Rilwan Balogun
On July 31, 2019, an election petition tribunal sitting in Ondo State sacked a member of the House of Representatives representing Okitipupa/Irele Federal Constituency of Ondo State. The reason for cutting his victory shortwas that the Peoples’ Democratic Party’s candidate, Ikengboju Gboluga holds a dual citizenship status, meaning that, hebeing a citizen of Nigeria by birth, voluntarily acquired the citizenship of the United Kingdom which he purportedly swore allegiance to.
Let me commence by defining who a citizen is, as stated under section 25 of the 1999 Constitution. Section 25 of the 1999 constitution (as amended) states that 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. This section further extends that everybody born in Nigeria after the date of independence either of whose parents or any of whose grandparents is a citizen or he is born outside Nigeria either of whose parent is a citizen of Nigeria. I wouldcategorically state without any equivocation that citizenship by birth is not applied for neither does it work with the noun “acquired”, it is naturally inured in every individual falling under the categories specified above, thus taking oath of allegiance is obviated. The citizenship by birth is of such nature that the person is not called upon to prove in normal circumstances that he is such a citizen.
On dual citizenship, section 28(1) of the Constitutiondescribes and not defines the circumstances under which dual citizenship is legally allowed by the constitution and what can lead to its forfeiture. Subject to the other provision of this section, a person shall forthwith his Nigerian
Citizenship if not being a citizenship or nationality of a country other than Nigeriaof which he is not a citizen by birth (emphasis mine) A hypothetical example of this is whereMr. Jimjaxwho is a Nigerian, either by registration or by naturalization,later onchooses to acquire the citizenship of another country by any other means other by birth,in this circumstance, thus Mr. Jimjax shall forthwith, forfeit his status of being a Nigerian which he had acquired either by registration or naturalization.Section 28(1) of the 1999 constitution gives room for the acquisition of dual citizen where such a person is a Nigerian citizen by birth only- Willie Ogbeide v Mr. Arigbe Osula (2004) 12 NWLR pt. 886.
Before delving into the reason why I dissent from the popular view of the right of dual citizen by birth to hold political office, I will at this juncture reproduce section 66(1)(a) of the Constitution verbatim which states thus:
No person shall be qualified for the election to the senate or House of Representatives if: – (a) Subject to the provisions of section 28 of this Constitution he has voluntarily acquired the citizenship to 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.
A cursory and objectiveperusalof the above section will point to the fact that the section expressly refers to those who voluntarily acquire the citizenship of another country and swear oath of allegiance to that country.Many have swallowed hook, line and sinker, the decision of the Court of Appeal in Ogbeide v Osula. This writer, however is of the view that the ratio adopted by the court to arrive at its decision in Ogbeide’s case need be critically examined. The decision arrived in this case was basically on lack of cogent evidence adduced by the appellant, that was convincing enough to move the court, a fortiori, it was a decision arrived at as an obiter.
My stance to go dive in dissenting but rather objectiveperspective is premised on the fact that if section 66(1)(a) of the Constitution does not refer to any type of citizenship under section 28 but citizenship by registration and naturalization, then the particular section 66(1)(a) is superfluous, nugatory and baseless. This, I posit because when citizens subscribe to the oath of allegiance of someNations in the world, it actually places some obligatory burdens of loyalty to the country on the registered citizen. This thereforewouldbreed an inadvertent divided loyalty and renunciation of his citizenship and loyalty to other state(s) which he had held. A clear example of this is the Oath of Allegiance to the United States which goes thus:
“ 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 noncombatant 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.”
A clear and objective interpretation of the above section points to the fact that a citizenship by birth who has subscribed to the above Oath of Allegiance of the United States has actually renounced and abjured his allegiance to any sovereignty or state, a fortiori, the Federal Republic of Nigeria. It even goes further to commit the person to a staunch constitutional obligation to resist any form of attack against “enemies” of the United States.
The advocate of the popular view of the non-applicability of section 66(1)(a) of the Constitutionto citizenship by birth should come to think of it that what if in a situation where the United States and Nigeria are in a war, that warrants the two countries of the need to solicit the supports of their respective citizens, here where does Mr. Nigerian by birth but United State citizen by registration align his loyalty? How can someone who has voluntarily renounced the allegiance and loyalty to his country home by birth be entrusted with exalted political office where the foreign policy of the country is at stake? Would it not be asinine and ridiculous if tomorrow the Nigeria’s Senate President or the Speaker of the House of Representatives is asked to come and bear arms against Nigeria based on the oath of allegiance he has sworn to as a citizen of the United States?
In her article published on the September 2, 2019, Editor of This Day Lawyer, Onikepo Braithwaite while raising some thoughtful questions as regards discrimination among different types of citizen which negates the provision of section 44(1)(a) of the Nigeria’s constitution, the learned editor, whom I revere so much, pointed to the fact that acquiring another citizenship should not make one less Nigerian. With utmost due respect, I dissent and posit that it would be more ridiculously asinine if a person who has sworn to renounce and abjure his allegiance to Nigeria where he has denied by stating, categorically to abide by the Oath Act of another country even where it is against the interest of Nigeria. It is in my humble opinion that while section 28 of the Constitution talks about renunciation of citizenship based on acquisition of citizenship of another country other than that which a registered citizen was born, section 66(1)(a) of the same Constitution simply states that a Nigerian citizen by birth, though a Nigerian but cannot hold a political office. In the learned editor’s hypothetical illustration where she gave an instance of someone with a citizen by birth under section 25(1)(b) who is legally qualified and not caught up by section 66(1)(a) of the Constitution. I am of the view that the fictional Raj Gupta as referred to by the learned author, though may not be more Nigerian in actual fact but has never renounced and abjured his allegiance to his country, thus he is not caught up by the latter part of section 66(1)(a) which reads in part that “… has made adeclaration of allegiance to such a country” we should not be beclouded by the bourgeoise interpretation of the constitution which interprets the provision of the grund norm as depriving Nigerians by birth who have acquired and sworn allegiance to other countries of holding political position. The hazard the section tries to curb is not to deprive those by birth but to be wary of those who have gone further, a step to another country to renounce their citizenship, and to a more ignoble length of swearing allegiance to defending the country even against the country they were born.
Balogun, a legal practitioner, writes in from Lagos