Dust Over Dual Citizens’ Eligibility To Contest Election

Some senior lawyers have expressed divergent views on the legality of dual citizens’ participation in the nation’s electoral process. The lawyers while baring their minds on the issue at the weekend could not speak with one voice on the issue. While some said dual citizenship is not a ground to disqualify a candidate, others however opined that a dual citizen is not permitted to contest under the law.

The lawyers spoke against the backdrop of the raging allegations of dual citizenship against the President-elect, Bola Ahmed Tinubu. The social media had went agog with the dual citizenship allegations against the President-elect with some claiming that dual citizenship disqualifies him from the presidency based on the provisions of Section 137 of the 1999 Constitution.

The fresh controversy had started when an independent journalist, David Hundeyin, uploaded images of a Guinean diplomatic passport bearing “Bola Ahmed Tinubu” on his Twitter account. The passport which also carried Tinubu’s image was said to have been issued in October 2015.

It how- ever expired in October 2020. With the latest development, Tinubu was alleged to have committed perjury, having told the Independent National Electoral Commission (INEC) in his form EC-9, application to contest for the president, that he never obtained citizenship of another country.

He reportedly ticked “No” in response to a question; “Have you voluntarily acquired citizenship of any other country”, posed by INEC in the form. He also appended his signature on the form swearing that the information given on the form was “correct, true and to the best of my knowledge”.

While it may not amount to constitutional violations that Tinubu, who was born in Nigeria, carries dual nationality, he is expected to fight to extricate himself of perjury allegation. Litigations on dual citizenship controversy The question of whether or not a Nigerian who holds citizenship of another country is qualified to contest for political offices in Nigeria is not novel.

The question has been part of Nigeria’s political configuration, particularly since 1999 when democracy was enthroned in the country. New Telegraph Law recalled that on November 24, 2022, two superior courts of records sitting at separate locations have entered two contradictory decisions on a legal question bordering on the eligibility of Nigerians holding dual citizenship to vie for political offices in the country.

The decisions did not only threw the polity into confusion, but also portrayed the Nigerian judiciary as unpredictable. The two affected superior courts are the Federal High Court in Cala- bar, Cross River State presided over by Justice Rosemary Oghohorie and the Federal High Court, Port-Harcourt, Rivers State, presided over by Justice Emmanuel Obile.

The Federal High Court, Cala- bar, gave its decision in a suit with Registration Number FHC/CA/ CS//142/2022, filed by the PDP and its governorship candidate, Sandy Ojang Onor, challenging the eligibility of Senator Prince Otu and Peter Odey as governorship and deputy governorship candidates of their political party, the APC, respectively.

Specifically, the PDP and Onor, in their suit, requested the court to compel the Independent National Electoral Commission (INEC) to bar the duo of Senator Otu and Peter Odey from flying the flag of the APC in the 2023 gubernatorial election in the state. The PDP argued that Odey (the running mate of Otu) was not a duly registered member of the APC and is also holding dual citizenship, having sworn to an oath of allegiance to the United Kingdom (UK).

A prominent lawyer, Chief Mike Ozekhome (SAN), settled the brief of the APC together with its gubernatorial candidate, Senator Otu and his running mate, Peter Odey. After the court heard the case, the trial judge, Rosemary Oghohorie, in her judgement held that the uncontroverted evidence before the court clearly showed that Peter Odey was duly registered in his ward as a member of the APC, even as the court agreed with Ozekhome on the second vexed issue of dual citizenship that Peter Odey, from the evidence before the court, is a citizen of Nigeria by birth and therefore, his citizenship of the UK could not vitiate his eligibility to contest for the office of the Deputy Governor of Cross River State.

The court, therefore, concluded that the suit of the plaintiffs was devoid of any merit whatsoever and accordingly dismissed same. By the said judgement, Senator Otu and Odey were the validly nominated candidates of the APC to contest the high offices of governor and deputy governor of the state in the 2023 governorship election.

The decision was handed down on November 24, 2022. But in the second case with similar facts, the same PDP had filed a suit at the Federal High Court in Port Harcourt asking it to direct INEC not to recognize a 1967-born businessman and governorship candidate of the APC in the state, Tonye Cole, over alleged dual citizenship and non-compliance with the Electoral Act by his party.

