Can a Candidate Be Disqualified for Dual Citizenship?

The dual citizenship allegation is the latest in the series of controversies surrounding the President-elect, Senator Bola Tinubu. While his critics claim it is enough to bar him from the presidency based on Section 137 of the Constitution, his supporters think otherwise. Alex Enumah examines the constitutional implications

For the President-elect, Bola Tinubu, there is no end to the controversies trailing his past. Last week, social media went abuzz with the dual citizenship allegations against him with his critics claiming that dual citizenship disqualifies him from the presidency based on Section 137 of the 1999 Constitution.

The fresh controversy started when an independent journalist, David Hundeyin, uploaded images of a Guinean diplomatic passport bearing “Bola Ahmed Tinubu” on his Twitter account. The passport, which also carried Tinubu’s image was said to have been issued in October 2015. It however expired in October 2020.

There had been controversies surrounding Tinubu’s age, name, educational background, health status, businesses, hometown and past links with drug trafficking, all of which have not been cleared.

Tinubu’s emergence as President-elect in the February 25 presidential election has been challenged by some of his opponents, including his two main rivals, Atiku Abubakar and Peter Obi, in a battle that would drag up to the Supreme Court in a span over 240 days.

The dual citizenship dimension, which has caused the former governor of Lagos State to trend, has dominated the social media amid the ongoing election petition trial because of potential legal actions over alleged constitutional violations.

With the latest development, Tinubu is suspected to have committed perjury, having told the Independent National Electoral Commission (INEC) in his form EC-9 – application for the presidency – that he never obtained citizenship of another country. He reportedly ticked “NO” in response to “Have you voluntarily acquired citizenship of any other country” posed by INEC in the form.

He also appended his signature on the form swearing that the information given on the form was “correct, true and to the best of my knowledge.” While it may not amount to constitutional violations that Tinubu, who was born in Nigeria, carries dual nationality, he is expected to fight to extricate himself of perjury accusations.

Tinubu faced a similar legal conundrum shortly after he was elected governor of Lagos in 1999. He had allegedly made false claims about his primary, secondary tertiary education.

Though he had constitutional immunity from criminal prosecution, he also claimed at the time that he did not knowingly make false claims on the INEC document, as the document was filled on his behalf by a political ally.

The question of whether or not a Nigerian who holds citizenship of another country is qualified to contest for political offices in Nigeria is not novel. The question has been part of Nigeria’s political configuration, particularly since 1999 when democracy was enthroned in the country.

The salient questions are: Are persons with dual citizenship prohibited from contesting for any election in Nigeria? Can the President of Nigeria have dual citizenship?

One of the chapters of the Nigerian Constitution contains eight sections dedicated to issues of citizenship. Specifically, Section 28 of the constitution of Nigeria is on issues of dual citizenship. Also, many other sections in the constitution refer to citizenship as a condition for certain rights and privileges.

Among the sections that refer to Section 28 of the Constitution (that is, relating to dual citizenship) are sections relating to disqualification/requirements for persons to be elected into offices at federal and state levels. The specific sections are Section 66 of the constitution which is on disqualification/requirement for election into the National Assembly (the House of Representatives and the Senate); Section 107 of the constitution which is on disqualification/requirement for election into the House of Assembly in any state in Nigeria; Section 137 of the constitution which is on disqualification/requirement for election of the President of Nigeria and section 142 for Vice-President of Nigeria; and Section 182 of the constitution which is on disqualification/requirement for election of the Governors and section 187 for Deputy-Governors in states in Nigeria.

All the above sections make citizenship a requirement for any person to be elected into legislative or executive office in Nigeria. The sections of the constitution cited above refer readers back to Section 28 of the constitution.

The first requirement to be qualified to be President of Nigeria and for some elective positions is that the candidate must be a citizen by birth. However, there is a section of the constitution which appears to provide that dual citizens are exempt from becoming Nigerian Presidents. Section 137 paragraph (a) of the Constitution provides that subject to the provision of section 28 of this Constitution, anyone who voluntarily acquired the citizenship of a country other than Nigeria or, except in such a case as may be prescribed by the National Assembly, has made a declaration of allegiance to such other country. It should be noted that for a dual citizen to be disqualified he must have voluntarily acquired citizenship of another country.

