Can a Nigerian with Dual Citizenship be Prevented from Contesting an Election? -By Agboola Osabia

In the freshly concluded election in Nigeria, Mr. Ikengbolu Gbolugi a member of the PDP representing the Irele/Okitipupa Federal constituency in Ondo State, won a seat to the House of Representatives in one of the two chambers of the National Assembly. Recently, the National Assembly Election Tribunal disqualified Mr. Gbolugi on the grounds that he voluntarily acquired the citizenship of the United Kingdom (UK) and has thereby given his allegiance to the British crown. The question is can a Nigerian with dual citizenship be prevented from contesting an election?

This essay will not focus on the trial and the Tribunal’s judgement as I am not privy to the tribunal’s deliberations and judgement, but will focus on the 1999 constitution of the Federal Republic of Nigeria as amended which is the grundnorm of the Nigerian legal system in order to ascertain whether the Tribunal erred in Law when Mr. Gbolugi was disqualified.

All the provisions or sections of the constitution that will appear in this essay will be referenced because statistics suggest that over 80% of the populace have not come in contact with a copy of the constitution, and half of those in possession are not well acquainted with the contents of the document, and their copies of the constitution have been left to gather dust. The referenced parts of the constitution will be highlighted because it is integral for readers to retain their intellectual independence, rather than have them surrender it to legal practitioners; especially law professors and senior advocates who may misinterpret the constitution especially where party politics is in play. Politics and religion are two ideologies that can erode a person’s intellect and leave them in a state of comatose when they are simply starved of knowledge. As with any viral news story, a social media buzz will always accompany the issue, but one should be well informed before partaking in the discourse, and in this instance, the best reference source is the constitution. One does not have to study law to be deft and literate in understanding the mechanisms of law and politics, the main requirement is an appetite for research and learning.

A key mistake often made by legal practitioners and scholars when interpreting a provision or section of the constitution, is when it is treated in isolation rather than as a whole since many provisions and sections are interwoven. The omission and/or addition of the constitution’s words made by legal practitioners and scholars alike leave room for misinterpretation and miscommunication. For instance, where a provision states “all members”, this should not be treated as “members” and vice versa. The inclusion of the pronoun “all” is used to represent every single member, rather than a smaller portion of the membership. If the constitution is misread and miscommunicated by those with legal education, then this incorrect knowledge is passed down to the wider populace. Those without access to the contents of the constitution are therefore ill-informed and political errors are made as with the case of Gbolugi’s disqualification.

Mr. Gbolugi was disqualified on the grounds that he contravened the provision herein section 66 (1)(a) of the 1999 constitution as amended, as he contested for the National Assembly Election. If Mr. Gbolugi had contested the State Assembly election, he would have been found to have contravened section 107 (1)(a); for governorship election section 182 (1)(a) and the presidency section 137 (1)(a). All these sections deal with the disqualification of a Nigerian with dual citizenship. For the purpose of this essay, emphasis will be focused on section 66 (1)(a).

As aforesaid, some of the sections are interwoven either directly or indirectly so I will explain every related provision or section before concluding whether the Tribunal erred in law in passing its judgement against Mr. Gbolugi.

There are three issues to be considered here namely citizenship, dual citizenship and disqualification.

Citizenship

Section 25

1. The following persons are citizens of Nigeria by birth namely-

a. every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria:

Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria;

b. every person born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and

c. every person born outside Nigeria either of whose parents is a citizen of Nigeria.

2. In this section, “the date of independence” means the 1st day of October 1960.

Section 26

1. Subject to the provisions of section 28 of this Constitution, a person to whom the provisions of this section apply may be registered as a citizen of Nigeria, if the President is satisfied that

a. he is a person of good character;

b. he has shown a clear intention of his desire to be domiciled in Nigeria; and

c. he has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution.

2. The provisions of this section shall apply to

a. any woman who is or has been married to a citizen of Nigeria; or

b. every person of full age and capacity born outside Nigeria any of whose grandparents is a citizen of Nigeria.

Section 27

1. Subject to the provisions of section 28 of this Constitution, any person who is qualified in accordance with the provisions of this section may apply to the President for the same of a certificate of naturalisation.

