On Saturday, April 15, 2023, independent journalist David Hundeyin uploaded to his Twitter account, images of a Guinean passport belonging to Bola Ahmed Tinubu, Nigeria’s president-elect. The passport, issued in October 2015, featured Tinubu’s name and photograph as the passport holder and indicated that it had expired in 2020. The passport also showed the nationality of Tinubu as “Guinean” and the place of birth as “Lagos”. Following the ensuing controversy, the Guinean embassy in Abuja stated that the Guinean passport issued to Tinubu is a diplomatic one.
Two main issues have arisen since then. One is whether a person is qualified to run for the office of the president where he has dual citizenship and whether Tinubu was eligible to be issued a diplomatic passport at the time the passport was issued and subsisted.
– a Nigerian by birth can retain, and maintain dual citizenship for purposes of seeking any elective office(s) in Nigeria
Can a person with dual citizenship run for the presidency?
The Nigerian Constitution contains several rules about disqualifications based on citizenship for those seeking elective offices. Specifically, section 66 pertains to the National Assembly (both the House of Representatives and the Senate), section 107 to the House of Assembly, section 137 to the President, and section 182 to Governors.
The language used in these sections is similar, with slight variations depending on the office in question. To provide legal analysis, the relevant provisions regarding the president in section 137 are used as a guide.
According to section 137 of the Constitution, “a person shall not be qualified for election to the office of the 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”.
A plain reading of this provision (that is without recourse to Section 28) indicates that a person who holds dual citizenship is not eligible to hold the office of the President. But the provisions of Section 28 refer to persons who are not Nigerian citizens by birth.
Section 28(1) provides that “subject to other provisions of this section, a person shall forfeit forthwith his citizenship if, not being a citizen of Nigeria by birth, he acquires or retains the citizenship of or nationality of a country, other than Nigeria, of which he is not a citizen by birth.
Section 28 (2) also stipulates that “any registration of a person as a citizen of Nigeria or the grant of a certificate of naturalisation to a person who is a citizen of a country other than Nigeria at the time of such registration or grant shall, if he is not a citizen by birth of that other country, be conditional upon effective renunciation of the citizenship or nationality of that other country within a period of not more than five months from the date of such registration or grant.
Section 28 relates to the forfeiture of citizenship of persons who acquired Nigerian citizenship by naturalisation or registration. The section stipulates that where a person acquires another country’s citizenship by naturalisation or registration (that is, other than by birth), he loses his Nigerian citizenship. Also, if a person must earn the title of citizen of Nigeria through registration or naturalisation, such a person shall renounce any other citizenship he has acquired through registration or naturalisation.
Following this interpretation, some stakeholders say that to interpret this section otherwise and say that the section includes citizens by birth will mean that anyone in Nigeria (that is Nigerians who were born in Nigeria) will automatically lose their citizenship because they acquired the citizenship of another country.
Furthermore, section 131 (a) of the Constitution says that “a person shall be qualified for election to the office of president if he is a citizen of Nigeria by birth”. So, if only a citizen by birth can become a president in Nigeria and a person is disqualified from being a president based on his acquiring the citizenship of another country, but subject to the fact that he is not a Nigerian citizen by birth, was there really a need for section 137 (1)?
According to a legal opinion by Yemi Oke, a law lecturer at the University of Lagos, there is nothing in the Constitution that precludes Nigerian citizens by birth (as against those by registration and naturalisation) from holding dual citizenship while seeking elective office(s) as the 137 (1) is subject to the provisions of section 28 of the CFRN 1999.
He noted that “it is my considered opinion that a Nigerian by birth can retain, and maintain dual citizenship for purposes of seeking any elective office(s) in Nigeria till date, subject to any amendment to the Constitution or any new law passed by the National Assembly to the contrary as contained in the above provisions”.
Was Tinubu qualified for a diplomatic passport under Nigerian law in 2015?
On this issue, the Vienna Convention on Diplomatic Relations which has been ratified by both Nigeria and Guinea, stipulates that a diplomatic passport should be given to a diplomatic agent who is accredited to a foreign country by the sending state.
Article 35 of the convention states that the receiving state shall, in accordance with its laws and regulations, recognize the diplomatic status of the head of the mission and other members of the diplomatic staff and issue to them diplomatic passports or other appropriate documents. Article 37 also provides that their spouses and dependent members of their families shall enjoy the same benefits and privileges. Therefore, a diplomatic passport is generally issued to the head of the mission and members of the diplomatic staff who have been granted diplomatic status by the receiving state, as well as to their spouses and dependent family members. The diplomatic passport serves as evidence of their diplomatic status and may be used for travel and other official purposes.
Article 1 of the Convention defines a diplomatic agent as “the head of the mission or a member of the diplomatic staff of the mission.” This includes the ambassador or chief of mission, as well as other diplomatic personnel, such as counsellors, attaches, and secretaries.
There is no record that Tinubu was a public official or a diplomat appointed by the government at the time when the passport was issued between 2015 -2020. Usually diplomatic passports are issued to diplomats and this grants them diplomatic privileges.
