenship Under Nigeria Law:
Chapter III of the Constitution, particularly from Sections 25-27,
establishes that a person can become a citizen of Nigeria by:
1. Birth- where one or both parents are Nigerians regardless
whether such a person is born in Nigeria or not.
2. Registration,
3. Naturalization- the last two means of acquiring Nigerian
Citizenship are based on proof of good behavior, good intentions,
desirous of same, of full age and haven sworn an Oath of Allegiance
to Nigeria.
Section 28 of the Constitution, goes on to treat the issue of
dual citizenship and states as follows-
(1) 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.
(2) Any registration of a person as a citizen of Nigeria or the
grant of a certificate of naturalization to a person who is a
citizen of a country other than Nigeria at the time of such
registration or grant shall, if he is not a citizen by birth of
that other country, be conditional upon effective renunciation of
the citizenship or nationality of that other country within a
period of not more than five months from the date of such
registration or grant.
For our purposes, the first limb of the provisions of Section 28
of the Constitution would serve, a paraphrase of which would be – a
citizen of Nigeria by birth may peacefully enjoy dual citizenship,
but a citizen of Nigeria by registration or naturalization may have
to forfeit their Nigerian citizenship. Ancillary thereto,
sub-section (2) of the said section, goes on to say that a
non-Nigerian by birth who seeks to be a Nigerian by registration or
naturalization would only be granted that right if such a person
does not hold a citizenship of another country through registration
or naturalization.
To illustrate, if Mr. A is a Nigerian by birth, then Mr. A may
go on and hold the citizenship of another country without his
Nigerian citizenship being called into question or affected.
However, if Mr. A is not a Nigerian by birth, and seeks to become
one by registration or naturalization, he must make sure he is not
registered or naturalized as a citizen of another country other
than his country of birth.
Citizenship For the Purpose of an Election:
QUALIFICATIONS
Given the case under reference, Section 65(1)(b) of the
Constitution, would suffice as reproduced below-
A personal would be qualified as member of –
(b) the House of Representatives, if he is a citizen of Nigeria and
has attained the age of 30.
DISQUALIFICATIONS
However, the provisions of the following section sets out grounds
for the disqualification of a candidate contesting for the position
of a member of the House of Representatives thus-
66. (1) No person shall be qualified for election to the Senate or
the House of Representatives if: (a) subject to the provisions of
Section 28 of the 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;
Curiously, the decision of the Tribunal to disqualify Hon.
Gboluga is based on Section 66 of the Constitution; making future
comment on this section is sacrosanct.
When a legal provision starts with the phrase “subject to” or
any other related clauses, it means that the section is to be read
subject (in tandem) with the section indicated.
For the purposes of this opinion, it is clear from the above
provisions that Sections 66 (1) of the Constitution as it relates
to a seat in the National Assembly (House of Representatives) is
subject to the provisions of Section 28 of the Constitution.
As earlier established, a Nigerian by birth – one who has a
single or both parents who are Nigerians, is allowed to hold dual
citizenship without encumbrances as contained above in Section
25(1) (a)-(c) of the Constitution. The only instance in which
forfeiture of citizenship is allowed under the Constitution is by
holders of: (i) citizenship by registration under Section 26 of the
Constitution; and (ii) citizenship by naturalization, under section
27 of the Constitution.
Issues to be Determination:
Issue One:
Having regards to the entire facts of the case under reference,
whether Hon. Gboluga is a Nigerian by birth?
Issue Two:
In view of issue 1 above, whether the qualifications of Hon.
Gboluga can be challenged by a question of his citizenship?
Issue One:
I believe this issue treats itself succinctly as no doubt exists as
to the citizenship of Hon. Gboluga as a Nigerian by birth.
Issue Two:
This issue has been treated in due course above, thus, Hon.
Gboluga, being a Nigerian by birth and subject to Section 25, 65
and 66 of the Constitution, may in fact hold dual citizenship while
within his rights to contest for office in any position in Nigeria
provided other qualifications other than his citizenship are
met.
Therefore, as a citizen by birth who by constitutional law is
permitted to hold and enjoy dual citizenship, were the learned
judges on all fours with the law to withdraw his electoral victory
on the basis of Section 66 of the Constitution, which is itself
brought subject to Section 28 of the same law? I think not.
Conclusion:
It is my considered opinion that a Nigerian by Birth can retain,
and maintain dual citizenship for the purposes of seeking any
elective office(s) in Nigeria till date, subject to any amendment
to the Constitution or any new legislation passed by the National
Assembly to the contrary.
The Tribunal erred in its final judgment as the same is clearly at
variance with our extant laws. It is in itself a deprivation of the
rights of Hon. Gboluga, a Nigerian to seek an elective office and
hold the same peaceably when won.
Pelumi Olajengbesi Esq. is the Principal Partner at Pelumi
Olajengbesi & Co. Law Corridor and the Convener of Coalition of
Public Interests Lawyers and Advocates, COPA.