The Legal Question Sorrounding the Nationality Of Former Nigerian Vice President Atiku Abubakar As Not Being Nigerian By Birth And Therefore Ineligible To Stand For President.
By Manfred Ekpe, Esq.
Alhaji Atiku Abubakar’s biography had been documented decades before 2019 when Nnamdi Kanu, I think, first raised the issue of his nationality and the nation caught it in political frenzy. His biography is that his Grandfather, Garba Abubakar migrated from Sokoto which has at all times during colonization been a part the Nigerian protectorate to Jada in Adamawa in the area latter to be part of British Cameroons during colonization. In Jada, Atiku’s father was born. Atiku was also born in Jada in 1946 in the British Cameroon territory. In the 1961 British Cameroon plebiscite, Jada fell to the Northern Region of Nigeria as the 13th province. There is argument by legal scholars, or perhaps as mere academic exercise that Atiku Abubakar is not Nigerian by birth since he and his father were born Cameroonians. Section 131 of the Nigerian Constitution 1999(as altered) (Hereinafter, the constitution) stipulates that only Nigerians by birth can be president of the country. A Citizen by birth is defined in section 25 of the constitution as a person whose parents or grandparents were indigenes of any indigenous tribes of Nigeria before 1st October 1960 at independence. The question now is, is Atiku Abubakar a Nigerian by birth within the meaning of sections 25(1) & (2) of the constitution? What is the legal effect of the amalgamation of former British Northern Cameroon with Nigeria in 1961?
Section 24(1)(a) stipulates that a Nigerian citizen by birth is every person born in Nigeria before the date of independence, either of whose parents or any of whose grandparents belongs or belonged to a community indigenous to Nigeria. Section 7 of the 1963 Republican Constitution of Nigeria which is in pari materia with section 25 of the 1999 constitution stipulated that any person whose father was a citizen of a former British territory had became a Nigerian citizen by 1st October 1960. Section 10 of the 1963 constitution references the citizens of the former northern territories of Cameroon as bonafide Nigerian citizens. Under the 1979 and 1999 constitutions, Adamawa and other former northern Cameroon territories are listed as states and local government areas in Nigeria.
Section 131 of the constitution says that only citizens by birth can be president of Nigeria. It would be out of reasonable inference to state the obvious that it was the intention of the United Nations which enacted the 1961 British Cameroons plebiscite, or the intention of the framers of the 1963, 1979 and 1999 constitutions that the citizens of the former British northern Cameroon territories should remain second class citizens in Nigeria and should not hold certain political offices.
I venture to say that the effect of sections 25(1)(a) of the 1999 constitution ordinarily would dismiss the question of Alhaji Atiku Abubakar’s non citizenship by birth because it is on record that his grandfather was from Sokoto which was an indigenous community of Nigeria at independence. He only migrated to take up habitual residence in Jada. There is nothing to show that he became a Jadait and had renounced his Sokoto citizenship before death. Therefore, it could be safely concluded that at independence, Atiku Abubakar’s grandfather was a Nigerian of Sokoto origin. There is no way he could have been a Nigerian, for his son, Atiku’s father not to have been same and by extension, Atiku the grandson. Residence in Jada did not automatically mean he was indigene of Jada, and a Cameroonian. Assuming without conceding that Atiku’s father had been a Cameroonian by birth, as earlier said above, section 7 and 10 of the 1963 constitution qualified all those whose fathers were citizens of the British Northern Cameroon as Nigerian citizens by birth. This argument would ordinarily dismiss the question of Alhaji Atiku Abubakar’s nationality status.
However, despite the above erudition of an argument, this question, for jurisprudential enrichment, can best be trashed not only by the prism of local Nigerian legislation, but also international law, especially as the question cannot be given justice without the 1961 legal instrument uniting Adamawa with Nigeria after the plebiscite. This treaty itself falls under international law.
