A Legal View On Atiku’s Nigerianness By Koye-Ladele Mofehintoluwa

Of recent, electoral outcomes in Nigeria have played out in a format that seems scripted. An observer would be forgiven should he believe a dramatist somewhere has written a play that is now acting out on the legal and political stage.

Just of recent, in Osun State, issues on the election in conduct and outcome have been raised by both parties — the APC on the grounds of the candidate of the PDP being ineligible by educational qualification along with allegations of examination malpractice while the same election is being contended by the PDP with allegations of rigging, voter intimidation  vis-a-vis the perceived ultra vires action of cancellation of some polling units which hangs on INEC. This issue is ready for another stage in the hierarchy of courts and would not be discussed here.

In Imo, the contention is on if a Returning Officer can come out to release different results for the same senatorial election he presided over, claiming one of the results was declared under duress. The legal contention of this matter would not be discussed here too.

In Nigeria of recent, we have had the back and forth on the suspension of a CJN. Nigeria had the recent contention on a person who won an election and died before he was sworn-in. 

The instances earlier mentioned are a reference to how legal intrigues are playing out in Nigeria’s political arena in a manner that would strengthen our democratic institutions with a backlog of case-laws that will guide us. The present topic of interest is on if Atiku is a Nigerian. 

Atiku’s nationality dispute is an interesting legal contention. The background is that he was born in Jada, Adamawa, in a local government that was not part of Nigeria until after 1960. The region opted to become part of Nigeria through a vote or plebiscite. This was in February 1961. Atiku was born prior to the plebiscite.

The dispute on his citizenship (or eligibility to contest for President) essential revolves around;

1. Since the constitution requires in Section 131(a) that a person who qualifies to run for President should have been born in Nigeria. Does Atiku fulfill this requirement having been born in a part of Nigeria which did not become so until 1961 and not 1960? Note that the Constitution provides in Section 25 that a citizen of Nigeria should have been born in the geographical area that constituted Nigeria before the date of independence (1960) and in another of the three subsections provides for those born in Nigeria after 1960 which would include Atiku’s descendants and that of others in the affected Local Government. The third subsection in S25 covers those born outside Nigeria to Nigerian parents. 

While S26 and S27 provide other means to acquire Nigerian citizenship asides birth. The constitution is clear on the President having been born in Nigeria (as at or after 1960) or to Nigerian parents outside Nigeria and not having been registered or naturalised, which are the other means.

2. Since 138 (1) of the Electoral Act 2010 provides as a ground for contesting the result of an election the ineligibility of a candidate ab initio- “that a person whose election is questioned was at the time of the election not qualified to contest”. Should Atiku even have been allowed to contest considering the uncertainty around his “Nigerianess”? If the APC counsels manage to prove this. It would mean that Atiku was never qualified to contest in the first place. Thus, he cannot even contend the result he is now doing.

3. Having become part of Nigeria, does it not include too for the people of Jada the right to vote and be voted for? Note that this third point is the strongest for Atiku’s claim to citizenship. His people at some point in their history have chosen Nigeria and are thus participants in Nigeria’s franchise which as a principle of democracy makes them eligible to vote (and also be voted for) in Nigeria. 

It would be inconsistent to refuse the people participation in the electoral process with the right to vote and be voted even after they have opted by plebiscite to be part of Nigeria and they have become absorbed into the Nigerian federation. 

What is unclear as a matter of law is if the decision to be Nigerian taken at that plebiscite only affects the descendants of the Jada environs and not those already alive at the time of the plebiscite who prior the plebiscite were in Northern Cameroon. Atiku was born in 1946. His people made the decision to be part of Nigeria in 1961. Did he become a Nigerian too in 1961 with the rest of his people or only his children are Nigerians having been born after 1961 inside Nigeria?

It may appear quite strange and unreasonable to raise issues on the citizenship of a person after he has served in the Customs service of a country and has become a Vice President of the Republic having attained one of the most important titles of GCON attached permanently to his name. Having invested so much in Nigeria in economic terms and having built himself into a political fort in Nigeria, why will anyone doubt his claim to citizenship? I shared this sentiment till I came in contact with the background of the story.

Well, the judge does not share the sentiments but rather looks at the strength of arguments. There may be found merits to the arguments of the APC counsel that Atiku is not a Nigerian if the law takes the path of coldness for which it is known and lays its concern on when Atiku was born and where that region belonged. He was born outside Nigeria in a part that later became Nigeria. 

There is no known Act or parliamentary resolution nor has any document surfaced stating details of the 1961 plebiscite and the implications of it in terms of citizenship. The issue may have been raised in the 1963 constitution which had a S10 that contained Special Provisions on Northern Cameroons. This constitution is out of use and the said provision in S10 does not clearly settle the question of the citizenship of the people of Northern Cameroon who opted for Nigeria in the plebiscite.

The constitutional requirement to contest for President is having citizenship by birth and Atiku was not born in Nigeria. He was born in Northern Cameroon. The area has now become Nigeria.

As earlier stated, it would be unrealistic for a judgement to lay aside the decision of the plebiscite to be part of Nigeria. The plebiscite was conducted for the people of that area to decide which identity they wanted to adopt. They chose Nigerian. 

If the Constitution of 1999 does not take this plebiscite into account in the drafting of the qualification for the office of President to include people not born in Nigeria but became Nigerian after a plebiscite, the courts need to take notice of this plebiscite and discard the noninclusion of the eligibility of the people who became Nigerians by the plebiscite of 1961 who not having been born in Nigeria became Nigerians by a plebiscite.

The plebiscite outcome should be viewed as equivalent to the citizenship by birth as the people then chose to become Nigerians when they could have stayed with Cameroon and are thus qualified to enjoy all the rights that come with being Nigerian which includes as it concerns this immediate topic the right to vote AND BE VOTED FOR.

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