Posthumous Award : Does A Deceased Cease To Be A Citizen Under Nigerian Law ? By Balogun Sofiyullahi

Introduction

The above question which this writer seeks to answer has left a host of minds boggling and as such, it has triggered  mixed reactions amongst Nigerians in response to the posthumous awards of GCFR and GCON conferred on late Chief M.K.O Abiola (GCFR); Ambassador Babangana Kingibe (GCON) and late Chief Gani Fawehinmi SAN by President Muhammadu Buhari on 6^th day of June,2018  in commemoration of June 12, 1993 when a return to civilian rule was truncated nay,  obliterated upon the annulment of the election by the military administration of General (rtd.) Ibrahim Babangida. However, this question is premised particularly on the observation of Senator Dino Melaye (representing Kogi West) on the floor of the Senate on Thursday, June 7, 2018 where he (viva voce) said: “But Mr. President, we are governed in the country by the constitution and extant laws. No matter how beautiful a situation is, the law of the land remains the law of the land. Subsection 2 of the act says a person shall be eligible for appointment to any rank or holder unless he is a citizen of Nigeria. A dead man is not a citizen of the Federal Republic of Nigeria. We should not be emotional about this. The law remains the law.” (Emphasis mine). Based on the foregoing observation, this writer seeks to examine the propriety or otherwise of the underlined statement above in line with the Nigerian Law.

2. Who Is A Nigerian Citizen ?

According to the English Mini Dictionary, a Citizen is: “A legally–recognized member of a state, with associated rights and obligations; a person considered in terms of this role…” Apparently however, a Nigerian citizen is one whom the  1999 Constitution has proclaimed to be one/such  by virtue of Sections 25, 26, 27 and 28 of the 1999  Constitution. Therefore, acquisition of citizenship in Nigeria is by any of the following three ways:

• By Birth : Section 25 of the Constitution;
• By Registration : Section 26 of the Constitution;
• By Naturalization : Section 27 of the Constitution.

3. Deprivation of Nigerian Citizenship

It is important to state from the outset that a person who acquires his/her citizenship by birth cannot by any guise be deprived of such under the 1999 Constitution except if he/she voluntarily renounces his/her citizenship. See Section 29 of the Constitution and  Alhaji Shugaba Abdurrahaman Darman v. Minister of Internal Affairs (1981) 2 NCLR 459. However, a person can be deprived of his/her citizenship thus:

• Acquisition of the citizenship of another country if such a person is not a Nigerian by birth or a citizen of that other country by birth : Section 28(1) of the  1999  Constitution and Supreme Court of India decision in :  Izhar Ahmad Khan vs Union Of India 1962 AIR 1052, 1962 SCR .
• By voluntary renunciation of his/her citizenship upon attaining full age : Section 29(1) of the Constitution,
• If granted citizenship by naturalization, he/she was convicted within a period of  seven years after naturalization  for a criminal offence with imprisonment for a term  not less than three years : Section 30(1) of the Constitution,
• If granted citizenship by naturalization, he tends to be disloyal by action or speech towards Nigeria : Section 30(2)(a) of the Constitution,
• If granted citizenship either by naturalization or registration, he/she engages in trade et al. with a country at war with Nigeria within that period of hostility : Section 30(2)(b) of the Constitution.

These are the only circumstances cognizable under the 1999 Constitution that may necessitate the deprivation/withdrawal of a person’s citizenship. In the main, the question that readily comes to mind is that: based on the foregoing  circumstances analyzed above, can a deceased person be regarded having been deprived of its citizenship upon demise ? The necessary answer to the above poser is to my mind suggestive of a negative response. However, since the Constitution of Nigeria is the yardstick of this present analysis, some cardinal principles of Constitutional  interpretation as enunciated in Nigeria by our courts is desirable to be noted at this point. Following firmly established principles and rules of Constitutional construction, the Supreme Court of Nigeria in the case of SKYE BANK v. IWU: (2017) LPELR-42595(SC) reinvigorated (some) through Hon. Justice Nweze(JSC) thus:

1. “[H]ere is the very fundamental prescription that, in interpreting the Constitution which is the supreme law of the land mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined therein”. See aslo Nafiu Rabiu v. State [1980] N.S.C.C. 292, 300” (emphasis mine).