It is my submission that the intendment of the plebiscite was not to keep the former Cameroonian citizens who joined Nigeria by will, as second class citizens, and who can never hold elective political offices forever in Nigeria, and to keep former southern Nigerians who in the same plebiscite voted to integrate with Cameroon, as second class Cameroonian citizens who cannot enjoy equal rights and privileges with other Cameroonians. This would be against the principle of natural justice, equity and good conscience. And against the universally acclaimed inherent human rights of dignity to human person and non discrimination as enshrined in Articles 5 and 7 of the Universal Declaration of Human Rights (UDHR), sections 5 and 7 of the African Charter on Human and Peoples’ Rights, Sections 34 and 42 of the Nigerian Constitution 1999. And Article 2(1) of the International Convention on Civil and Political Rights (ICCPR).
in the case at hand, subjecting a certain class of citizens to second class treatment; that is to say, the people of Adamawa State and a greater part of the North Eastern geopolitical zone of Nigeria as second class citizens who can never be local government chairman, governor, deputy governor, vice president, president, community head and traditional ruler, local, federal and state legislators, or employed in the police, military, DSS, Customs and other category of public service reserved only for citizens by birth, would amount to subjecting these citizens, including Alhaji Atiku Abubakar, to indignity, degrading and inhuman treatment, and discrimination, only by reason that they freely chose to reunite with their kinsmen in Nigeria in 1961. Upholding such argument would mean that only children of those who were born to parents who were born after 1961 can aspire to certain public offices in Nigeria. This is not the intendment of sections 25 and 131 of the constitution, as this is not only against all the rules of international law, but repugnant to natural justice, equity and good conscience. We can also borrow a precedent from the United States of America where the integration of the former Russian territory of Alaska and the former Mexican Territories into the United States had not made citizens of those territories less Americans.
There are a plethora of international judicial pronouncements, and international law principles against such reasoning. Under international law, Nationality by Appropriate Connection is recognized. This is a legal principle that recognizes full citizenship to people from a constituent unit of a predecessor state. See the International Law Commission Draft on Nationality of Natural Persons in Relation to Succession of States, 1999( Annex to the United Nations General Assembly res.55/153 of 12/12/2000, article 11; commentary paragraph thereof.
Furthermore, denying Atiku Abubakar full rights and privileges as a Nigerian citizen under the circumstances of this matter, is akin to declaring him and millions of people whose parents were born in the area latter integrated with Nigeria under the 1961 plebiscite as stateless persons.
In the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 1930, (hereinafter, the Hague Convention), it was affirmed in its preamble that in the interest of international community, all countries must recognize that every person shall have nationality. Under the International Convention on State Succession to Treaties, Nigeria is bound thereby. In reinforcement of this international law principle, article 51 of the UDHR states that every person has right to nationality.
It is my further averment that article 5 of the AFRICAN CHARTER on dignity of persons was aimed against depriving persons of full nationality in their country as pronounced by the African Commission. See the cases in Communication No.212/98; Amnesty int’l v. Zambia (2000) para. 50; and Communication No.97/93 Mordise v Botswana (2000),para.91. In the case in Communication No.211/98 Legal Resources Foundation v. Zambia (2001), the Zambia Parliament made constitutional amendment to the effect that any person who wished to contest election as Zambian president must show evidence that his parents were Zambians by birth. This was to prevent the Zambian former president, Kenneth Kaunda from standing election to the office of president. The African Commission declared that the constitutional provision was in violation of the provisions of Articles 2,3 and 13 of the African Charter. In the case at hand, any law, be it statutory or case law, which intends to reduce millions of citizens including Atiku Abubakar, whose parents are purported not to have been Nigerians at independence, as second class citizens by reason of which they cannot become president or hold any public office constitutionally reserved for citizens by birth, would, in my view, be illegal and in violation of the African Charter, UDHR, ICCPR, the Nigerian Constitution and all known norms of international law. In my view this is a question of the fusion of morality and the law in mutual conspiracy to disallow such jurisprudence.
