Dismantling doubts around Constitutional Qualification of Nigerians in Diaspora for Public Office: A Critical Review of Adeosun v. AGF and Gboluga v. Akintoye & 3 Ors.
On September 14, 2018, Mrs. Folakemi Adeosun (“Mrs. Kemi Adeosun”), the erstwhile Minister of Finance voluntarily resigned her position in the Federal Executive Council of the President Muhammadu Buhari Administration citing reports about her neither obtaining a certificate of discharge or exemption from the National Youth Service Corp (NYSC). In the same year, Nigeria accounted for over a third of migrant remittance flows to Africa and estimates showed that the flows amounted to US$23.63 billion representing 6.1% of Nigeria’s GDP for 2018. The said amount translated to 83% of the Federal Government of Nigeria budget for 2018 and 11 times the Foreign Direct Investment into Nigeria. It was also 7.4 times more than the net foreign aid of US$3.4 billion received the previous year.
The United Nation’s official records have it that there are about 1.24 million migrants from Nigeria in the diaspora, if one defines ‘diaspora’ only as emigrants. Where the interpretation includes people who, though not born in Nigeria, are of Nigerian heritage and identify as such, that number could leap to as much as 15 million Nigerians leaving in diaspora.
In addition to financial remittance, Nigerians in diaspora have continued to make valuable remittance in human resources and expertise in the private and public sectors of the Nigerian economy, not to mention innumerable personal sacrifices and commitment by Nigerian athletes and sports stars in diaspora, who put themselves through training and preparations to fly the Nigerian flag at mundial, continental and other sporting events to the pride and glory of Nigeria and all Nigerians.
In every facet of endeavour and achievement, the Nigerian diaspora continue to play significant role in promoting Nigeria. Until recent hiccups that cast a momentary shadow on the constitutional qualification of Nigerians in diaspora to continue the streak of excellence for the benefit of the motherland; particularly in governance and politics. Though the said shadow loomed large and threatened to stifle, or at least threaten the path of valuable inflow of human capital excellence into our public sector, it has now been illuminated by decisions of superior Nigerian courts of competent jurisdiction in two different suits handled by the Law Firm of Wole Olanipekun & Co.
One of the suits, which sought to test the presumption that non fulfillment of the National Youth Service Corps (“NYSC”) programme before assuming office supposedly disqualified Mrs. Kemi Adeosun from being appointed – having been appointed – continuing as a Minister of the Federal Republic. Mrs. Adeosun through her counsel, Chief Wole Olanipekun, SAN vide an Originating Summons dated 11th March, 2021 and filed same day at the Federal High Court, Abuja against the Attorney-General of the Federation (“the Defendant”) per Folakemi Adeosun v. Attorney-General of the Federation in Suit No: FHC/ABJ/CR/303/2021. The suit questioned the eligibility or otherwise to hold political office in Nigeria in the light of non-participation in the NYSC Scheme as a result of any combination of being a dual citizen of another country, completing tertiary education abroad or living in the diaspora at the material window of eligibility for participation of the NYSC scheme and obtaining a discharge certificate or a certificate of exemption.
Chief Wole Olanipekun, SAN, counsel to Claimant, Kemi Adeosun, contended that nothing in the Constitution provides for participation in the NYSC Scheme as a requirement for qualification for appointment into a political office/position in Nigeria. The learned senior advocate argued that it is a constitutional misconception to conclude that for a person to serve as a Minister of the Federation, such person must have participated in the NYSC Scheme. It was contended that pursuant to Article 28 of the 1979 Constitution (which was invoke as at the time she graduated from the University), the Plaintiff having become a British citizen by birth, as she was born in the United Kingdom, and having retained her British citizenship, forfeited her Nigerian citizenship with all its attendant rights, privileges and duties, including the duty to participate in National Youth Service Corp scheme. The position of law in Article 28 of the 1979 Constitution has no equivalent in the extant Constitution of the Federal Republic of Nigeria 1999 (as amended) and therefore no longer in force. However, by this time, Mrs. Adeosun was already past the year stipulated for participation in the National Youth Service Corp scheme.
Learned counsel for the Defendant submitted that the minimum constitutional qualification required for a Minister of the Federal Republic of Nigeria is school leaving certificate and the constitutional provision takes precedent over the NYSC Act. Therefore, Kemi Adeosun’s ministerial appointment was not illegal nor unconstitutional even without presenting her NYSC certificate. In other words, the Defendant’s counsel did not oppose Chief Olanipekun’s argument.
