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The Supreme Court Ruling on Electoral Act 2001 and Dual Citizens/Nigerian Citizens Resident Abroad

By Mobolaji E. Aluko, Ph.D.

INTRODUCTION
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 anymore because the Supreme Court has spoken.

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

QUOTE

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.

UNQUOTE

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:

QUOTE

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, ………..

UNQUOTE

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:

QUOTE

(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."

UNQUOTE

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).
Well what was the Supreme Court ruling on Thursday, March 28, 2002? The summary portion that concerns us is the following, with Justice Idris Legbo Kutigi obliging us:

QUOTE

Issue (iii) Claim (iii)

The Court was urged to hold that the National Assembly cannot amend the provisions for qualification and disqualification of candidates as contained in the Constitution and that in accordance with the well established principles of constitutional law, if a legislature enacts a law in identical terms with what has already been enacted by another legislature whose enactments have superior legislative force, then the enactment of the subordinate legislature is void or at least inoperative. The case of ATT. GEN OF OGUN STATE V. ATT. GEN. OF THE FEDERATION (1982) 13 NSCC 1 at 11 per Fatai-Williams CJN was cited in support. The Defendant said that because the National Assembly has the power to make law for peace, order and good government for the Federation, it is in the discharge of the constitutional duty imposed on it by Section 4 of the Constitution that Section 25 of the Act was enacted to ensure orderliness and peace at elections which are indispensable conditions precedent to the attainment of a good government and none of the provisions of the Constitution has been violated by the Act.

I accept the submissions of learned senior counsel for the Plaintiffs and reject that of the Defendant.
Issue (iii) claim (iii) therefore succeeds. It is therefore hereby declared 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 without first of all complying with the requirements of Section 9 of the Constitution. …………………….

The provisions contained in Section 15 to 73 and 110 to 122 except Sections 16, 26 to 41, 43 to 73, 116, 117 and 118(1)—(7) of the Electoral act, 2001 are from the date of the commencement of the Act inconsistent with the provisions of the 1999 Constitution and are accordingly null and void and inoperative.

UNQUOTE

Notice the omission of Section 25 from the exceptions. Thus we find that Issue (iii) Claim (iii) of the States was upheld, while Section 25 was one of the many sections found to be inconsistent with 1999 Constitution!

That spelt the COLLATERAL victory for us dual citizens!

CITZENS RESIDENT ABROAD AND THE ISSUE OF VOTER REGISTRATION

With respect to Nigerians abroad registration, what we have is a PARTIAL VICTORY.

First, there is another section of the Electoral Law 2001 which was left intact by the Supreme Court ruling and which in fact greatly EXPANDS on who can register to vote in Nigeria. Notice the following:

QUOTE

Section 2 of Electoral Law 2001:

(1) A person shall be qualified for registration as a voter if such a person

(a) is a citizen of Nigeria

(b) has attained the age of eighteen years:

(c) is ordinarily resident, works in, originates from or is an indigene of the local government area or ward covered by the registration centre;

(d) presents himself to the registration officers of the commission for registration as a voter within the period stipulated by the commission for registration of voters;

(e) is not subject to any legal incapacity to vote under any laws, Rules or regulations in force in Nigeria……

UNQUOTE

Note that while Section 77 of the 1999 Constitution stipulates only “ residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house,” , this Section 2(1) ( c ) of the Electoral Law 2001 greatly expands Section 77 by including “works in, originates from or is an indigene of the local government area or ward…” That virtually includes everybody who can trace his home to his local government area or ward, and does not only require residency within the local government or ward.

That is an inadvertent blessing to ALL Nigerians, particularly those of us living abroad.

Secondly, in the wake of the Supreme Court ruling and the attendant brouhaha over INEC sleeping on its watch and getting flak for not registering a single new voter since 1998, INEC has now determined that henceforth registration in Nigeria will be a CONTINUOUS process throughout the year. Consequently, “ the period stipulated by the commission” spelt out above in Section 2(d) of Electoral Law 2001 is now ALL YEAR round, as done in other developed countries where once each citizen turns 18, he or she will be able to register at some voter registration site close to his or her residence. In previous exercises, registration had been done over a period of a month or so just PRIOR to general elections. Consequently, if you were not in Nigeria at that particular time to register, you were out of luck with respect to registration and voting later on!

Consequently, in the new INEC guidelines with respect to voter registration, the incapacitation of “* residing in Nigeria at the time of the registration” is therefore no longer so debilitating. After all, since general elections are held between three to four years apart, any citizen resident abroad who has not gone home within those three or four years probably does not deserve to vote!

Thus the new INEC guidelines make registration for Nigerians living abroad easier – provided they choose to go home within a three to four year period.

That is another welcome break.

CITZENS RESIDENT ABROAD AND THE ISSUE OF VOTING

The issue of being able to ACTUALLY vote abroad remains outstanding however. The demand requires a serious re-think.

A reality check was recently brought to my attention. We must note that not ALL Nigerians living abroad reside in the US or Europe or Asia. In fact, millions more than those of us living in those far away destinations actually live within spitting distance of Nigerian borders: in Africa Niger and Mali - and of course the Sudan!

Imagine if all of those were now allowed to vote in Ndjamena and Bamako and Khartoum? How could you tell them apart from people voting in Minna and Bauchi and Kano? Or Modakeke? Imagine how certain votes could actually legitimately swell, leading to unintended consequences?

So what is my present position? If we Nigerians abroad broadly conceived wish to vote, let us book our plane tickets or swim the oceans – or ride our carmel caravans - and go home within the borders of Nigeria so to do.

That is my new position – and I am sticking with it.

So, Nigerians in the Diaspora, dual or mono, let us move on, albeit cautiously in light of uncertainties about Electoral Law 2002 and political violence in the country, and fully take part in the Electoral Process 2003, as we thank the Supreme Court for our new relief.

BIBLIOGRAPHY

http://www.ngex.com/personalities/voices/mqb111201baluko.htm

MONDAY QUARTERBACKING The Electoral Bill and Dual/Non-Resident Nigerian Citizens
Mobolaji Aluko

November 12, 2001

http://www.ngex.com/personalities/voices/se111701baluko.htm

SATURDAY ESSAY: Clarifying Some Issues on Voting/Dual Citizenship

Mobolaji Aluko

November 17, 2001

http://www.nigerdeltacongress.com/narticles/national_assembly_the_president_.htm

National Assembly, the President and the Electoral Law

Mobolaji Aluko

December 2001