By RACE Achara
Is a false statement under oath (perjury) to INEC, by itself, a disqualifying factor for a Nigerian presidential candidate? Under what constitutional provision or law?
The constitution rather disqualifies such a candidate for a specific, different, offence, to wit: presenting a forged document (at any time) to INEC.
In Adaba Abah of 2017, the SC took the view that the trigger for disqualification was complete when this fact was established even under civil proceedings. In effect, there’s no necessity for prior proof of a conviction in a full-blown criminal trial.
We need not confuse the position under the erstwhile Electoral Act (EA) with the current situation of things.
Before the EA of 2022, virtually anybody could challenge a candidate’s false statement on oath to INEC (even when the falsity did not amount to a forgery). This challenge at a (Federal) High Court, if successful, disqualifies, and can even unseat, a candidate who has already been sworn in for legislative duties.
The current EA does not retain this. Only the preclusion as it relates to forgery in the constitution has been retained.
But this is no disclaimer regarding the trending controversy which Journalist Hundeyin has raised regarding the question of whether the president-elect is constitutionally disqualified or not as a result of his acquisition (note, not merely the retention) of a foreign citizenship. [Editorial aside: a full stop rather than a question mark is appropriate here. The contrary widespread practice in our appellate briefs and an unfortunate dictum by a learned JSC villifying what is actually the correct punctuation mark when a sentence leads with the word “whether” serves as justification for this extended clarification statement].
It is easy to be misled by the marginal note (MN) to section 28 of our 1999 constitution (which has remained unaltered these 24 years). The section crucially deals with forfeiture of citizenship, not necessarily with the right to acquire or to retain dual or multiple citizenships.
The forfeiture sanction in section 28 has no application whatsoever to a person who is a Nigerian citizen by birth (and who had not earlier effectively renounced that status under section 29).
Section 28 says that when a citizen by registration or by naturalization acquires our Nigerian citizenship, that s/he would automatically forfeit it if, within a certain stated period of months, s/he does not effectively renounce the citizenship of the other country or countries which she previously held and retained after she acquired Nigerian citizenship.
Forfeiture does not apply to a citizen of Nigeria who is so by birth (as defined under section 25). What applies is renunciation. However, to any extent that its provisions might apply to a Nigerian citizen by birth, section 28 could only possibly have that effect only in respect of such of our citizens by birth who “voluntarily acquire” such foreign citizenship or who voluntarily swear an oath of allegiance to such a foreign power of which s/he is not, under the applicable law of that country, a citizen by birth.
What this means is that section 28:
a) takes the right of dual citizenship for granted;
b) focuses on forfeiture of an already acquired Nigerian citizenship, not steps to take before acquiring one;
c) exempts Nigerian citizens by birth from the potentiality of the section 28 power of forfeiture; and
d) protects the other classes of citizens who merely acquired theirs by registration or naturalization if they effectively renounce the other citizenships within 5 months of the grant or, if without so renouncing it, they are able to show that such prior foreign citizenship was (not acquired but arose automatically and is retained as a consequence) of birth.
However, the constitution makes other provisions about the qualifications for holding office (appointive and elective) which provisions apply whether or not a Nigerian citizen (dual or not; by birth or not) had escaped the forfeiture, renunciation, or revocation of his Nigerian citizenship.
Thus, even if a citizen by registration or by naturalization had effectively renounced his previous citizenship within 5 months after the Nigerian grant, he would escape the automatic forfeiture of his newly acquired Nigerian citizenship (under section 28) but would still not be entitled (within 10 years thereafter) to stand for election to the office of President or of Governor in Nigeria! Indeed, a citizen by naturalization is, under certain conditions, precluded from even certain political appointments regardless of his compliance with conditions that exempt him from the forfeiture sanctions prescribed by section 28.
