DUAL CITIZENSHIP CONSTITUTES NO BAR TO IWU HOLDING OFFICE AS INEC CHAIR

By: Aloy Ejimakor & Obi Mbanaso

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 constitutional 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 real purpose of the suit is to invalidate Yar’Adua’s mandate on the basis that the election was conducted by a foreigner (Maurice Iwu); and if the petitioners prevail, it will bring a wholescale denaturalization of millions of Nigerian Diaspora who have acquired foreign citizenships of different countries – on the assurance found in the Nigerian Constitution that it is okay to do so.

The core constitutional provisions on dual citizenship and any effect it might have on qualification to hold certain public offices are found in Sections 28 (1); 66 (1) (a); 153 (1) (f); and 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”.

Assuming that it is true that Professor Iwu, a citizen of Nigeria by birth is also a citizen of United States by naturalization and that he subscribed to an oath of allegiance to the United States, the legal action by the AC/Atiku/Tarfa, predicated as it is on sections 28 and 66 of the Constitution still cannot hold water. This is because the general bar contained in section 66 is “subject to the provisions of section 28”; and section 28 exempted that bar for “a citizen of Nigeria by birth”. Again, Professor Maurice Iwu is citizen of Nigeria by birth. Therefore, 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 (again): 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 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 would still 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.

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