A CRITICAL EXAMININATION THE PROVISIONS OF THE 1999 CONSTITUTION DEALING WITH DUAL CITIZENSHIP

1 A CRITICAL EXAMININATION THE PROVISIONS OF THE 1999 CONSTITUTION DEALING WITH DUAL CITIZENSHIP By Duru, Onyekachi Wisdom Ceazar (Email: onyekachiduru@gmail.com; Tel: +234-8037707496) Please note that this article is being provided for research purposes and is not to be reproduced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. Abstract This paper examines the nature of dual citizenship in Nigeria, with a view to establishing whether the current constitutional provisions relating thereto are justified. In so doing, the paper probes the legal principles and rationale for the dual-citizenship provision of successive Nigerian constitutions. The position in Nigeria has been compared and contrasted with that in some selected compatible jurisdictions around the world. Introduction In general, the realization of major principles and dimensions of citizenship, especially with regard to people’s rights, entitlements, and obligations, is largely determined by the nature of the state, which varies depending on its socio-historical context.1 Indeed, the connotation and composition of citizenship in each society are inseparable from the nature and formation of the state.2 More specifically, the rights and obligations associated with citizenship are largely dependent on the ideological M. S. Haque, “Global Rise of Neoliberal State and Its Impact on Citizenship: Experiences in Developing Nations” (2008) 36 Asian Journal of Social Science at Abstract. 2 Ibid at 11 1 Electronic copy available at: http://ssrn.com/abstract=2147361 2 foundation, political configuration constitutional provision, and policy orientation of the state3. Citizenship can be very problematic in a country like Nigeria, which is yet to resolve fundamental issues of national togetherness4. This paper examines the nature of dual citizenship in Nigeria, with a view to establishing whether the current constitutional provisions relating thereto are justified. In so doing, the paper will probe the legal principles and rationale for the dualcitizenship provision of successive Nigerian constitutions. The position in Nigeria will also be compared and contrasted with some selected compatible jurisdictions in other parts of world. The Concept of Citizenship The word citizenship has been defined as pertaining to a person who under the constitution and the laws of a particular state is a member of the political community, owing allegiance and being entitled to the enjoyment of some fundamental rights.5 It is the status of being a citizen.6 It signifies the totality of all the rights and privileges accorded to all members of a given state.7 3 Thus, despite the unprecedented process of globalization, diminishing the significance of national identity and sovereignty in the current epoch; the role of the state remains crucial in redefining and restructuring citizenship. 4 W. Adebanwi, “Contesting Exclusion: The Dilemmas of Citizenship in Nigeria” (2005) 12 (1) The African Anthropologist 11 at 20. 5 The Black’s Law Dictionary, 5th Edition. 6 A. Garner (Ed. In Chief), Black’s Law Dictionary Eight Edition (USA: Thomson West Inc., 2004) at 261. 7 E. D. Tandu, An Introductory Handbook on Political Science (Calabar: Baye Communications Ltd., 2003) at 43. Electronic copy available at: http://ssrn.com/abstract=2147361 3 Citizenship is derived from the concept of nationality.8 Sometimes citizenship is used synonymously with nationality. A citizenship of a state is sometimes referred to as a national of that state. However, it would appear that modern usage has come to distinguish the two terms with respect to the domain of jurisdiction. Thus, whereas, citizenship is commonly associated with the domestic or municipal law defining and guiding the relationship between the state and the individual, nationality is associated with the international law defining and guiding the relationship between the individual and other states.9 Citizenship is the guiding principle of democracy10. Citizenship is core to the conception and practice of democracy, involving ‘the right to be treated by fellow man being as equals with respect to the making of collective choices and obligations of those implementing such choices to be equally accountable and accessible to all members of the polity.’11 Citizenship as a principle imposes obligations on the ruled, to respect the legitimacy of choices made by deliberation among equals, and rights on rulers, to act authority (and to apply coercion when necessary) to promote the effectiveness of such choices, and to protect the polity from threats to its 8 H. E. Alapiki, Politics and Governance in Nigeria (Port Harcourt: Amethyst and Colleagues Publishers, 2004) at 117. 