We lay the foundation above in order to demonstrate that when section 131 or 137 specifies a qualifying or disqualifying condition for the elective office of Nigerian president and goes ahead to make it subject to provisions of section 28, that it merely thereby indicates (although by inelegant drafting) that satisfaction of the requirements under section 137 for qualification are still subject to the additional qualification under section 28 (that the candidate had not earlier forfeited his or her Nigerian citizenship). The better view however is that the reference in section 137 to section 28 is otiose insofar as section 28 could never have any application to the office of President, which section 131 had already made exclusive to Nigerian citizens by birth.
Clarity seems to lie with the distinction the relevant provisions of the constitution have consistently and continuously drawn between, on the one hand, citizenships which have been retained at the point of acquiring another; and, on the other hand, citizenships, which have been acquired as an accretion on an already existing (and usually automatic or birth-based) citizenship status.
Section 28 as a forfeiture power applies automatically to forfeit Nigerian citizenship that has been acquired by a foreigner who failed or neglected to, while being a newly minted Nigerian citizen, renounce any prior citizenship except those s/he retains by birth, not by acquisition.
Semble, a Nigerian citizen by birth who is also by birth the citizen without an independent choice of a foreign country can, under section 28, retain that foreign citizenship without the consequence of forfeiture if s/he fails, neglects, or refuses, to renounce it. But what of when that or any other Nigerian citizen acquires or acquired foreign citizenship (not one merely retained by reason of birth)?
Section 28 suggests that, even here, the sanction of forfeiture that would automatically apply in the case of a formerly non-Nigerian citizen, would still not apply to forfeit the non-acquired but automatic citizenship status s/he retains by virtue of birth.
Nevertheless, this would not necessarily affect any consequences, which that conduct may attract to such a citizen of Nigeria by birth under other provisions of the constitution regarding the qualification, vel non, to stand for particular offices.
In the event, section 137 makes one aspect of its conditions of presidential disqualification fall under the heading of continued Nigerian citizenship but predicates this under two distinct categories.
In the one, a continuing citizen of Nigeria by birth is nevertheless disqualified from becoming president if he has acquired the citizenship of a foreign country (but, subject to section 28, which makes him not thereby to forfeit his retained Nigerian citizenship). Here, a Nigerian citizen by birth is protected from any additional foreign citizenship by birth, which in virtue of childhood (birth) cannot be attributed to the exercise of his voluntary will. In this case, he can, except otherwise prohibited elsewhere, disclose the position to INEC and run for the relevant office. It is a different kettle of fish (excuse the tired metaphor) if the different allegiance was not forced on him by birth but something he, at full age, voluntarily elected to acquire. This acquisition will not deprive him of his Nigerian citizenship by birth as dictated by section 28. However, although he remains a Nigerian citizen by birth, section 137 precludes him from being one of the Nigerian citizens by birth who the selfsame 1999 Constitution permits to run for office as president of Nigeria.
In the other, such a Nigerian citizen by birth is yet disqualified from the Nigerian presidency if (regardless of not forfeiting his citizenship by birth under section 28) he voluntarily swears allegiance to a foreign country (whether or not in swearing the allegiance he had also acquired the foreign citizenship).
The clear implication is that a person can, without forfeiture of his Nigerian citizenship and, even without going as far as acquiring, in addition, the citizenship status of another country, yet be disqualified from running for the elective office of Nigerian president if that person is shown to have voluntarily (usually on adulthood and not automatically by unconscious birth) acquired the citizenship of a foreign country or sworn allegiance to it.
The Hundeyin revelation can only effectively be analysed along the lines of a nuanced understanding.
Prof. R. A. C. E. Achara, Ph.D. (Nig.)
Doctoral winner of the University of Nigeria Postgraduate Prize for Law;
Bill & Melinda Gates Foundation Fellow of the Five College African Scholars Program;
Millennial Chairman, NBA Enugu Branch 2000-2002;
Principal, Prof. RACE Achara Law Chambers,
New Haven, Enugu.
5:08 hours, Wednesday,
19:04:23.
