Legal Opinion

Buhari’s Certificate, Atiku’s Nigerianness and the Constitution

by Misbau Alamu Lateef

Misbau Alamu Lateef

On their surfaces, the recurring issues around President Muhammadu Buhari’s school certificate and the latest buzz about the citizenship of Alhaji Atiku Abubakar truly appear very laughable and even ridiculous. I mean how can one say that President Muhammadu Buhari, a commissioned soldier, war-time hero, former minister, retired army general, former head of state, and now a two-term democratically elected President of Nigeria, did not receive an education up to a school certificate level or its equivalent?

How can one also say that Alhaji Atiku Abubakar, a retired custom-boss in Nigeria, a former elected governor of Adamawa State, a former Vice President of Nigeria for 8 years and the Presidential candidate of the main opposition party (PDP) in the 2019 general elections, is not a citizen of Nigeria by birth?

Well, such is politics. Even in the most developed of democracies and economies such as in the United States, politics is never devoid of “laughable”, “ridiculous” and “pedestrian” issues. You will recall that furores over the American citizenship of Barack Obama were a major highlight of his bid for Democratic nomination in 2008 and subsequent elections and Presidency. Indeed, it was only recently the President Donald Trump himself acknowledged that the Hawaii-born Barack Obama is an American citizen by birth.

The so called “birther” movement had actually claimed that Obama was born in Kenya by a Kenyan father and thus ineligible to become President of the United States under the U.S. Constitution. Meanwhile, like the present Atiku’s citizenship challenge in the Nigerian court, the Obama citizenship issue also resulted into several court litigathons (see: Berg v. Obama (2008); Essek v. Obama (2008); Barnett v. Obama (2009) and etc) in the U.S.

Now, beneath the political surfaces of the issues of Buhari’s certificate and Atiku’s citizenship by birth, however, are real non-laughable and non-ridiculous Constitutional issues. I hope to scratch the political surfaces in this intervention. To start with, are both the Petitioners (Alhaji Atiku Abubakar/PDP) and the Respondents (Muhammadu Buhari/APC) right to make these “laughable or ridiculous” issues of school certificate and citizenship by birth part of their grounds or issues to be determined by the Presidential Election Petition Tribunal sitting in Abuja? Yes!

They have all acted within the law. According to the provision of section 138 (1) of the Electoral Act 2010, “an election may be questioned on any of the following grounds, that is to say – (a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election.” Please note that this ground is the very first one prescribed by law and comes even before other grounds such as the validity or credibility of the electoral process itself. In other words, a person who won an otherwise valid and credible election may still be barred from occupying the position or removed from office if found to be ineligible in the first place. So, what qualifies a person for election as President of Nigeria?

In Nigeria, the very first requirement of eligibility for the position of the President of the country is the Nigerian citizenship of that person by birth. Section 131 of the 1999 Constitution (as amended) provides thus: “A person shall be qualified for election to the office of the President if – (a) he is a citizen of Nigeria by birth.” To be sure, sections 26 and 27 of the Constitution prescribe other means of acquiring Nigerian citizenship by registration and naturalisation respectively. However, section 131(a) singles out citizenship by birth as a pre-condition for qualification to the office of the President. It follows therefore that Nigerian citizens by registration and naturalisation are not qualified to become the President of Nigeria.

Furthermore, following the requirement of citizenship of Nigeria by birth under section 131(a) referenced above are three other important constitutional requirements namely: “(b) he has attained the age of forty years; (c) he is a member of a political party and is sponsored by that political party; and (d) he has been educated up to at least School Certificate level or its equivalent.”

From the above, it is crystal clear that the charge of non-citizenship of Nigeria by birth against anyone is a serious constitutional matter. The seriousness of the charge, it must be noted, will not also yield to the sentiment of timing or “why now?” as we now see everywhere. Similarly, the charge of lack of education up to a school certificate level or its equivalent against anyone is not, as a matter of law, laughable. But who is a Nigerian citizen by birth and what is a school certificate or its equivalent? I will start with the citizenship by birth issue. In order to be able to clearly drive home the point on that, let me quote the provision of Section 25 of the Nigerian Constitution verbatim. It provides:

“(1) The following persons are citizens of Nigeria by 
birth

(a) 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;

Provided that a person shall not become a citizen of Nigeria by virtue of this section if neither of his parents nor any of his grandparents was born in Nigeria.

(b) every person born in Nigeria after the date of 
Independence either of whose parents or any of whose grandparents is a citizen of Nigeria; and

(c) every person born outside Nigeria either of whose parents is a citizen of Nigeria.

2) In this section, “the date of independence” means the 1st day of October 1960.”