9 E. O. Tandu, op. cit. at 43-44. The Distinction should not be taken too far. Rather, in certain respects, citizenship seems to encompass nationality. For example, Indian nationals could be British citizens or Britons. 10 O. Guillermo and P. C. Schmitter, Transitions and Authoritarian Rule: Tentative Conclusions about Uncertain Democracies (Baltimore and London: The John Hopkins University Press, 1991) at 7. 11 Ibid 4 existence12. Citizenship is more of a gauge and guide on how democratic the society is and how to make the society more democratic. In a more crucial sense, citizenship denotes ‘ensuring that people take more active role and more control in and over the shaping of their destinies in the society.’13 In democratic theory, those who constitute citizens are those whose participation in society and polity forms the basis of the political society.14 The modern conception of citizenship as merely a status held under the authority of a state has been contested and broadened to include various political and social struggles of recognitions and re-distribution as instants of claim-making.15 Citizenship therefore supersedes merely the enjoyment of rights, its fundamental purpose is in having the potential to use these rights to make life and society better. Citizenship status should mean more than the protection of private rights, as it essentially is in the liberal model; it involves a commitment to democratic processes which are inclusive enough to make the people more or less the authors of the laws that govern them. Successive Nigerian Constitutions since political independence had emphasized the issue of citizenship. Currently, Chapter III of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2011) 12 Ibid at 8. A Yeatman, Democratic Theory and the Subject of Citizenship: Culture and Citizenship (Brisbane: Australian Key Centre for Cultural and Media Policy, 1996) at p.1 14 Ibid. 15 E. F. Isin and B. S. Turner, “Citizenship Studies: An Introduction” in E. F. Isin and B. S. Turner (Eds.), Handbook on Citizenship Studies (London: Sage Books, 2002) at p.2. 13 5 provides for citizenship. This paper focuses on the aspect that deals with dual citizenship and interrogates the basis of the provision. Dual Citizenship under Nigerian Constitution: An Appraisal Dual citizenship refers to the situation whereby an individual enjoys the rights and privileges of citizenship of two nation-states simultaneously.16 In short, dual or multiple citizenship is when an individual becomes a citizen of more than one state.17 This situation arises when a person is born in a state which operates the Jus Sanguinis.18 Again, dual or multiple citizenship can occur when a woman married to a man of another country and at the same time acquires that of her husband by marriage. This is especially the case where the receiving country does not insist on the renunciation of the former citizenship. The 1960 constitution of Nigeria clearly objected to dual citizenship. By section 12 of that constitution, “any person who, upon his attainment of the age of twenty-one years, was a citizen of Nigeria and also a citizen of some country other than Nigeria shall cease to be a citizen of Nigeria upon his attainment of the age of twenty-two years (or in the case of a person of unsound mind, at such later date as may be prescribed by parliament) unless 16 H. E. Alapiki, op.cit. at 120. O. Tandu, op.cit. at 45. 18 This literally means law of blood or citizenship by decent. It enjoins that any child of parents who are citizens of a particular state is born a citizen of the same state whether or not he or she is born within the territorial jurisdiction of that state. For example, a child born to Nigerian parents resident in Ghana is automatically a citizen of Nigeria. 17 6 he has renounced his citizenship of that other country, taken the oath of allegiance…” Under the 1979 Constitution,19 any citizen of Nigeria who acquired the citizenship of another country automatically forfeited that Nigeria citizenship. This was so except such a person was a citizen by birth, and renounced his other citizenship by the age of twenty-one or within one year of the coming into force of the 1979 constitution.20 However, under the 1999 Constitution (as amended in 2011)21 a citizen by birth can acquire the citizenship of another country without renouncing his Nigerian citizenship. Also, citizens by registration and naturalization can retain their citizenship by birth and acquire Nigerian citizenship. They must, however, within twelve months of the grant of the certificate of registration or naturalization, renounce the citizenship of any other country other than that of the citizenship of their birth. In interpreting the above provision, the Court of Appeal has held in the case of Ogbeide v. Osula 22 that: …a citizen of Nigeria by birth cannot have such citizenship forfeited or become ineligible to contest such elections under any circumstances, even where section 65(1)23 is read with section 13724, a person 19 Section 26(1) thereof. Section 26(3) thereof 21 Section 28 thereof. The 1999 constitution does not expressly or clearly state that dual citizenship is not allowed. What is does is to state the conditions under which such dual citizenship is not allowed. 