By Chidi Anselm Odinkalu

Three different decisions of the highest court in the country over the past two decades illustrate how the judicial conspiracy against popular sovereignty in Nigeria has prospered. In 2008, the Supreme Court ruled that elections in Nigeria are not governed by any foundational or legal principles. In other words, Nigeria has no legal standard for a free, fair or credible election.

The same court has ruled that in organizing elections, the Independent National Electoral Commission (INEC) is not bound by its own administrative regulations and guidelines. So, INEC can behave with impunity as a lawless institution and citizens and political parties have no right to have any expectations of the commission. The court has equally held that in Nigeria’s version of elective government, judges have the power to declare the majority votes in an election entirely “wasted” and to install manifest losers as winners.

These decisions have combined to denude elections in Nigeria of meaning as expressions of the will of the people. In these judgments and until now, the focus was on elections. The effect on citizenship, as the basis of the right to vote and to constitute a government was arguably indirect.

In a decision on 23 July (this past week), Oluseyi Owoeye, a judge of the Federal High Court in Lagos, goes dangerously further in this project of judicial liquidation of the constitutional foundations of elective government. According to the judge: “any question bordering on the action or omission of any or person [to] guarantees (sic) the participation by the people in their government is not justiciable before any Court of law in Nigeria.” As far as wilful and cynical jurisprudence goes, this takes the prize.

Given the significance of this judgment for civic rights in Nigeria, it is essential to provide some context so that those who are interested may follow the issues fully.

Chapter IV of Nigeria’s Constitution guarantees a set of Fundamental Rights which it requires the courts to enforce through an expedited process inscribed in the Fundamental Rights (Enforcement Procedure) (FREP) Rules made by the Chief Justice of Nigeria (CJN). For reasons that are not entirely clear, however, the rights guaranteed in Chapter IV do not include the right to vote or to participate in government.

Instead, Chapter II of the same constitution contains two important provisions of relevance to this. First, section 14(2)(a) exhorts that “sovereignty belongs to the people of Nigeria from whom government through this Constitution derives all its powers and authority.” As a complement, section 14(2)(c) follows this up with the promise that “the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.” However, in an earlier stipulation in section 6(6)(c), the same constitution precludes courts from exercising their powers to enforce these provisions of chapter II.

There are at least two exceptions to this constraint. First, under item 60(a) in the Exclusive Legislative List, the National Assembly may make laws “to promote and enforce the observance of the Fundamental Objectives and Directive Principles contained in this Constitution”, and the courts will be bound to enforce such laws. Second, under section 12(1) of the same constitution, the courts are bound to enforce the provisions of a treaty which has been enacted into law by the National Assembly, even if such a treaty covers issues contained in Chapter II of the Constitution.

In Nigeria, the African Charter on Human and Peoples’ Rights straddles both exceptions. Article 13(1) of the Charter makes up for the omission of a right to vote in the constitution by guaranteeing the right of citizens to participate in their government. In this sense, the Charter implements the provisions of Section 14 in Chapter II of the Constitution. The National Assembly enacted it into domestic law through the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act and the Supreme Court has recognized that the African Charter “is now part of the laws of Nigeria and like all other laws the Courts must uphold it.” The FREP Rules are explicitly available for the enforcement of the rights contained in the African Charter.

This context is essential to explain why this decision this past week by Oluseyi Owoeye of the Federal High Court in Lagos is both cynical and dangerous. In reaching this decision, the judge claimed that he could not enforce the guarantee of the right to participation in the African Charter on Human and Peoples’ Rights because participation is only contained in Chapter II of Nigeria’s Constitution, a provision to the enforcement of which he cannot lend his judicial powers.

That is manifestly disingenuous. It is also plainly misguided as a matter of law. If a judge cannot protect the right of citizens to participate in their government, why is he a judge? Will he prefer to protect stolen elections, instead?

The facts are also relevant here. On 20 July 2023, a class of Nigerian citizens instituted this case. The defendants were the INEC, the National Human Rights Commission (NHRC) and the Attorney-General of the Federation. Against INEC, they alleged multiple violations including exclusion from the register of voters, deliberate mismanagement of election logistics, wilful destruction of voters cards, and complicity in election-related violence.

