DUAL CITIZENSHIP CONSTITUTES NO BAR TO IWU HOLDING OFFICE AS INEC CHAIR

DUAL CITIZENSHIP CONSTITUTES NO BAR TO IWU HOLDING OFFICE AS INEC CHAIR

By: Aloy Ejimakor & Obi Mbanaso

This piece is intended as an opposite view to any notion that Professor Maurice Iwu’s dual nationality or citizenship (of Nigeria by birth and the United States by naturalization) constitutes a bar to his holding office as Chairman of INEC. That it is wrong is so self-evident and trite, yet it is sadly the sole basis upon which the Action Congress/Atiku (through Ricky Tarfa, as counsel of record) has brought suit seeking to have Iwu removed from office as Chair of INEC.

The core constitutional provisions on dual citizenship and any effect it might have on qualification to hold certain public offices are found in Section 28 (1); Section 66 (1) (a); Section 153 (1) (f); and Section 156 (1) (a) of the 1999 Constitution now in force. These sections spelt out the constitutional consequences of dual nationality but also saw fit to place specific and clear limitations on those consequences.

Section 153 (1) (f) provides that the Independent National Electoral Commission which Iwu heads shall be one of the bodies “established for the Federation”. And Section 156 (1) (a) provides that “No person shall be qualified for appointment as a member of any of the bodies aforesaid if – he is not qualified or, if he is disqualified for election as a member of the House of Representatives”.

Section 66 (1) (a) provides that: “no person shall be qualified for election to the Senate or House of Representatives 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, has made a declaration of allegiance to such country”

Section 28 (1) provides that: “Subject to the other provisions of this section, a person shall forfeit forthwith his Nigerian citizenship if, not being a citizen of Nigeria by birth, he acquires or retains the citizenship or nationality of a country other than Nigeria, of which he is not a citizen by birth”.

The legal action by the AC/Tarfa is primarily propelled by an amazing misreading of section 66 or a reading that deliberately excised the operative phrase: “subject to provisions of section 28 of this Constitution”. Additionally, the petitioners also ignored a critical sentence in section 28 that contained a prohibition against applying the dual citizenship bar to a “citizen of Nigeria by birth”, of which Professor Maurice Iwu is one.

Our reading of these sections as they pertain to Maurice Iwu and his qualification to hold office as INEC Chair is in opposite to Tarfa’s, and that is: The bar found in Section 28 of the Constitution is not applicable to Iwu because he is a citizen of Nigeria by birth. The negative consequence of this section is intended to be operate against only those Nigerians who acquired foreign citizenship without first being citizens of Nigeria by birth or lineage (such as citizens of Nigeria by naturalization or registration).

Taken further, even if Iwu is also a citizen of the United States by birth (which he is not), he still would be eligible to hold high office provided he is also a citizen of Nigeria by the other means saved by the Constitution such as by derivation, lineage or aboriginality – through his parents being citizens of Nigeria by birth (hailing from Imo State) or by being borne of Igbo stock, which is one of the tribes aboriginal to Nigeria. By the same interpretation, Iwu’s children and many others borne in the Diaspora of Nigerian parents are all eligible to run for the House of Representatives and thus hold other high offices such as INEC Chair.

Therefore, assuming that Iwu acquired citizenship of United States by naturalization and also subscribed to some oath of allegiance to the United States, his right to hold office as INEC Chair is saved by the sheer fact that he also holds Nigerian citizenship by birth and not by the other discretionary means such as by registration or naturalization.

The plain meaning of all the pertinent sections read together demonstrates that Section 28 is paramount and controlling and unambiguously so, as found in the limiting language rendering the broad sentence of Section 66 subject to the saving sentence of Section 28. In other words, even if Iwu voluntarily acquired United States citizenship or made a declaration of allegiance to the United States, he is still eligible to hold office as someone qualified for election to either the Senate or House of Representatives simply because he is a Nigerian citizen by birth and not by the other means not saved.

In other words, Iwu would have been disabled only if he is a Nigerian citizen by other means such as through any of the discretionary grants already mentioned. So both Sections 28 and 66 must be read together and interpreted to conform to the plain meaning of the black letters expressly limiting the overbroad application of Section 66.