2. “[H]owever, where there is inherent ambiguity in any section, a holistic interpretation would be resorted to in order to arrive at the intention of its framers” See also A-G,Federation v. Abubakar (2007) ALL FWLR (Pt. 389) 1264 at 1289-129); Elelu-Habeeb v. A-G, Federation (2012) LPELR-SC.281/2010); I.N.E.C. v. Musa (LPELR-SC.228/2002); Marwa and Ors v. Nyako (2012) LPELR-SC.141/2011 (CON). (Emphasis mine).

3. “Above all, the rationale of all binding authorities is that a narrow interpretation that would do violence to its provisions and fail to achieve the goal set by the Constitution must be avoided. Thus, where alternative constructions are equally open, the construction that is consistent with the smooth working of the system, which the Constitution, read as a whole, has set out to regulate, is to be preferred”. See also Dapianlong v. Dariye [2007] 8 NWLR (Pt. 1036) 239. (Emphasis mine).

From the foregoing interpretational rules, I find it unfortunate to agree with Senator Dino Melaye that a deceased person is no more a Nigerian citizen because of the following reasons:

1. The Constitution has provided for circumstances that would deprive a person of his/her citizenship as identified above , of which “a dead person” is never contemplated thereunder. Therefore, to read “dead person” therein as a further qualification is to unreasonably extend the wordings of the Constitution beyond what the framers intended. In the recent case of AHMED v. MINISTER OF INTERNAL AFFAIRS OF F.R.N. & ORS (2017) LPELR-43150(CA), it was held:

“Qualification to be a citizen of this country is clearly spelt out in Sections 23 to 28 of the 1979 Constitution Supra (Sections 25-31 of the 1999 Constitution). Nothing extraneous can be read into these provisions.” (Emphasis mine).

2. To deprive a deceased person its citizenship would be violative of the intendment of the framers of the Constitution. For instance, citizenship by birth could be acquired through one’s parent or grand parents, whom were born in Nigeria by virtue of Section 25 of the Constitution. The question now is , if the parents of the born child had died, do they cease to be a citizen which would necessarily affect the one acquired by the child ?

I am of the candid but settled opinion that the answer to the question above is in the negative which to my view, is the intendment of the framers of the Constitution. The Supreme Court held in ELELU HABEEB V.AGF(SUPRA)  thus : “A Constitutional provision should not be construed in such a way as to defeat its evident purpose…Constitutional languages is to be given a reasonable construction and absurd consequences are to be avoided. (Emphasis added).

4. Conclusion

Having carefully examined the relevant constitutional provisions to reach a conclusive opinion that a deceased person does not lose its citizenship upon demise , contrary to the assertion of Senator Dino Melaye on the floor of the Senate on June 7^th , 2018 where he asserted that “a dead man is not a citizen of Federal Republic of Nigeria”. It is respectfully submitted with profound respect to the Senator that his above assertion is of no legal basis and nay, unconstitutional. Similarly, it is respectfully submitted that to uphold the assertion as valid, is capable of  setting  in attendant damning consequences which may plunge the country into crisis and may equally question other branches of Law put in place for a deceased person like laws governing Wills, Probate and administration et all. Finally, some legal commentators may tend to invoke the ultra legalistic interpretation of the meaning of “person” to exclude a deceased individual in order to conclude that Senator Dino Melaye is on the right track, this in  my view, would hold no sway in this circumstance because the jurisprudence of Constitutional interpretation is far beyond restriction and unnecessary allegiance or obeisance to mere common law rules which (may)  at times stultify the living tree doctrine of the Constitution . One of such instance where this  narrow construction was avoided is to wit; the  extension of the word “person” in Section 46(1) of the 1999 Constitution to allow a deceased right to be enforced after his demise which was  guaranteed under Chapter IV of the Constitution. See DILLY v. I.G.P & ORS (2016) LPELR-41452(CA). Balogun Sofiyullahi writes from Faculty of Law, Ahmadu Bello University, Zaria. @balogunsofiyullahi@gmail.com or 07032676039  ]]>