Both the INEC and the NHRC entered appearance. The case took two years to come to judgment but, despite repeated reminders and orders by the Court, the Attorney-General of the Federation, a named defendant in a matter of such high civic and constitutional significance, could not be bothered to file any defence or instruct any of the numerous lawyers in his office to appear on his behalf. It is well possible that the judge took a cue from the attitude of the Attorney-General and decided to find a way to play good and avoid entering into the substance of the case. If that is so, then he settled for the worst possible escape route.

The logic of precluding courts from lending their powers to enforce the right to participate in government under an elective system essentially hollows out any idea of effective citizenship. Courts cannot decline the protection of the right to participation on the one hand and, on the other, agree to protect the integrity of elections or the obligations of those required by law to ensure that the ballot is credible. Effectively, if upheld on appeal, this judgment will license judicial burglary of Nigeria’s civics.

It is surprising that a case of this scope in its implications could have flown so beneath the radar of public attention to judgment. This case will naturally go next to the Court of Appeal. Hopefully, it will merit the attentions of a full panel of the Court of Appeal. At that point, civic groups will hopefully apply to join as interested parties in the appeal and there will also be similar applications by other groups to join as friends of the court (amici curiae).

This judgment by Oluseyi Owoeye of the Federal High Court is the latest in an increasingly fevered judicial effort to decapitate citizenship as the basis for government in the country. It egregiously perverse and should not stand.

It is worth recalling that among the truly unsung heroes of the resistance to military rule in Nigeria in the last three decades of the 20th century were judges in various courts around the country who opposed or constrained the excesses of military rule through their judgments. If the country’s current experiment in civil rule fails, it will be because some judges have replaced soldiers as those most enthusiastic about suffocating elective and accountable government founded – as the constitution mandates – on the will of the people.

A lawyer and a teacher, Odinkalu can be reached at [email protected]

By Prof Mike A. A. Ozekhome, SAN

INTRODUCTION

In a candid interview with CNN’s Fareed Zakaria on Sunday, Senior British Conservative politician of Nigerian descent Kemi Badenoch, offered a striking and controversial insight into the limitations of Nigerian citizenship law in an interview with CNN’s Fareed Zakaria. As a woman of Nigerian heritage serving as the UK’s Secretary of State for Business and Trade, Badenoch (formerly known as Olukemi Adegoke and who grew up in Lagos before going to stay in the UK at the age of 16) is no stranger to questions of identity, belonging and migration. But it was her deeply personal revelation and its legal implications that ignited a wave of public conversation not only among Nigerians in diaspora and those resident in Nigeria, but among leading scholars and constitutional analysts, particularly regarding gender equality in Nigeria’s citizenship.

THE INTERVIEW

With clarity and conviction, Badenoch remarked:

“It’s virtually impossible, for example, to get Nigerian citizenship. I have that citizenship by virtue of my parents. I can’t give it to my children because I’m a woman. Yet loads of Nigerians come to the UK and stay for a relatively free period of time, acquire British citizenship. We need to stop being naive.”

Her words, layered both with frustration and insight, and perhaps with political undertones, raise a poignant question: Can a Nigerian woman really not transmit her citizenship to her child as she said? Is Badenoch’s claim supported by the laws of Nigeria, or does it expose a longstanding misreading or worse, a structural gender bias within Nigeria’s legal framework itself?

BROADER CONTEXT: BADENOCH’S BACKGROUND AND POSSIBLE POLITICAL MOTIVES

Kemi Badenoch (45), married with 3 children to Hamish Badenoch (46), (a Scottish banker born in Wimbledon, London), was born in the UK in 1980 to Nigerian Yoruba parents and spent part of her childhood in Nigeria. This automatically makes her a Nigerian citizen by birth under section 25 of the 1999 Constitution. Her wild claim about Nigerian citizenship may have perhaps been driven by a rhetorical device to support her hardline stance on immigration in the UK.

By contrasting Nigeria’s supposedly restrictive laws with the UK’s “lenient” policies, she aims to appeal to the sentiments of British voters who are concerned about immigration matters. However, her misrepresentation of Nigerian laws to advance her political career clearly undermines the credibility of her argument and risks perpetuating wrong stereotypes about Nigeria’s legal system and constitutional order.

WHAT THE CONSTITUTION SAYS

Chapter 3 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), provides for citizenship in Nigeria. Every sovereign nation possesses the prerogative to determine the criteria for the acquisition of its citizenship. In the context of Nigeria, Chapter 3 provides a comprehensive legal framework governing citizenship. According to its provisions, Nigerian citizenship may be acquired through three principal modes: by birth, by registration and by naturalization.