Further, sections 153 and 156 cannot be read and understood without first referring back to Section 66 where the elements of the said qualification are clearly spelt out. And once you pedal back to Section 66, the plain language immediately compels you to again go back to Section 28 where the Constitution contained a proviso intended by the framers and the people of Nigeria as a shield against denaturalization of any Nigeria by birth for merely acquiring the citizenship of another country by naturalization.

Therefore, the language of section 28 controls all other related provisions and saved the day for any Nigerian citizen by birth to remain eligible to hold the enumerated offices notwithstanding the concurrent presence of citizenship of, or some oath of allegiance to another country. The only possible situations where any Nigerian citizen may be barred would be one of the few cases where Nigerian citizenship was acquired by means other than by birth or lineage, which is no where near-applicable to Iwu.

Thus, Professor Maurice Iwu is eligible by any interpretation of the Nigerian Constitution to hold office as Chairman of INEC. The claim by Action Congress/Ricky Tarfa that the constitution disqualifies Iwu is deceitful and exhibits a blatant abuse of the judicial process, if not a clumsy portrayal of some nasty desire to get at Professor Iwu at all costs.

Ejimakor & Mbanaso are US-based Lawyers alloylaw@yahoo.com

MORE REASONS WHY MAURICE IWU PREVAILED ON SUPER TUESDAY

MORE REASONS WHY MAURICE IWU PREVAILED ON SUPER TUESDAY

By: Prince Femi Omoyole

Apart from the many legalisms cited by the tribunal in its dismissal of the petitions against Iwu’s declaration of Yar’Adua as president, I have many reasons of my own why I believe that Yar’Adua stood the best chance of winning the presidential poll. Those reasons are to be found aplenty in the events that occurred in the period before the elections, and they had absolutely nothing to do with Maurice Iwu or any rigging or irregularity. Let us now candidly examine those reasons in seriatim.

Atiku’s problems and eventual fall stemmed from his bitter split with OBJ which set off a chain of adversities that included his grave but contested indictment for corruption by the EFCC, his expulsion from the PDP, the censure from the National Assembly for corruption, his unwise protracted battles over some spats he should have just ignored, and his take-no-prisoners tactics to boot. The INEC and Iwu he loves to blame for all his woes acted within extant legal authority to disqualify him pursuant to the written advise of the then AGF Bayo Ojo and a damning ruling by the Court of Appeal. Nigerians may have humored him at his many rallies but we all knew that he lost the election before it began because he no longer possessed what it took to have won it against Yar’Adua and a formidable PDP. Atiku’s pet PDM was wrenched from him, not by Iwu, but by a combination of system forces arising from the political and legal war he and the system levied against each other. PDP even went to court with a near successful claim that he was no longer vice-president; and some elements in his own AC sought to frustrate him because they saw him as a desperate interloper. And Nigerians knew that AC was just a party of protest held together by anti-establishment rhetoric and possessing of only sentimental appeal in Atiku’s Adamawa and Lagos (because of Tinubu). And where is AC today? Many are with Yar’Adua – meaning, the man is still winning in the countdown to the appeal Atiku says he will file. Maurice Iwu, again, has nothing to do with AC members jumping ship in Atiku’s many hours of need. Tinubu is now even urging him to cease and desist from further challenge of Yar’Adua. So, why would anybody still call for Iwu’s sack for declaring a result that has now passed the most strenuous judicial scrutiny ever?

On his part, Buhari had his many issues with his own party, including the nasty challenge by Ahmed Yerima, the strongman and main financier of ANPP. Add the other ANPP governors and apparatchiks who decamped to PDP in droves and under circumstances that politically wounded Buhari. And Buhari did not have the kind of money and ANPP lacked the national spread that must be present before anyone could think of winning a presidential election. Its popularity and structure lay in only four or five states in the core north; and there was no credible evidence that Buhari or the ANPP had sufficient numbers or spread anywhere in the south to even have a fighting chance. So, how could he have won the presidency? And where is ANPP today? Majority are in Yar’Adua’s government. So, as Buhari also contemplates filing his appeal, he needs to bear all these realities in mind and consider whether he is merely engaging in a frivolous pursuit of an election his party (not Maurice Iwu or INEC) lost for him way before the first votes were cast.