The case also went on trial while decision was entered on November 24, 2022. In the ruling delivered in the matter, Justice Emmanuel Obile agreed with the state PDP that the APC gubernatorial candidate, Cole, who holds dual citizenship, was not eligible to contest governorship position on the account that he was so barred by the constitution.

However, as far back as 2004, a similar case between Dr. Willie Ogebide and Mr. Arigbe Osula (2004) reported in 12 NWLR Part 886 page 138 paras C-E had travelled from the High Court to the Court of Appeal, where the panel of Justices led by Justice Walter Onnoghen held that a citizen of Nigeria by birth is not disqualified in law from seeking elective offices in the country, even when such person has voluntarily acquired the citizenship of another country as done by Peter Odey in the Calabar case and Cole in the Port- Harcourt case.

Indeed, Justice Onnoghen in the judgement which remains the locus classicus on such matter held: “… it is clear and I, hereby, hold that the acquisition of dual citizenship by a Nigerian per se is not a ground for disqualification for election to the National Assembly, particularly where the Nigerian citizen is a citizen by birth. That is the clear meaning of the provisions in Sections 66(1) and 28 of the 1999 constitution when taken together.

“The only Nigerian citizen disqualified by the said sections is one who is a citizen of Nigeria by either registration or naturalization, who subsequently acquires the citizenship of another country in addition to his Nigerian citizenship…” Justice Onnoghen (JCA) as he then was had further explained, “… When a Nigerian by naturalization or registration acquires the citizenship of another country, he loses his right as a naturalized Nigeria. Such a person would not be able to contest any election into any elective office in Nigeria”.

Lawyers speak In his submissions, a former Attorney-General of the Federation (AGF) and Minister of Justice, Michael Aondoakaa (SAN), said that having dual citizenship does not disqualify anyone who is a Nigerian by birth from contesting elections in the country. He stressed that dual citizenship could only disqualify a person who obtained such status by naturalisation or registration.

The former AGF noted that the complainants must first establish that Tinubu was not a Nigerian by birth before dual citizenship could become an issue. “But assuming it was in the petition, the position of the law is that a person who has dual citizenship by naturalisation or registration cannot contest for president in Nigeria. “But a person who is born in Nigeria and acquired citizenship in another country has the right to contest an election.

It would be strange to say that the winner of the election, Tinubu, has the citizenship of another country. ‘’You must prove first that he is not a Nigerian by birth. That is the first challenge and if you can prove that, then you can bring up the issue of acquiring another citizenship”, Aondoakaa said.

In his own reaction, Prof Awa Kalu (SAN), admitted that though there has been an issue with the interpretation of certain provision of the constitution relating to dual citizenship as it affects eligibility for election, yet, the Court of Appeal has doused any tension created by the problems of interpretation of the said constitutional provisions.

According to him, “Irrefutably, the provisions of the Constitution as to qualification of candidates for general election in Nigeria is the same with regards to Presidential, Vice Presidential, Governorship, Deputy Governorship, as well as Legislative Houses. “For example, Section 177 of the Constitution clearly provides that a person shall be qualified to contest for the election to the office of governor of a State if he is a citizen of Nigeria by birth.

“What this means is that if you acquired a citizenship of Nigeria by means other than by birth, then you are not eligible for such a contest. “Conversely, by virtue of Section 182 (1) (a) of the Constitution, no person shall be qualified for election to the office of governor of a State 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 may be prescribed by National Assembly, he has made a declaration of allegiance to such other country.

“There is no doubt that contrary to the clear terms of Section 177, Section 182 (1) has raised problems of interpretation particularly, at High Court levels. “Happily, the Court of Appeal has established some stability in the determination of the question to the effect that a person does not inexorably become ineligible to contest an election simply because he is a dual citizen, especially if he is a citizen of Nigeria by birth. See for example Peoples Democratic Party & Anor. vs Independent National Electoral Commission & 2 Ors. (2012) LPELR-8409 (CA) following Ogiede vs Osula (2004) 12 NWLR (Pt.886) Pg. 127.”