CITIZENSHIP BY BIRTH

Citizenship by birth is articulated in Section 25 of the 1999 Constitution, which governs the acquisition of citizenship by birth. Section 25(1) stipulates that the following individuals are deemed Nigerian citizens by birth:

(a) any person born in Nigeria before the country’s independence, provided that either of their parents or grandparents belonged to a community indigenous to Nigeria. However, this provision excludes individuals whose parents and grandparents were not born in Nigeria;

(b) any person born in Nigeria after independence, where either of their parents or grandparents is a Nigerian citizen;

(c) any person born outside Nigeria, so long as either of their parents is a Nigerian citizen.

The Constitution defines “the date of independence” as the 1st of October, 1960.

Thus, by implication, citizenship by birth under Nigerian law may be established if:

• both parents are Nigerians;
• either parent is a Nigerian; or
• any grandparent is or was a Nigerian citizen.

This position was affirmed in Shugaba v Minister of Internal Affairs (1981) 1 NCLR, 459, where Justice Oye Adefila held that the deportation of the applicant was unconstitutional. The court emphasized that once an individual establishes Nigerian citizenship under Nigeria’s constitutional provisions, such a person cannot lawfully be deported or expelled from the country. In the decided case of Willie Ogbeide v ArigbeOsula (2004) 12 NWWLR (Pt. 886) 138, Adeniyi, JCA held that:

 “…a citizen of this country by birth never loses his citizenship even when 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.”

BOTH PARENTS CAN LEGALLY PASS CITIZENSHIP TO THEIR CHILDREN

This provision is unequivocal. Both fathers and mothers, regardless of gender, have the equal legal capacity to pass Nigerian citizenship to children born outside Nigeria. In this regard, Kemi Badenoch’s claim appears to conflict with the clear text of the Constitution. By virtue of being born to a Nigerian parent, her children are automatic citizens of Nigeria by birth, provided she herself has not formally renounced her own Nigerian citizenship. Importantly, this section does not restrict the transmission of citizenship by birth to the child of a Nigerian father alone. A close reading of Section 25 of the 1999 Constitution reveals that citizenship by birth in Nigeria is grounded in inclusive and non-discriminatory language. The provision declares that individuals born in Nigeria, before or after independence, or born abroad, are citizens by birth if either parent or any grandparent is or was a Nigerian citizen. The deliberate choice of the phrase “either of whose parents” is constitutionally significant. It affirms that both Nigerian fathers and mothers enjoy equal legal standing in passing on citizenship to their children. Section 42(2) of the Constitution provides a broad safeguard against discrimination, stating that:

“No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.”

This anti-discrimination provision reinforces the constitutional guarantee of equality before the law, irrespective of gender, ethnicity, parentage, or social class. In Uzoukwu v Ezeonu II (1991) 6 NWLR (Pt. 200) 708, the Court of Appeal provided an authoritative interpretation of Section 42, holding that the section embodies the core values of non-discrimination and equal protection before the law and applies with full force against any policy or law that attempts to disadvantage a citizen on the basis of gender or lineage.

This constitutional position is unambiguous. No distinction is drawn between paternal and maternal lines of descent for the purpose of determining nationality. Consequently, the notion that gender plays a limiting role in the transmission of citizenship, at least in the context of citizenship by birth as alleged by Badenoch, is not only inaccurate but also misleading. Such a claim disregards the text of the Constitution and perpetuates an outdated, patriarchal reading of nationality laws that the framers of the 1999 Constitution intentionally rejected.

It is, however, possible that the lived experience of certain individuals (including Kemi) may not align with the constitutional guarantee. Bureaucratic inefficiencies, inconsistent enforcement, or lack of awareness among administrative officers may present obstacles in the practical exercise of citizenship rights, particularly for women in cross-national family contexts. But these challenges are procedural rather than legal. They stem from the failure to implement the Constitution faithfully, not from a flaw within the Constitution itself.

IS THE ACQUISITION OF NIGERIAN CITIZENSHIP “VIRTUALLY IMPOSSIBLE”?

Furthermore, Badenoch’s assertion that acquiring Nigerian citizenship is “virtually impossible” raises a separate but equally problematic narrative. While it is true that the process of naturalization or registration may involve stringent requirements, citizenship by birth remains one of the clearest and most secure forms of nationality under Nigerian law. For those with direct descent from Nigerian citizens, the law provides an unequivocal path to recognition. Hence, if a Nigerian woman like Kemi gave birth to children (as she did), whether within or outside Nigeria, such children are constitutionally and automatically entitled to Nigerian citizenship (section 25 of the 1999 Constitution).

