By Mohammed Adamu
“Alegari non debut, quod probatum non relevat”
(Meaning: ‘What is not relevant when proved, needs not be alleged in the first place’)
Two things I deduced from Fasola’s Channels interview over Tinubu’s citizenship status are that the Minister, though a lawyer and a Senior Advocate, he was not sure (or did not want to disclose) whether Tinubu has dual citizenship or whether in fact the Nigerian Constitution allows such in the first place.
I do not know if Tinubu has dual citizenship; nor can I say with certainty whether or not what is peddled as his Guinean passport is real. But what I know with certainty is that even if it is true he has dual citizenship, it goes to no issue because the Constitution of Nigeria allows citizens (by birth) to have dual citizenship.
As a maxim of law says: ‘allegari non debut, quod probatum non relevat’; and which means: ‘whatever is not relevant when proved, needs not be alleged in the first place’! Why labor to prove a thing when even doing so still does not make an issue? Why dissipate energy trying to prove that Tinubu has dual citizenship when the Constitution in fact allows it?
First, let’s look at what it mean to say a person is a Nigerian ‘citizen by birth’? Simply put it is to distinguish such a person from other classes of persons who enjoy other ‘inferior’ forms of Nigerian citizenship. There are 3 classes of Nigerian citizenships, recognized by the Constitution. They are listed under Sec 25 in order of their superiority thus:
A, Citizenship by birth, (S.25) of which there are
-category 2 and
B, Citizenship by ‘registration’ (S.26) which is:
-subject to S.28 on ‘dual citizenship’, and
C, Citizenship by ‘naturalization’ (S.27), also:
-subject to S.28 on ‘dual citizenship’.
Technically, a fourth class of citizenship in Nigeria is ‘dual citizenship’. Let’s analyse them.
A) CITIZENSHIP ‘BY BIRTH’ (Sec 25)
There are 3 categories of this as follows:
CATEGORY 1, (Sec 25(a): the Constitution says: “every person born in Nigeria BEFORE the date of independence (and) EITHER of whose parents or ANY of whose grandparents BELONGS or BELONGED to a community indigenous to Nigeria” (IS A NIGERIAN CITIZEN ‘BY BIRTH’).
And further expatiating on this the Constitution adds: “a person shall not become a citizen of Nigeria by virtue of this section (by birth), if NEITHER of his parents NOR ANY of his grand parents was born in Nigeria”.
What it means is that citizens ‘by birth’ under Sec 25(a) are PRE-independence children who derived their status from ancestral links to indigenous Nigerian communities.
CATEGORY 2, (Sec 25(b): the Constitution says: “every person born in Nigeria AFTER the date of independence (and) EITHER of whose parents OR ANY of whose grandparents is a citizen of Nigeria” (THAT PERSON IS ALSO A NIGERIAN CITIZEN ‘BY BIRTH’).
Meaning again, that citizens ‘by birth’ under Sec 25(b) are POST-independence children who derived their status from PRE independence parents (who previously derived theirs from ancestral links to indigenous Nigerian communities). Simply put it is citizens ‘by birth’ under category 1 (Sec 25(a), who are constitutionally capacitated to sire citizens ‘by birth’ under category 2 (Sec 25(b).
CATEGORY 3, (Sec 25(c): the Constitution says: “every person born outside Nigeria (and) EITHER of whose parents is (also) a citizen of Nigeria” (‘BY BIRTH’). Meaning any person (male/female) who qualifies (under any of CATEGORIES 1 and 2) as ‘citizen of Nigeria by birth’, and who, while living and married abroad (whether to a Nigerian or non-Nigerian) the children of such marriage are citizens ‘by birth’.
Now we are done with the 3 categories of ‘Citizenship by birth’. The second type or class of citizenship is that by ‘Registration’:
B) CITIZENSHIP ‘BY REGISTRATION’ (Sec 26) This Section, unlike Section 25 (under ‘citizenship by birth’), is expressly made “subject to the provisions of Section 28 (on dual citizenship) and which we’ll return to later, to answer the question: whether Nigerians are entitled to dual citizenship.
Section 26 reads: “a person to whom the provisions of this section apply (usually a non-Nigerian citizen either with ancestral links or with conjugal affinity to other Nigerian citizens) may be registered (on application to the President), as a citizen of Nigeria, if the President is satisfied that he:
(a) is of good character, and (b) has shown clear intention/desire to be domiciled in Nigeria; and (c) has taken the Oath of Allegiance (prescribed in the 7th Schedule of the Constitution).