Also, section 28 goes on to make the disqualification of a dual citizen subject to Section 28 of the Constitution. Section 28 (1) talks about individuals who acquire Nigerian citizenship (by means other than birth) and go on to acquire or retain citizenship of another country (acquired other than by birth), such individuals shall forfeit Nigerian citizenship or shall renounce Nigerian citizenship.

In simple terms, Section 28 says that individuals who are disqualified from holding dual citizenship in Nigeria, are those who have citizenship of another country, which was obtained by either naturalisation or registration and then seek to acquire a form of Nigerian citizenship (and that form is by registration or naturalisation) and vice versa.

That individual has to renounce the citizenship that he held prior to the application for Nigerian citizenship, (if he is not a citizen by birth) or lose his Nigerian citizenship when he wants to obtain citizenship in another country.

In other words, only citizens by birth can acquire citizenship of another country and they are not required to renounce their Nigerian citizenship except that other country requires such renunciation.

Therefore, Section 137 of the constitution seems redundant because citizens who acquired citizenship by naturalisation or registration (which it refers to) can never be President as the first requirement for candidates for the presidency as contained in Section 131 of the constitution is that such a person must be a citizen by birth.

The above discussed requirement for the presidency has not been tested by Nigerian courts.

However, there have been issues relating to the dual citizenship of candidates for the National Assembly. These issues came up in Anthony George Ikoli v. Ben Murray Bruce and Willie Ogbeide v. Arigbe Osula & ors.

It should be noted that the constitutional requirements discussed above for an aspirant to the presidency are almost the same as that of an aspirant to the National Assembly. The only difference is that the aspirant has to be only a Nigerian citizen; there is no mention of the type of citizen.

In the two cited cases, the same issue came up; individuals were challenging the elections of the elected candidates (amongst other grounds) on the ground that the respondents had dual citizenship. In other words, though they were Nigerian by birth, they had sworn allegiance to other countries (United States of America).

The Court of Appeal in Ogbeide’s case held that with sections 25, 26 and 27 of the constitution, 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 Representative on the ground that he holds such dual citizenship.

Unlike Section 137 which appears to be redundant for presidential aspirants, Section 66 which contains similar provisions is not. This is so because, since every citizen can aspire to be a member of the National Assembly, it therefore means that some of them can be caught in the web described in Section 28 which Section 66 like its counterpart 137 refers to.

Therefore, the only question Tinubu may likely have to answer is to explain why he allegedly told INEC in form EC-9  that he never obtained citizenship in another country. 

It remains unclear whether the LP, PDP and the other parties could introduce the argument to favour their prayers at the presidential elections petition court.

Though the 21-day window for amending petitions has passed,  if the presiding judges consider their argument to be sufficiently compelling, the deadline may be extended or waived.

It would be recalled that during the build-up to the presidential election, human rights activist and lawyer, Mr. Kayode Ajulo, had warned President Muhammadu Buhari and the National Chairman of APC, Senator Abdullahi Adamu, against the danger of picking a presidential candidate with dual citizenship.

Ajulo said there was a plot by the opposition to ensure that the APC was disqualified based on this just as was done in the Bayelsa Governorship race in February 2020.

According to Ajulo in a letter he wrote to Buhari, some of the aspirants either had dual citizenship or criminal records, which could be used in disqualifying the APC.

Ajulo then asked the APC to take into consideration the 1999 Constitution specifically Chapter VI, Part 1, Section 131 and which outlines the basic requirements to be met by a candidate to be eligible for an election into the office of the President in Nigeria. He said among others that these requirements include that the aspirant must be a citizen of Nigeria by birth.

Ajulo reportedly added: “Section 137 of the same constitution as amended, goes further to illuminate this matter by providing for several situations which doth render a candidate ineligible to be elected as the President, stating that a candidate will be ineligible: If he/she has voluntarily acquired the citizenship of a country other than Nigeria or has declared allegiance to such other country.”

However, the Minister of Works and Housing, Babatunde Fashola (SAN), has argued that the 1999 Constitution does not bar Nigerians with dual citizenship from becoming president of Nigeria.

Fashola, while speaking during a television programme, said: “I know he (Tinubu) carries a Nigerian passport. I don’t know about dual citizenship. I know he resided abroad when he went into exile. I don’t know if they gave him American citizenship. What does that have to do with the results of the election? The last time I checked, I think the Nigerian constitution allows you to have dual citizenship. Doesn’t it?”

He, however, added that he needed to check what the constitution actually says on the issue of dual citizenship.