Dedicated to Nigeria's socio-political issues
October 3, 2007 - December 2, 2007
The Supreme Court Ruling on Electoral Act 2001 and Dual Citizens/Nigerian Citizens Resident Abroad
Mobolaji E. Aluko, PhD
Burtonsville, MD, USA
I have waited this long to gloat so as not to jinx the process, but with so many more Nigerians in the Diaspora announcing daily their intentions to go back home to contest various elections in Nigeria, I can and should wait no more. I believe that it is safe to gloat, because despite the current delay in passing the Electoral Law 2002 (which seeks to correct many defects of Electoral Law 2001), neither the National Assembly or the president can hurt Dual/Non-Resident Nigerian citizens any more, because the Supreme Court has
Why the present gloating?
Well, in a series of previous essays, I had discussed how our 1999 Constitution and the Electoral Act 2001 which was signed stealthily (complete with an illegal insertion of an obnoxious
Clause 80(1)) on Thursday December 6, 2001 by President Obasanjo, with the collusion of Senate President Anyim, was vexing not only to Nigerian citizens resident abroad, but also to dual citizens wherever they may be living. The twin vexations were as follows:
1. Nigerian citizens resident OUTSIDE Nigeria currently cannot register abroad and hence cannot vote. This is due to a provision of the 1999 Constitution;
2. The Electoral Law 2001 contained the novel explicit ban on dual citizens of Nigeria being able to contest in elections in Nigeria
1999 Constitution Section 77.
(2) Every citizen of Nigeria, who has attained the age of eighteen years *residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house* shall be entitled to be registered as a voter for that election.
This provision had been left intact in Electoral Act 2001. One had hoped that its enactors would have found a way to expunge the underlined phrase (between the stars) because it is what explicitly hobbles Nigerian citizens residing abroad from easy registration, following which another section of the Electoral Law makes the obvious requirement that you vote where you are registered.
The ban on dual citizens is contained in the following Section 25 of the Electoral Law 2001:
Electoral Act 2001 Section 25
(1) Every political party shall not later than 90 days before the date appointed for a general election under the provisions of this Act, submit to the commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections.
(2) The list shall be accompanied by an Affidavit sworn to by each of the candidate at the High Court of a state, indicating that he:
a) is a citizen of Nigeria and has attained the age of 35 years for election into the Senate, 30 years for election to the House of representatives, and House of Assembly of a state,
b) is a registered voter,
(c ) has been educated up to at least school certificate level or its equivalent,
(d) is a member of a political party and is sponsored by that party,
(e) has produced evidence of payment of tax as and when due or tax exemption for a period of three years preceding the year of the election,
(f) has not voluntarily acquired the citizenship of a country other than Nigeria, and has not made a declaration of allegiance to such country,
(g) has not been adjudged to be a lunatic or otherwise declared to be of unsound mind under any law in force in any part of Nigeria,
(h) is not under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by such a court or tribunal or
submitted by a competent authority for any other sentence imposed on him by such a court,
(i) within a period of less than ten years before the date of the election concerned, he has not been convicted or sentenced for an offence involving dishonesty or he has not been found guilty of a contravention of the code of conduct.
(j) is not an undischarged bankrupt, and has not been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria,
(k) being a person employed in the public service of the federation or of a state, he has resigned, withdrawn or retired from such employment 30 days before the date of the election,
(l) is not a member of a secret society,
(m) has not been indicted for embezzlement or fraud by a judicial commission of inquiry or an administrative panel of inquiry or a tribunal set up under the tribunals of inquiry act, a tribunal of inquiry law, or any other federal or state government law which indictment has been
accepted by the federal or state government respectively, ………..
Section 25 (2) (f) is therefore the culprit subsection, which seems to equate dual citizenship with tax evasion, pending death sentence, conviction for dishonesty, adjudged bankruptcy, embezzlement, cultism – or sheer lunacy.
