DUAL CITIZENSHIP CONSTITUTES NO BAR TO IWU HOLDING OFFICE AS INEC CHAIR
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By: Aloy Ejimakor & Obi Mbanaso
March 17, 2008
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This piece is intended as an opposite view to any notion that Professor Maurice
Iwu’s dual nationality or citizenship (of Nigeria by birth and the United States
by naturalization) constitutes a bar to his holding office as Chairman of INEC.
That it is wrong is so self-evident and trite, yet it is sadly the sole basis
upon which the Action Congress/Atiku (through Ricky Tarfa, as counsel of record)
has brought suit seeking to have Iwu removed from office as Chair of INEC.
The core constitutional provisions on dual citizenship and any effect it might
have on qualification to hold certain public offices are found in Section 28
(1); Section 66 (1) (a); Section 153 (1) (f); and Section 156 (1) (a) of the
1999 Constitution now in force. These sections spelt out the constitutional
consequences of dual nationality but also saw fit to place specific and clear
limitations on those consequences.
Section 153 (1) (f) provides that the Independent National Electoral Commission
which Iwu heads shall be one of the bodies “established for the Federation”. And
Section 156 (1) (a) provides that “No person shall be qualified for appointment
as a member of any of the bodies aforesaid if – he is not qualified or, if he
is disqualified for election as a member of the House of Representatives”.
Section 66 (1) (a) provides that: “no person shall be qualified for election to
the Senate or House of Representatives if – 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 country”
Section 28 (1) provides that: “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”.
The legal action by the AC/Tarfa is primarily propelled by an amazing misreading
of section 66 or a reading that deliberately excised the operative phrase:
“subject to provisions of section 28 of this Constitution”. Additionally, the
petitioners also ignored a critical sentence in section 28 that contained a
prohibition against applying the dual citizenship bar to a “citizen of Nigeria
by birth”, of which Professor Maurice Iwu is one.
Our reading of these sections as they pertain to Maurice Iwu and his
qualification to hold office as INEC Chair is in opposite to Tarfa’s, and that
is: The bar found in Section 28 of the Constitution is not applicable to Iwu
because he is a citizen of Nigeria by birth. The negative consequence of
this section is intended to be operate against only those Nigerians who acquired
foreign citizenship without first being citizens of Nigeria by birth or lineage
(such as citizens of Nigeria by naturalization or registration).
Taken further, even if Iwu is also a citizen of the United States by birth
(which he is not), he still would be eligible to hold high office provided he is
also a citizen of Nigeria by the other means saved by the Constitution such as
by derivation, lineage or aboriginality – through his parents being citizens of
Nigeria by birth (hailing from Imo State) or by being borne of Igbo stock, which
is one of the tribes aboriginal to Nigeria. By the same interpretation, Iwu’s
children and many others borne in the Diaspora of Nigerian parents are all
eligible to run for the House of Representatives and thus hold other high
offices such as INEC Chair.
Therefore, assuming that Iwu acquired citizenship of United States by
naturalization and also subscribed to some oath of allegiance to the United
States, his right to hold office as INEC Chair is saved by the sheer fact that
he also holds Nigerian citizenship by birth and not by the other discretionary
means such as by registration or naturalization.
The plain meaning of all the pertinent sections read together demonstrates that
Section 28 is paramount and controlling and unambiguously so, as found in the
limiting language rendering the broad sentence of Section 66 subject to the
saving sentence of Section 28. In other words, even if Iwu voluntarily acquired
United States citizenship or made a declaration of allegiance to the United
States, he is still eligible to hold office as someone qualified for election to
either the Senate or House of Representatives simply because he is a Nigerian
citizen by birth and not by the other means not saved.
In other words, Iwu would have been disabled only if he is a Nigerian citizen by
other means such as through any of the discretionary grants already mentioned.
So both Sections 28 and 66 must be read together and interpreted to conform to
the plain meaning of the black letters expressly limiting the overbroad
application of Section 66.
Further, sections 153 and 156 cannot be read and understood without first
referring back to Section 66 where the elements of the said qualification are
clearly spelt out. And once you pedal back to Section 66, the plain language
immediately compels you to again go back to Section 28 where the Constitution
contained a proviso intended by the framers and the people of Nigeria as a
shield against denaturalization of any Nigeria by birth for merely acquiring the
citizenship of another country by naturalization.
Therefore, the language of section 28 controls all other related provisions and
saved the day for any Nigerian citizen by birth to remain eligible to hold the
enumerated offices notwithstanding the concurrent presence of citizenship of, or
some oath of allegiance to another country. The only possible situations where
any Nigerian citizen may be barred would be one of the few cases where Nigerian
citizenship was acquired by means other than by birth or lineage, which is no
where near-applicable to Iwu.
Thus, Professor Maurice Iwu is eligible by any interpretation of the Nigerian
Constitution to hold office as Chairman of INEC. The claim by Action
Congress/Ricky Tarfa that the constitution disqualifies Iwu is deceitful and
exhibits a blatant abuse of the judicial process, if not a clumsy portrayal of
some nasty desire to get at Professor Iwu at all costs.
Ejimakor & Mbanaso are US-based Lawyers
alloylaw@yahoo.com
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