In this light, Badenoch’s statement reflects not a legal reality, but rather a possible misinterpretation of Nigeria’s citizenship regime, one that risks reinforcing stereotypes about African and Nigerian legal systems as arbitrary or exclusionary. More importantly, it obscures the modest constitutional progress that Nigeria has made towards embracing gender equality, at least within the letters of the law (though not yet as expected).

Ultimately, the Nigerian Constitution, specifically in Section 25 reflects a commitment to non-discrimination and inclusivity in matters of nationality. The real challenge lies not in the law’s intent or wording, but in ensuring that its application is consistent, gender-sensitive, and resistant to political distortions. Public figures, especially those of Nigerian descent occupying high offices abroad, ought to exercise caution and clarity when speaking on constitutional matters. Misstatements, however unintentional, risk entrenching harmful misconceptions that weaken the integrity of legal reforms painstakingly built over decades.

Kemi Badenoch’s assertion during her CNN interview that she cannot pass on Nigerian citizenship to her children because of her gender is therefore clearly contrary to and conflicts with the express language of the Nigerian Constitution. It is not correct.

EXPLORING THE UNDERCURRENTS OF GENDER INEQUALITIES

While Section 25 of the CFRN 1999 clearly empowers both Nigerian fathers and mothers to transmit citizenship to their children born outside Nigeria, thereby rendering Kemi Badenoch’s specific claim legally inaccurate, it would be reductive to end the analysis there.

Indeed, the constitutional safeguard of section 25 of the Constitution against gender-based discrimination has also been firmly reinforced through judicial precedent. In the locus classicus case of Mojekwu v Mojekwu (1997) 7NWLR (Pt 512) 283, the Court of Appeal struck down the Olu-Ekpe custom of Nnewi in Anambra State, which denied female children the right to inherit property of deceased parents. The court held that such a practice was repugnant to natural justice, equity and good conscience, and therefore incompatible with the values enshrined in the Constitution. Justice Niki Tobi, delivering the lead judgement, emphasized that customs or norms that discriminate on the basis of sex cannot stand in the face of constitutional protections. Though the Mojekwu case concerned with inheritance rights, its broader constitutional significance lies in its clear rejection of gender-based disability in any form. It affirms the principle that no citizen, male or female, should be denied access to certain rights or privileges simply on account of their sex, whether under customary law or through statutory interpretation.

CITIZENSHIP BY REGISTRATION

Kemi’s sentiment, though misplaced under Section 25, may in fact reflect a broader and valid concern, one rooted in the gendered inequities enshrined in other parts of Nigeria’s citizenship laws, particularly section 26. Of the same 1999 Constitution. Under section 26 of the Constitution, a person may acquire Nigerian citizenship by registration, but this provision is strikingly asymmetric. Specifically, Section 26(2)(a) provides that any woman who is or has been married to a Nigerian man may be registered as a citizen of Nigeria, subject to satisfying the conditions prescribed by law. However, there is no corresponding provision for foreign men married to Nigerian women to be registered as citizens of Nigeria. For example, Mr. Hamish Badenoch cannot simply be registered as a Nigerian citizen like his female counterpart married to a Nigerian man. This is clearly inconsistent with the provisions of section 42 CFRN 1999 which establishes the right of every        Nigerian citizen to freedom from discrimination.

Thus, while section 25 recognizes gender equality, Section 26 re-entrenches gender disparity. A person may apply for Nigerian citizenship by registration if:

• 
  – They are of good character and have shown a clear intention to be domiciled in Nigeria.
  – They are married to a Nigerian citizen (typically applicable to foreign women married to Nigerian men).
  – The President has the authority to register such persons as citizens, subject to conditions set by the National Assembly.
  
• This section allows a non-Nigerian woman married to a Nigerian man to apply for citizenship by registration. Specifically:
• Section 26(2)(a): “a woman who is or has been married to a citizen of Nigeria.”

This gender-specific language has been widely criticized for being discriminatory. Notably:

• It only grants registration rights to foreign women married to Nigerian men, not to foreign men married to Nigerian women.
  • A Nigerian woman cannot register her foreign husband for Nigerian citizenship in the same way a Nigerian man can register his foreign wife.

This supports the implication behind Badenoch’s claim: gender-based limitations exist, particularly in the transmission of derivative citizenship through marriage.