22 (2004) 12 NWLR (Pt. 886). Per Adamu JCA. 23 Of the 1999 Constitution. 24 Ibid. 20 7 who is not a citizen of Nigeria can be so registered, but where he is not a citizen of that other country by birth, his registration will be conditioned on the renunciation of his citizenship of that other country. In other words, renunciation of citizenship does not apply to a citizen of this country by birth… what one can make of that section read with sections 25, 26, and 27 of the constitution is that a citizen of this country by birth never loses his citizenship even where 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.25 Justification for the foregoing position is many and varied. Immediately after independence, the trend in most African countries was to outlaw dual nationality and even the few countries that allowed it bared people with dual nationality from holding high political offices. The rationale for this was the perceived split in loyalty of such persons. The argument then was that the loyalty and allegiance of people with dual nationality could not be guaranteed and government then felt it prudent to disqualify this category of people from high political posts.26 Perhaps this argument had some merit in the 50s, 60s, and 70s at the height of the Cold War. The court’s pronouncement is clear and logical. The above reasoning of the Court of Appeal has been followed by the Federal High Court sitting in Abuja in the case of Professor Odidi & Akeem Bello v. INEC (Suit No: EHC/ABJ/CS/29/07. In that case, the applicants had challenged the validity of the Independent National Electoral Commission (INEC) to disqualify the first two applicants, who were respectively the presidential and vice presidential candidates of the New Democrats Party, from contesting the 2007 Presidential elections on the basis that because both of them held citizenship of Canada and America, respectively; they stood disqualified from contesting the country’s presidency by virtue of the provisions of section 137(1)(a) of the constitution. The presiding judge, Justice A. I. Chikere quoted with approval the dictum of His Lordship, Adeniji JCA in the Ogbeide case (Supra) that “a person who is a citizen of Nigeria by birth cannot have such citizenship forfeited or become ineligible to contest election under any circumstances even where section 65(1) in the present case is read together with section 137 of the 1999 constitution. His Lordship then directed INEC to register the two applicants to contest the 2007 election. 26 See A. Kareem, “Dual citizenship & Elective Offices in Nigeria” (2011) available online at www.nigeriavillagesquare.com/forum, accessed 02/09/12. 25 8 What is certain now though is that in these days and ages, the argument of split loyalty no longer hold water. Since the collapse of the communist regimes and introduction of the internet into the public domain, the old world order is changing very fast. For a number of reasons there is closer cooperations among nations leading to more integration as evidenced by the creation of such unions as the European Union Organization of American States; the African Union, among others. An inevitable consequence of such integration is that as people move from one country to another either for work, education or other reasons, they acquire the nationalists of new countries whilst retaining and maintaining contacts with their countries of birth. In most cases such people retain very strong affinity with their countries of birth as indicated by the huge monies repatriated by people in Diaspora to their various countries and the fact also that a very large number of these people ultimately return to settle in their countries of birth. Furthermore, the policy is in tune with the development strategy suggested by the vision 2010 committee to the effect that the economy should be “people centred, broad-based, self-reliant, market-oriented, highly competitive and private sector driven with the government as the proactive enables”.27 After all, at all times, “the well being of all the people should be the overriding purpose of governance and the economy”.28 Quoted from N. Omoigui “Dual citizenship in Nigerian Constitution” available online at www.aado.org/../citizenship.html, accessed 02/9/2012. 