Thirdly, in the norms of International law, as stressed by the renowned international law scholar, Crawford, J., in his title, “The Creation of States in International Law, “ (2nd Edition) 2006 at page 53, whenever there is cession or integration of a part of a country with another country, the citizens of one of the countries who habitually resides in the other country, automatically become citizens of the country they habitually reside in. This is however, subject to bilateral agreement to the contrary. Assuming without conceding that Atiku Abubakar was not a Nigerian by birth at independence, this international law principle qualifies him as a Nigerian by birth. There is no bilateral agreement between Nigeria and Cameroon to the effect that natural persons from the northern part of Cameroon that was integrated with Nigeria shall remain Cameroonians or hold dual citizenship of Nigeria and Cameroon. This means Nigeria is the only country they can call their own. The Crawford theory supra takes us to the Green Tree Agreement which is the treaty ceding Bakassi Peninsula to Cameroon in compliance with the International Court of Justice (ICJ) Judgment in the case of the Land and Maritime Boundary between Nigeria and Cameroon. The agreement spelt out that former Nigerians of Bakassi origin shall have the right to elect whether to take up Nigerian or Cameroonian citizenship. Hence those Nigerians of Bakassi origin habitually resident in Cameroon would naturally automatically become Cameroonians by birth upon the accession to the agreement by both countries just like the 1961 British Cameroons Legal Instrument, but for the clause in the Green Tree Agreement enabling the Bakassians in that behalf to choose between the two countries.
Fourthly, the legal instrument integrating north Cameroon with Nigeria in 1961 declared all citizens of the integrated region as full Nigerians. With the combined effect of Sections 10 of the repealed 1963 Constitution; and Section 6(1)(c), of the Interpretation Act, Atiku Abubakar and all citizens of the integrated part are Nigerians by birth. Section 6(1)(c ) of the Interpretation Act provides that the repeal of an enactment shall not affect any right, privilege, obligation or liability accrued or inured under the repealed enactment. Hence since the 1963 Constitution adopted and integrated the indigenous people of the said former northern Cameroon which had been integrated into Nigeria as Nigerian citizens by birth, the repeal of that constitution did not and has not deprived these citizens of their birthright inured under the 1963 Constitution by virtue of the doctrine of Related-Back. Hence whether or not subsequent Nigerian constitutions repeated section 10 of the 1963 constitution which inured citizens by birth to persons of former northern Cameroon, they nevertheless retain that status. The doctrine of related-back is a legal doctrine which holds the principle that an act done at a later time is deemed by law to have occurred at an earlier time. This is an exception to the general principle that law does not act in retroactive effect. Thus, the birthright of His Excellency, Alhaji Atiku Abubakar as a Nigerian accrued to him under the 1963 constitution and continues to so accrue including his descendants in perpetuity notwithstanding the repeal of the 1963 constitution. It is deemed that his constitutional birth as a Nigerian National by birth in 1961 is related back to his biological birth in 1946 vis-à-vis the 1961 British Cameroons Plebiscite Legal Instrument which integrated northern Cameroon with Nigeria. And I so submit.
Finally, the intendment of sections 25 and 131 of the 1999 constitution was not aimed at depriving persons of former northern Cameroon of their birthright as Nigerians, but was to check the situation where Nigerians with citizenship by naturalization or registration who acquires dual citizenship should not hold sensitive public offices to avoid conflict of patriotism. This can be seen in the wordings of the combined effect of sections 25, 26, 27, 28, 37, 41, 42, 43, 66(1), 107 (1), 137 (1), 142(2), 182 (1), 187(2), 318 and 319 of the Constitution of Nigeria. It is settled that in the canons of constitutional and statutory construction the constitution must be read as a whole to ascribe to it it’s intended meaning. See Muhammadu Buhari V. Chief Olusegun A. Obasanjo (2005) LCN/3365(Sc).
Flowing the above elucidation, I am of the humble but firm belief that His Excellency, Alhaji Atiku Abubakar is eminently eligible to contest for the office of president of the Federal Republic of Nigeria, and I strongly belief the court will so hold.
Atiku Abubakar’s Nationality Status and Eligibility for President
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