This constitutional inconsistency has therefore been the subject of sustained advocacy by civil society groups and legal scholars (including my humble self), many of whom argue that it violates Nigeria’s obligations under international human rights instruments, including the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and the African Charter on Human and Peoples’ Rights, both of which Nigeria has ratified

The silence of equality in section 26 of the 1999 Constitution is not just a technical oversight; it institutionalizes gender discrimination, effectively excluding Nigerian women from passing nationality to their foreign spouses, a right fully available to their Nigerian male counterparts. The discriminatory implication is that Nigerian women’s citizenship is seen as inferior or incapable of being transmitted, while Nigerian men’s citizenship is presumptively stronger and transmissible.

Political correctness aside, it is this historical and constitutional bias that may perhaps have partly framed Badenoch’s broader frustration. If a Nigerian woman’s spouse cannot be recognized as a citizen through marriage, and the process of transmitting citizenship to children is often hampered by bureaucratic inertia or patriarchal assumptions, then it becomes easier to see why she may feel disempowered, even in contradiction to the express language of Section 25 which makes her children automatic citizens of Nigeria.

COMPARATIVE PERSPECTIVE

Many countries have moved to gender-neutral citizenship laws, including:

• Ghana, where both men and women can confer nationality to their spouses and children;
  • South Africa, which enshrines non-discrimination and has a rights-based citizenship framework;
  • Canada, UK, and most of the West, where nationality is conferred equally by either parent.

Nigeria’s colonial-era laws and post-independence constitution still reflect patriarchal biases, which now clash with modern principles of gender equality.

CITIZENSHIP BY NATURALIZATION – SECTION 27

This is open to any non-Nigerian adult who satisfies the following criteria:

          •        Has resided in Nigeria for at least 15 years;

          •        Is of good character;

          •        Has made or is capable of making useful contributions to Nigeria;

          •        Is familiar with Nigerian customs and language;

          •        Intends to reside in Nigeria.

Naturalization is not tied to gender or marriage, but is subject to executive discretion by the President of Nigeria. Invariably, women are at the receiving end as they do not receive equal treatment with the men.

RECOMMENDATIONS FOR REFORMS

1. Amend Section 26 to allow either a Nigerian man or woman to register a foreign spouse.
   1. Clarify and enforce Section 25 to ensure that children born to either Nigerian parent—regardless of gender—have equal access to citizenship by birth.
   1. Review and harmonize immigration regulations with constitutional provisions and Nigeria’s international obligations.
   1. Launch a diaspora citizenship policy to ease the process for second- and third-generation Nigerians abroad.
   1. Educate consular officials to implement a gender-neutral interpretation of the law.

CONCLUSION

Kemi Badenoch’s statement that she cannot pass Nigerian citizenship to her children because she is a woman, though legally inaccurate under Section 25 of the 1999 Constitution, opens up an important and necessary conversation. The Constitution clearly provides that citizenship by birth can be transmitted through either parent, whether mother or father, regardless of where the child is born. Consequently, if Badenoch holds Nigerian citizenship and has not renounced it, her children are indeed Nigerian citizens by birth.

However, her remarks (though maybe politically expedient, having regard to her past negative statements about Nigeria) reflect a deeper frustration that is not entirely unfounded. While Section 25 affirms gender equality in theory, other provisions, particularly Section 26, which governs citizenship by registration, expose persistent gender biases in Nigeria’s nationality laws. The exclusion of foreign men married to Nigerian women from the registration pathway to citizenship demonstrates a clear constitutional imbalance. This asymmetry not only reinforces patriarchal assumptions but also undermines Nigeria’s commitment to international human rights obligations.

Badenoch’s experience, viewed through this lens, underscores the dissonance between constitutional promises and practical enforcement, especially for Nigerian women in the diaspora. It illustrates how systemic, bureaucratic and cultural barriers often prevent women from fully exercising the rights that the Constitution guarantees them.

In sum, while the law on its face protects the right of women to pass on citizenship, the structure around it does not always support or respect that equality. Kemi’s statement, though flawed in legal substance, serves as a catalyst for broader reflection and reforms; a reminder that constitutional rights must be matched with equal access, unbiased implementation and an unambiguous commitment to gender justice in law and in practice. Nigerian women, whether resident in Nigeria or in the diaspora, must be accorded equal rights, gender equity and equality within the Nigerian space. They remain our daughters, sisters and mothers.