Justice Taiwo Taiwo, in his judgment, commended their lucid submissions of counsel on both sides. The Court found the submissions illuminating and both in agreement with the constitutional issues submitted for interpretation by Mrs. Adeosun. The Court agreed Mrs. Adeosun was and remained eligible, despite not participating in the NYSC scheme, to be appointed as Minister.
Dual Citizen’s Dilemma
The other judicial decision that beams light on the path to public service, particularly into elective positions, for Nigerians in diaspora is the Ikengboju Dele Gboluga v. Hon. Albert Akintoye & 3 Ors, Appeal No: C/AK/EPT/NAS/286/2019 which specifically bothered on the qualification of one with a dual citizenship to validly run for office in Nigeria.
The Appellant in this case, Mr. Ikengboju Dele Gboluga (“Mr.Gboluga”) was the candidate of the People’s Democratic Party (PDP) in the election into the Federal House of Representatives, representing the Okitupupa/Irele Federal Constituency of Ondo State in the National Assembly, held on the 23rd February, 2019. Mr. Gboluga was declared winner of the election after gaining 31,042; the highest number of votes, against Hon. Albert Akintoye, the 1st Respondent who polled 19,805 votes. By a petition, dated and filed on 15th March 2019 at the Ondo State National and States House of Assembly Election Tribunal, the 1st Respondent challenged the victory primarily on the ground that Mr. Gboluga was at the time of the election not qualified to contest by reason of his allegiance to the United Kingdom i.e., holding dual citizenship. The Tribunal ruled in favour of the Petitioner, hence the appeal to the Court of Appeal.
Mr. Gboluga, through his counsel, Chief Wole Olanipekun, SAN contended that though section 66(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (“the Constitution”) provides that, no person shall be qualified to assume a seat in the Senate or House of representative where he has voluntarily acquired the citizenship of another country other than Nigeria. However, this constitutional provision is not to be read in absolutism or isolation as it is made subject to section 28 of the Constitution. Section 28 of the Constitution is to the effect that one shall not forfeit his citizenship by the acquisition of another citizenship where he is a citizen of Nigeria by birth. In view of this modification by the Constitution, Mr. Gboluga retains his Nigerian citizenship even whilst holding British citizenship. Chief Wole Olanipekun, SAN further argued that, the protection offered by section 28 of the Constitution is to cure the mischief of a Nigerian citizen by birth losing his citizenship and right to contest in an election, hence, the trial Tribunal had no strong legal basis to decide otherwise on the qualification of Mr. Gboluga or any Nigerian who holds dual citizenship to validly contest elections in Nigeria. The Learned Silk was of the view that the trial Tribunal adopted a rather restrictive approach in its interpretation of the Constitution as against the acceptable, binding, emulative and globally acknowledged doctrine of liberal and holistic interpretation of statutes. The interpretation given by the Tribunal according to the Learned Silk amounted to decapacitating the effect of subjugating section 66(1)(a) to section 28 of the Constitution by holding that only a part of the said section 66(1)(a) was subject to section 28. The Learned Silk further posited that the possession of a Nigerian passport is confirmation of Nigerian citizenship and opposite of any act of renunciation as one cannot carry his Nigerian Passport that accords protection and the right to egress on him and still be held to have an unalloyed allegianceto a foreign nation. Chief Olanipekun, SAN dwelt extensively in the comparatively analyses of reciprocity practice in international relations among nations and urged the Court to take judicial notice of same. Counsel to the 1st Respondent on the other hand contended that, the use of the words ‘no person’ and ‘shall’ in the opening part of section 66(1) is a clear manifestation of the intendment of the drafters of the Constitution that the provision shall apply to all Nigerians irrespective of the category of their citizenship.
Upon hearing arguments of Counsel for both sides, the Court held that reading Section 66 (1)(a) holistically, one would notice that it does not prohibit a citizen from holding the Citizenship of another country or from contesting for electoral positions. By reference to section 28 of the Constitution, unless amended, the legislative intent is not to tamper with the incidental benefits and citizenship rights of a Nigerian by birth on any ground relating to citizenship or allegiance whatsoever. Conclusively, the Court resolved the issue on dual citizenship in favour of Mr. Gboluga and reached a firm decision that holding citizenship of another country did not disqualify him from validly contesting election in Nigeria.
From the foregoing, there is a clear, unequivocal, and compelling indication that the concerns of Nigerians living in diaspora, who have claimed or retained their Nigerian citizenship, of having impediment, limitation, or obstacle in aspiring to remit their time, talent, and expertise to the development of Nigeria via public service, be it by being appointed into office or contesting election into office, has been permanently dismantled. In so far as a Nigerian by birth meets other qualification requirements, not holding an NYSC discharge or exemption certificate or holding dual citizenship wound not be a hindrance to the aspirations of holding public office.