Orji Kalu was very clever to acknowledge early in time that his party did not yet have the structures to win the presidency. PPA was just a new party borne in protest over the lack of internal democracy in the PDP. It bears repeating that Orji has even praised Iwu for ensuring that the elections proceeded to conclusion and has now again congratulated Yar’Adua for prevailing at the tribunal. It is unfortunate that the tribunal in Abia has upturned PPA’s victory but the fact remains that the two reasons cited by the tribunal – secret cult and lack of resignation, have nothing to do with what Maurice Iwu did or did not do. And to Iwu’s eternal credit, the tribunal in Abia ruled that the election proper was free and fair. This is in addition to similar pronouncements for Jang of Plateau and Mamman Ali of Yobe, not to talk of the governorship tribunal in Nasarawa which even went further to award costs as a deterrent to frivolous judicial challenge of election results.

Back to the presidential polls, AC and ANPP’s poll agents accepted and signed off on the REC-collated final results sheets before Maurice Iwu went to press with it. So, how can Atiku or Buhari or anyone else for that matter now claim that there was no election in more than 29 states when their agents had contemporaneously signed off on the results of elections conducted in those states? And Atiku’s claim that he was excluded by Iwu from the ballot failed simply because all Nigerians (including those who testified for him) knew for a fact that Maurice Iwu had to go to extra expenditure and hard work to include him in the ballot pursuant to the Supreme Court ruling in his favor. I personally saw his name on the ballot. And if you look at the spread of the party’s performance in the state/national assembly and governorship elections, you will notice that the parties maintained just about the same number of votes they garnered in the presidential election. These were part of the larger evidence that bolstered Iwu/INEC’s position that the outcome of the election reflected the popular will and thus was in substantial compliance with statutory mandates.

If aspects of the election were irregular, I would say they are too minuscule to constitute grounds for disturbing the overall outcome. In some few isolated cases such as Benue, the tribunal held the election to have been free and fair in seven out of nine LGAs that make up David Mark’s senatorial district and only cancelled two LGAs merely because the presiding officer there had initially held the polls to have been inconclusive. This had nothing to do with Maurice Iwu because he was not the one that declared the result in Makurdi that was at issue. Thus, in the rest of the country, the PDP prevailed for the same reasons ANPP, AC, and PPA prevailed in the select areas where they did, and the reason is nothing more than that the overall result is merely a reflection of party strength, structures and spread. Anybody who recalls how and why Osakwe prevailed over Ahmadu Ali’s wife in Delta can easily discern what was really going on in the country and would agree that it was not Maurice Iwu or INEC that also went over to Delta and picked Osakwe over Ali’s wife. It was OBJ (who then was nursing a huge animus against Ali) and El-Rufai, who was busy demolishing Ali’s house in Abuja and thus distracting him from ensuring his wife’s victory. Add that to a foxy Ibori, who wanted to please OBJ in the hope that Ribadu would remember the favor and forget about following through with the threat to arrest him once he leaves office. So, where did Iwu figure in all these mess? See what I mean?

You can’t win any general elections without winning in your party first. OBJ’s anointment of Yar’Adua brought a mass capitulation of other aspirants, including a formidable Babangida and Odili, and that alone paved the way for Yar’Adua to win handily inside the PDP. Conversely, Atiku and Buhari were fighting to survive inside their own parties at the same time they were also arrayed against a cruising Yar’Adua. Elections are not won on the pages of newspapers, by protracted court battles or demonizing of umpires but with lots and lots of money, organization, and quantum of party spread and strength in electoral wards and precincts. Maurice Iwu is not the person that empowered the PDP. Atiku helped to empower the PDP from way back in 1998 until it grew to proportions that finally overwhelmed him and Buhari in 2007. This is the plain truth.

Prince Femi Omoyole fomoyole@yahoo.com