The logical questions to ask from the very clear provisions of section 25 cited above will include the following: where was Alhaji Atiku Abubakar born? Was he born in Nigeria or Cameroon as alleged by the APC in their defence to the petition? Where were the parents or grandparents of Alhaji Atiku Abubakar born? Was Atiku truly born in Northern Cameroon and when did Northern Cameroon become part of Nigeria? If Atiku was born in Northern Cameroon before Nigerian Independence in 1960, what is the implication of section 25(2) of the Constitution which stipulates the date of Nigerian Independence in relation to citizenship by birth?

Although I have neither seen nor read the processes filed in court by the APC where the issue of Nigerian citizenship of Atiku Abubakar was raised, reports in the credible media (mainstream) clearly show that the party is saying, in summary, that Atiku Abubakar was born on November 25, 1946 in Jada, Adamawa, in Northern Cameroon and is, therefore, a citizen of Cameroon and not a Nigerian by birth. I have also read in the media the statement issued on Saturday 12 April 2019 and signed by a certain Paul Ibe, a media aide to Atiku Abubakar. The statement merely poohpoohed the allegation of the APC by calling it “ridiculous” and “pedestrian”.

It went ahead to add that the APC has no serious defence to the claim that Atiku Abubakar truly won the 2019 Presidential election. But other than merely saying that his boss had previously occupied several positions in Nigeria, Mr. Paul Ibe’s statement did not even make any attempt to clearly address the main issue of the citizenship of Atiku Abubakar. He simply said that he would not dignify the challenge with any response. Does he really understand the seriousness of the issue? Well, we will now have to wait for the pronouncement of the courts on the politically ridiculous but constitutionally serious matter of Atiku’s citizenship.

On the second politically ridiculous but legally serious issue of school certificate requirement and Buhari’s certificate in particular, let us make further recourse to the 1999 Constitution of Nigeria. But before then, let me clarify that unlike the Atiku’s citizenship issue which just cropped up (at least in court) in this 2019, the issue of Buhari’s certificate has been a recurring decimal at least since the 2015 general elections.

Although the issue has been to at least two Federal High Courts and the Court of Appeal since 2015, there has not been any pronouncement on the merit of the issue till date. Actually, both cases at the Federal High Court were either struck out or withdrawn by the Applicants themselves. It is therefore wrong to also say that President Buhari frustrated or prevented the cases from being heard on their merits.

Now, according to the provision of section 318, the Interpretation section of the Constitution, “School Certificate or its equivalent” means:

(a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or

(b) education up to Secondary School Certificate level;

or

(c) Primary Six School Leaving Certificate or its equivalent and –

(i) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and –

(ii) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and –

(iii) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and –

(d) any other qualification acceptable by the Independent National Electoral Commission.”

Clearly, in my humble view, the above provision of section 318 of the Constitution is wide enough to accommodate even a barely literate person on the requirement of “School Certificate or its equivalent” under section 131 of the same Constitution earlier referenced. However, there are also several questions for President Muhammadu Buhari and the court to answer and they include: did President Buhari really receive education up to “School Certificate or its equivalent”? If yes, where is his credential or certificate? Will an affidavit suffice for the certificate? Or, has he really presented any school certificate or testimonial to INEC?

If no, will he find a space under the wide latitude provided under section 318 for “School Certificate or its equivalent”? Assuming without necessarily conceding that President Muhammadu Buhari was not educated up to “School certificate” (read: secondary school) can it also be said that he has not by his records of service thus far acquired an “equivalent” of the “School certificate” in view of the omnibus (wide) provision of section 318 cited above? Again, these are very serious issues that the court will have to determine one way or the other.

Finally, it is important to stress that both the Petitioners (Atiku/PDP) and Respondents (Buhari/APC) have raised serious constitutional issues before the Court and it will be foolhardy to dismiss the seriousness of the issues on the alter of political sentiments and brick bats. And if I were to rank the seriousness of the issues and the chances of each candidate to wriggle out of the political and legal conundrum, I would rank the Atiku’s citizenship issue as being more legally serious and dangerous. Why?

I do not think that sections 25 and 131 of the Constitution on the issue of citizenship requirement admits of any wide latitude as does the provision of sections 131(d) and 318 on the issue of “School Certificate or its equivalent”.

I mean it is either Atiku is a citizen of Nigeria by birth or not. It is also hoped that the dust raised by these politically ridiculous issues will help to generate a serious constitutional reforms in Nigeria. And that the Court of Appeal and the Supreme Court will seize the opportunity at this time to finally put to rest, on the merit, the issue of Buhari’s certificate.

(c) Misbau Alamu LATEEF (2019).

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