28 Ibid 27 9 Again, dual citizenship guarantees that Nigerians in Diaspora maintain the link to their family. Citizenship (for self and family) is something many Nigerians who are based abroad for economic reasons cherish extremely strongly and emotionally. An alternative outcome will breach or violate not only the principles of citizenship of Nigeria’s constituent ethnic nations but also breach the principles of citizenship that are practiced in Great Britain 29, the European nation that colonized Nigeria and whose legal usages inform Nigerian jurisprudence. Another aspect is the potential utility of dual citizenship as a tool to appeal to the West African Diaspora abroad, particularly those who left our shores Captives against their will.30 It cannot be over-emphasized that the impact of “foreign-based” dual-citizen Nigerians can be harnessed in political, technological, social-cultural, economic, ecologic, environmental and sporting arenas.31 In British passports, there is a clause that states that “acquisition of a foreign nationality or citizenship by a British national does not imply loss of British nationality”. 30 A similar position is obtainable in Scandinavian countries and in Israel, among others. A foreigner with provable Finnish roots, for example, need only stay six months as a resident to qualify for citizenship under the law of return: N. Omoigui, op.cit. 31 Their role in spots is self explanatory. If there was an opposite provision on dual citizenship during the World Cup, for example, most players in the Nigerian team would not have been to play for Nigeria. The same goes for the Olympics. Indeed, many Third World countries have come to see the advantages of dualcitizenship and have therefore, approved it as a matter of national policy. See for instance, Article 16 of the Constitution of Kenya 2010 which states that “a citizen by birth does not lose his citizenship by acquiring the citizenship of another country. Mexico, a country which shares many similarities with Nigeria is another prominent example. Specifically, the Nationality Law, 1998 allows the preservation of Mexican Nationality, regardless of the acquisition of another nationality or citizenship. This is a re-echo of the President Ernesto Zedillo’s initiative regarding Articles 30, 32 and 37 of the constitution which allows Mexicans to preserve their nationality, regardless of acquisition of another nationality or citizenship. See also the Report of the Constitution Review Commission of Republic of Zambia (2005) which recommends that the constitution should permit dual citizenship only in respect of Zambian citizenship acquired by birth or decent. This is also what is obtainable in the New Zimbabwean Constitution: T. Sibanda, “New Constitution to Allow Dual Citizenship” available online at www.swradioafrica.com/2012/07/091 and at 29 10 On the contrary, it has been argued that “this innovation, whilst taking into consideration, the reality of the situation in which many Nigerians by birth held such dual citizenship, may lead to conflict of allegiance in relation to citizens by registration and especially those by naturalisation. This may be so for example if Nigeria and the country of their citizenship by birth are at war”.32 It is submitted that this argument is sound and logical. Accordingly, this paper aligns with opinion of Mowoe33 to the effect that the provision be reviewed in the above respect and perhaps should be retained only with respect to those who are Nigerians by birth. Conclusion Citizenship is one of the most important statuses in law; because it confers rights and privileges which non-citizens do not enjoy. It also imposes obligations on citizens. The law on citizenship should be explicit and as exhaustive as human foresight allows. Any inadvertent omission in the law may render certain persons in a country stateless. This is particularly so in a country of immigrants or permissive to immigrants. Citizenship requirements are generally standard across most jurisdictions. As a general rule, the constitutions of most countries accord citizenship on the basis of birth, and marriage. This is the position in Namibia, Nigeria, forum.newzimbabwe.com>NEW ZIMBABWE FORUM>GENERAL DISCUSSION>CURRENT AFFAIRS; accessed 02/09/2012. 32 See K. M. Mowoe, Constitutional Law in Nigeria, vol. one (Lagos: B Print, 2005) at 207. 33 Ibid 11 Uganda, Kenya and Ghana. Most of these countries, however, prohibit dual citizenships except in very restricted circumstances such as where the other citizenship is acquired though birth or marriage. This paper has provided some justifications for the current provision on citizenship under the 1999 constitution of Nigeria. In so doing, the paper has compared the position in Nigeria with that in some African and South American countries. They concludes that although the current provision is laudable, it should nevertheless be amended and restricted to only Nigerians who are citizens by birth. In other words, only Nigerians who are citizens of Nigeria by birth should be allowed the converted status of dual citizenship under the constitution. This is so as to prevent conflict of allegiance by those who acquired Nigerian citizenship by naturalisation or registration.