Of elections and dual citizenship

THE judgment by the Ondo State Election Petitions Tribunal that nullified the election of a member of the House of Representatives, Ikengboju Gboluga, has raised important issues that require clarification concerning the qualification of persons with dual citizenship to hold significant elective public offices in Nigeria. This is not just because it conflicts with earlier judgments made by tribunals of equivalent status in the system of courts, but more importantly because a dual citizen holding important elective or appointive position carries specific security and commitment implications.

The Ondo tribunal removed Gboluga, representing Okitipupa/Irele federal constituency, on the grounds that once a person holds dual citizenship or has sworn allegiance to another country, he cannot stand for election into the House of Representatives. Mr. Gboluga was in April declared winner of the election on the platform of the Peoples Democratic Party (PDP). However, the APC candidate challenged the declaration on the grounds that he holds United Kingdom citizenship in contravention of the relevant laws of the country, particularly section 66(1) of the 1999 Constitution. The section states: “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.”

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Earlier, in a similar case, the Court of Appeal sitting in Ibadan, Oyo State, had dismissed an appeal filed by the state chapter of the Peoples Democratic Party (PDP) to challenge the election of the then state governor, Senator Abiola Ajimobi of the Action Congress of Nigeria (ACN), on the grounds that the governor allegedly held Nigerian and United States citizenship. But the court, in a judgment delivered by Justice J.S. Ikyegh, held that the appellant had not proved that Senator Ajimobi acquired American citizenship while being a Nigerian. Affirming the decision of the Oyo State Governorship Election Petitions Tribunal which initially dismissed the PDP’s petition, Justice Ikyegh declared that there was no merit in the appeal. He stated that Senator Ajimobi, having been proved to be a Nigerian by birth, could not be disqualified from contesting for any elective office in the country. He stressed that Senator Ajimobi could not be robbed of his right to hold public office.

Two issues are therefore at stake here. The first has to do with whether a Nigerian citizen by birth can lose his or her citizenship by acquiring the citizenship of another country or by pledging allegiance to another country. The position of the courts on this is unanimous. A Nigerian citizen by birth does not lose his or her citizenship by so doing. Section 28 of the 1999 Constitution provides as follows: “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.” Apparently referring to Sections 25-27 of the  same constitution, it makes a distinction between citizenship by birth and other forms of citizenship.

It must be noted that these sections of the constitution provide that one can acquire Nigerian citizenship by birth, by registration  and by naturalisation. The second issue has to do with whether a Nigerian citizen by birth who has acquired the citizenship of another country or pledged allegiance to another country forfeits his or her right to significant elective public offices in Nigeria. This has been interpreted by some courts as applying only to those who are Nigerians by registration or naturalisation if they acquire the citizenship of other countries, while other courts have interpreted it more broadly to apply to Nigerian citizens by birth if they acquire the citizenship of other countries. The latter view was upheld in the judgment of the Ondo State Election Petitions Tribunal that nullified Gboluga’s election.

However, the Court of Appeal’s decision in the case of Dr. Willie Ogebide v. Mr. Arigbe Osula {2004} 12 NWLR (part 886, p. 127 paras D-G) rejected a similar judgment by an election tribunal. Adeniji, JCA, reading the lead judgment of the court, held as follows: “The tribunal held on page 121, paragraph 2 of the record, that a Nigerian citizen by birth, even though he does not forfeit his Nigerian citizenship by his acquisition of the citizenship of another country, would  stand disqualified from being a member of the National Assembly if he holds such citizenship or has subscribed to an 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 1999 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 Representatives 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 be a member of the National Assembly.”

In our view, the continuing tension in the courts over this second issue requires that it should be pursued to the highest court in the land, so that a clear interpretation of the provisions of the constitution can be made. Happily, the PDP has rejected the judgement of the Ondo tribunal and declared that it would appeal the judgment.  We hope that it will pursue the case up to the Supreme Court. it is our view that the issue of dual citizenship has to be reviewed to ensure that individuals who are citizens of Nigeria by birth but hold dual citizenship or have pledged allegiance to another country need to have their status clearly defined.