2. No person shall be qualified to apply for the grant of a certificate or naturalisation, unless he satisfies the President that

a. he is a person of full age and capacity;

b. he is a person of good character;

c. he has shown a clear intention of his desire to be domiciled in Nigeria;

d. he is, in the opinion of the Governor of the State where he is or he proposes to be resident, acceptable to the local community in which he is to live permanently, and has been assimilated into the way of life of Nigerians in that part of the Federation;

e. he is a person who has made or is capable of making useful contribution to the advancement; progress and well-being of Nigeria;

f. he has taken the Oath of Allegiance prescribed in the Seventh Schedule to this Constitution; and

g. he has, immediately preceding the date of his application, either

i. resided in Nigeria for a continuous period of fifteen years; or

ii. resided in Nigeria continuously for a period of twelve months, and during the period of twenty years immediately preceding that period of twelve months has resided in Nigeria for periods amounting in the aggregate to not less than fifteen years.

Dual Citizenship

Section 28

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 naturalisation 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.

Disqualification

Section 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 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;

Before I delve into sections 28 and 66 (1)(a), I will give a brief scenario of a Nigerian who acquires their citizenship under section 26 or 27. Elliot is a Ghanaian by birth who came to Nigeria and he made his application for naturalisation under section 27 and having satisfied the conditions therein sections 27 and 28, was granted a Nigerian citizenship. A few years later he migrated to the UK. After a few years in the UK, Elliot applied for naturalisation and was granted one. He was not a citizen at this point, but when he later took the oath of allegiance to the British crown, he became a British citizen. Legally, Elliot had forfeited his Nigerian citizenship the very day he made the oath of allegiance to the crown. It is irrelevant whether the Nigerian government is aware of Elliot’s British citizenship.

Before a person can contravene section 66 (1)(a), they must first be in breach of section 28 as these two sections are interwoven. These two sections operate in tandem. It must be illustrated that at this juncture section 66 (1)(a) is not meant to enforce the revocation or deprivation of a Nigerian citizenship but rather to prevent non-Nigerians from participating in an election to the national assembly. Section 66 (1)(a) cannot operate severally, it can only operate jointly with section 28. So therefore, if a person is not subjected to the conditionalities in section 28, they cannot be in breach of section 66 (1)(a). So, for a Nigerian to be in breach of section 66 (1)(a) they must have acquired their citizenship by registration or naturalisation and then have breached section 28 and in effect forfeited it as seen in the story of Elliot. If Elliot had contested the seat to the House of Representatives, the law would have treated him as a foreigner who sabotaged the political process and he would rightly be adjudged to be in breach of section 66 (1)(a) as he was subjected to section 28 through his citizenship by naturalization.

When you look at these various ways of acquiring a Nigerian citizenship, citizenship under section 25 is absolute. This group are not subjected to the conditions of section 28 or any other condition within this constitution. There is no human or spirit on earth or in heaven that can revoke their citizenship.

However, people who acquired their citizenship through the application of sections 26 and 27 are subjected to the conditionalities in section 28 and therefore their citizenship can be forfeited if they are in breach of section 28. Their citizenship can also be deprived or revoked only by the President who is also the grantor of their citizenship if they are in breach of section 30. According to section 28 (1), it is only a Nigerian by registration or naturalization that will forfeit their Nigerian citizenship if they acquire or retain another country’s citizenship. A Nigerian by birth is not subjected to the provision and conditionalities in section 28 whatsoever.

In the case of Mr. Gbolugi, he is a Nigerian by birth and as such his citizenship is absolute and not subjected to section 28 hitherto section 66(1)(a) so the Tribunal erred in law when it made its judgement against him. The Tribunal separated section 28 from section 66 (1)(a) and applied it severally. The function of the courts or Tribunals primarily is to interpret the law. It is only the legislative body whose primary function is to make or amend laws. So, can a Nigerian with dual citizenship be prevented from contesting an election? It depends on what type of citizenship the Nigerian is holding. If you are a Nigerian by birth, and you have another country’s citizenship no law as of today prevents you from contesting. However, if your citizenship is acquired either by registration or naturalisation and you obtained another country’s citizenship by default you have forfeited your Nigerian citizenship and are no longer a Nigerian citizen and cannot contest an election in Nigeria.

Agboola Osabia, Esq.