This applies strictly to:
(a) “any (non-Nigerian) woman who is or has been married to a citizen of Nigeria; (as in any non Nigerian wife (current or ex) of a Nigerian husband); or
(b) “every person of full age and capacity born outside Nigeria, any of whose grandparents is a citizen of Nigeria” (as in any non Nigerian born outside Nigeria, and ANY of whose grandparents is a citizen (whether or not ‘by birth’). Such persons may apply for citizenship by Registration.
Meaning also that any non-Nigerian child who has any Nigerian GRANDparent that is a citizen of Nigeria (by ‘registration’, not by birth), may also apply under this Section 26(b) to be a citizen also, ‘by registration’.
Now we are done with ‘Citizenship by Birth’ and ‘Citizenship by Registration’. The third and last class of citizenship is:
C) CITIZENSHIP by NATURALIZATION (Sect 27) Like Sect 26 (by Registration’), Citizenship by Naturalization is also expressly made “subject to the provisions of Section 28 (on dual citizenship). But first a summary of the naturalization process:
Under this Section any non-Nigerian “may apply to the President for the grant of a certificate of naturalization” (which when granted, has the effect of conferring on him citizenship of Nigeria) not ‘by birth’, or by ‘registration’ but by ‘naturalization’.
The requirements here vary only slightly from those under ‘Citizenship by Registration’, but both variously require that the President is convinced that the applicant:
1, is of full age and capacity, 2, is a person of good character, 3, has shown clear intention/desire to be domiciled in Nigeria, and 4, in the opinion of the Governor of the State he/she proposes to reside, he is acceptable and has been assimilated into their way of life.
There are other more elaborate requirements such as the person’s useful contribution or potential to so contribute to the advancement, progress and well being of Nigeria and the duration of his stay in Nigeria.
DUAL CITIZENSHIP (Section 28):
We have seen that, of the three classes of citizenship recognized by the Constitution (by ‘birth’, ‘registration’ and ‘naturalization’), only the latter two (‘registration’ and ‘naturalization’) are made expressly subject to the provisions of Section 28 on Dual Citizenship.
The enjoyment of ‘citizen by birth’ alone is not made subject to the provisions of Section 28 on dual citizenship; meaning that the restrictions on dual citizenship that Section 28 imposes on those who become Nigerian citizens by ‘registration’ and ‘naturalization’ are not placed on those who are citizens ‘by birth’.
Section 28(1) reads: “….a person shall forfeit forthwith his Nigerian citizenship if, NO BEING A CITIZEN OF NIGERIA BY BIRTH, he acquires or retains the citizenship or nationality of a country of a country other than Nigeria, of which he is not a citizen by birth”.
Note the exemptive phrase here “… NOT BEING A CITIZEN OF NIGERIA BY BIRTH” -which bears the import that only Nigerian citizens by birth (not those by Registration or naturalization), may ‘ACQUIRE or RETAIN the citizenship or nationality of another country, of which they are not citizens by birth, without the consequences of forfeiting their Nigerian citizenship.
It also means that Section 28 is thus specific in its reference only to Nigerian citizens by ‘registration’ and by ‘naturalization’ as those who (not being citizens by birth), cannot ACQUIRE or RETAIN the citizenship or nationality of another country, unless it is the country of which they are citizens by birth.
Meaning that a Nigerian citizen by ‘registration’ or naturalization, in addition to enjoying either of those statuses may also be a citizen of his own country of birth, just like a Nigerian citizen by birth may also be a registered or naturalized citizen of another country, not being his own country of birth.
RECONCILING SEC 28(1) WITH SEC 137(a) (on disqualification of Presidential candidates):
What then is the import of Sec 137(a) which says that “A person shall not be qualified for election to the office of President if:
“SUBJECT TO THE PROVISIONS OF Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country”
Here also the operative phrase is “SUBJECT TO THE PROVISIONS OF Sec 28” (on dual citizenship). Meaning that no candidate for election to the office of President, who is a Nigerian citizen by birth (not by registration or naturalization), stands affected by this provision.
Meaning that the Constitution having allowed (under Sec 28(1), Nigerians by birth, the right to dual citizenship, and Section 137(a), being also subject to Sec 28(1), entitles Tinubu, who is a Nigerian citizen (by birth), to the enjoyment, if he wishes, of dual citizenship.
To allege therefore that Tinubu has dual citizenship can only prove the maxim right that “whatever is not relevant when proved, needs not to have been alleged in the first place.