On his part, an Abuja-based lawyer, Bright Enado, while reacting, said: “One of the chapters of the Nigerian Constitution contains eight Sections dedicated to issues of citizenship. Specifically, Section 28 of the Constitution of Nigeria is on issues of dual citizenship.

Also, many other sections in the constitution refer to citizenship as a condition for certain rights and privileges. “Among the sections that refer to Section 28 of the Constitution (that is, relating to dual citizenship) are sections relating to disqualification/requirements for persons to be elected into offices at federal and state levels.

“The specific sections are Section 66 of the constitution which is on disqualification/requirement for election into the National Assembly (the House of Representatives and the Senate); Section 107 of the constitution which is on disqualification/requirement for election into the House of Assembly in any state in Nigeria; Section 137 of the constitution which is on disqualification/ requirement for election of the President of Nigeria and section 142 for Vice-President of Nigeria; and Section 182 of the constitution which is on disqualification/requirement for election of the Governors and section 187 for Deputy-Governors in states in Nigeria.

“All the above sections make citizenship a requirement for any person to be elected into legislative or executive office in Nigeria. The sections of the constitution cited above refer readers back to Section 28 of the constitution. “The first requirement to be qualified to be President of Nigeria and for some elective positions is that the candidate must be a citizen by birth.

However, there is a section of the constitution which appears to provide that dual citizens are exempted from becoming Nigerian Presidents. Section 137 paragraph (a) of the Constitution provides that subject to the provision of Section 28 of this Constitution, anyone who voluntarily acquired the citizenship of a country other than Nigeria or, except in such a case as may be prescribed by the National Assembly, has made a declaration of allegiance to such other country.

“It should be noted that for a dual citizen to be disqualified, he must have voluntarily acquired citizenship of another country. “Also, Section 28 goes on to make the disqualification of a dual citizen subject to Section 28 of the Constitution. Section 28 (1) talks about individuals who acquire Nigerian citizenship (by means other than birth) and go on to acquire or retain citizenship of another country (acquired other than by birth), such individuals shall forfeit Nigerian citizenship or shall renounce Nigerian citizenship.

“In simple terms, Section 28 says that individuals who are disqualified from holding dual citizenship in Nigeria, are those who have citizenship of another country, which was obtained by either naturalisation or registration and then seek to acquire a form of Nigerian citizenship (and that form is by registration or naturalisation) and vice versa.

“That individual has to renounce the citizenship that he held prior to the application for Nigerian citizenship, (if he is not a citizen by birth) or lose his Nigerian citizenship when he wants to obtain citizenship in another country. “In other words, only citizens by birth can acquire citizenship of another country and they are not required to renounce their Nigerian citizenship except that other country requires such renunciation.

“Therefore, Section 137 of the constitution seems redundant because citizens who acquired citizenship by naturalisation or registration (which it refers to) can never be President as the first requirement for candidates for the presidency as contained in Section 131 of the constitution is that such a person must be a citizen by birth. The above discussed requirement for the presidency has not been tested by Nigerian courts.

“However, there have been issues relating to dual citizenship of candidates for the National Assembly. These issues came up in Anthony George Ikoli v. Ben Murray Bruce and Willie Ogbeide v. Arigbe Osula & ors. “It should be noted that the constitutional requirements discussed above for an aspirant to the presidency are almost the same as that of an aspirant to the National Assembly. The only difference is that the aspirant has to be only a Nigerian citizen; there is no mention of the type of citizen”.

In his comments, Onyekachi Umah said: “the six Sections of the 1999 Constitution that make reference to Section 28 include Section 66 of the constitution which is on disqualification/requirement for election into National Assembly (the House of Representatives and the Senate); Section 107 of the constitution which is on disqualification/requirement for election into the House of Assembly in any state in Nigeria; Section 137 of the constitution which is on disqualification/ requirement for election of the President of Nigeria and Section 142 for Vice-President of Nigeria.

“Others are; Section 182 of the Constitution which is on disqualification/requirement for election of the governors and Section 187 for Deputy-Governors in states in Nigeria. “The Court of Appeal, had a couple of times, pronounced on the various constitutional provisions as they affect the eligibility of candidates with dual citizenship”.