Our argument in the essays quoted was that both of these provisions were INCONSISTENT with Sections 25, 28, 66, 107, 137, 142 and 182 of the 1999 Constitution, which placed no such restrictions on ANY full-fledged Nigerian citizens, resident or non-resident, dual or not. Hence we boldly held that Section 77(2) of the Constitution and Section 25(2)(7) of Electoral Law 2001 were null and void and inoperable.
Some of us were prepared to file a class action suit – financial resources permitting of course - on behalf of Nigerians abroad in the fullness of time. But now, following the March 28 Supreme Court Ruling on the Electoral Law 2001,
we really don’t have to: we can declare collateral victory and go home happy!
How is that?
DUAL CITIZENS AND OFFICE-HOLDING
Well, we got lucky: the 36 states of the Federation had quite a higher stake than ourselves, and on Monday, January 21, 2002, they filed suit against the Federal Government, claiming from the Supreme Court:
(i) A declaration that no law enacted by the National Assembly can validly increase or otherwise alter the tenure of office of elected officers or as Councillors of Local Government Councils in Nigeria except in relation to the Federal Capital Territory alone.
(ii) A declaration that the National Assembly has no power except in relation to the Federal Capital Territory alone to make any law with respect to the following matters or any of them, to wit:
(a) the conduct of elections into the office of Chairmen, Vice Chairman or Councillors of a Local Government Council in Nigeria
(b) the division of Local Government Areas into wards for purpose of election into Local Government Councils in Nigeria
(c) the qualification or disqualification of persons as a candidate for election as Chairman, Vice Chairman or Councillor of a Local government Council in Nigeria
(d) the date of election into a Local Government Council and (e) the prescribing of the event upon the happening of which a Local Government Council stands dissolved or the Chairman or Vice Chairman of a Local Government Council vacates his office or a Councillor or member thereof
vacates his seat in the Local Government Council.
(iii) A declaration that the National Assembly has no power to make any law with respect to the qualification or disqualification of candidates for elections to be held pursuant to the provisions of the Constitution of the Federal Republic of Nigeria, 1999 without complying with the requirements of Section 9 of the
Constitution of the Federal Republic of Nigeria, 1999.
(iv) A declaration that save and except for laws for the Federation with respect to:-
(a) the registration of voters, and
(b) the procedure regulating elections to a Local Government Council.
(v) it is the House of Assembly of a State and not the National Assembly which has the power to make laws with respect to matters relating to or connected with elections to the office of Chairman or Vice Chairman of a Local Government Council in that State or to the office of Councillors therein.
(vi) A declaration that the provisions contained in Sections 15 to 73 and 110 to 122 of the Electoral Act, 2001 are, from the date of the commencement of the said Act, inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999, and are accordingly null
and void and inoperative.
(vii) A declaration that by reason of the provisions of the Electoral Act 2001 which are inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, the said Electoral Act is rendered null and void and inoperative in its entirety."
Thus the real beef of the State governments was not Nigerians in the Diaspora, but it was over encroachment of their powers over local governments by the National Assembly! Fortunately,
however, Claim (iii) (which was also framed as Issue (iii) arising for determination before the Supreme Court ) was the one collaterally pertinent to dual citizens protesting Electoral Act 2001 Section 25(2) (f).
MONDAY QUARTERBACKING The Electoral Bill and Dual/Non-Resident Nigerian Citizens
November 12, 2001
SATURDAY ESSAY: Clarifying Some Issues on Voting/Dual Citizenship
November 17, 2001
National Assembly, the President and the Electoral Law
Mid-Week Essay: Before We Applaud Over Electoral Law Reversal…..
Mobolaji E. Aluko
January 3, 2002
Political Dishonesty And Judicial Impropriety
This Day (Lagos) ANALYSIS January 14, 2002
Electoral Act: Govt gets 7 days to file defence —Verdict in March
Vanguard Tuesday, 22nd January, 2002
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