Femi Falana: Again On The Matter Of Residency Rights

The discriminatory treatment meted out to non-indigenes and settlers in many parts of the federation is a gross contravention of the residency rights of citizens and their fundamental right to freedom from discrimination. In spite of the insistence of a backward ruling class on state of origin every citizen is entitled to all the rights and privileges of Nigerian citizens on the basis of equality before the law. Before examining the basic rights of citizens it ought to be pointed out that the citizenship of Nigeria can be acquired either by birth, registration or naturalization

By virtue of Section 25 (1) of the 1999 Constitution a citizen of Nigeria is any person born in Nigeria before or after independence on October 1, 1960 either of whose parents or grandparents belong or belonged to a community indigenous to Nigeria or every person born outside Nigeria either of whose parents is a citizen of Nigeria. In Alhaji Shugaba Abdurrahaman Darman v. Minister of Internal Affairs (1981) 2 NCLR 459 the applicant, a member of the Borno State House of Assembly, was deported from Nigeria by the Federal Government and dumped in the Republic of Chad on January 24, 1980 by the Respondents. A judicial commission of Enquiry was thereafter set up by the Federal Government to determine his nationality.
The applicant filed a suit at the Borno State High Court to enforce his fundamental rights to personal liberty and freedom of movement. At the trial it was established that the Applicant’s mother was a Nigerian citizen. Consequently, the High Court set aside the deportation, dissolved the judicial commission of enquiry and awarded the applicant damages in the sum of N350,000.00 (Three Hundred and Fifty Thousand Naira Only). Dissatisfied with the verdict the respondents appealed to the Court of Appeal. The appeal was dismissed while the reparation was reduced to N50,000.00 (Fifty thousand Naira only).
Pursuant to Section 26 of the 1999 Constitution any person may be registered as a Nigerian citizen by the President if satisfied that he/she is a person of good character and has shown a clear intention to be domiciled in Nigeria. A person who may be so registered include “any woman who is or has been married to a citizen of Nigeria”. But the same right is not conferred on an alien married to a Nigerian woman.

In the case of Dr. Patrick Wilmot v. Attorney-General of the Federation (unreported Suit No: ID/231/88) the Plaintiff, a Jamaican citizen who was a lecturer at the Ahmadu Bello University, Zaria was married to a Nigerian, an indigene of Sokoto State. Notwithstanding his marital status, he was abducted and deported from Nigeria by the Ibrahim Babangida junta for allegedly inciting students. The Plaintiff challenged his deportation at the Lagos State High Court but the suit was dismissed on the ground that as an alien, his right to remain in Nigeria was at the discretion of the Federal Government.
A foreigner living in Nigeria may apply to the President for the grant of a certificate of naturalization provided that he/she is a person of good character and has shown clear intention to be domiciled in Nigeria. In
addition, there must be evidence that the Governor of the State where the person is or proposes to be resident, is of the opinion that he/she is acceptable to the local community where he/she intends to live permanently and has been assimilated into the way of life of Nigerians in that part of the Federation.
Before applying for the grant of naturalization, the person must have resided in Nigeria continuously for a period of fifteen years or resided in Nigeria continuously for a period of twelve months and has resided in Nigeria for periods amounting in aggregate to nor less than fifteen years during the period of twenty years immediately preceding that period.
The political objectives of the State include the abolition of discrimination on the grounds of place of origin, sex, religion, status, ethnic or linguistic association or tiers. Thus, pursuant to section 15(3) of the Constitution the State is under an obligation to promote national integration. Accordingly, it shall be the duty of the State to provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation and secure full residence rights for every citizen in all parts of the Federation.
Being part of the fundamental objectives and directive principles of state policy, the provisions of the Constitution relating to national integration are not justiciable. But any violation of the fundamental rights of citizens to freedom of movement and freedom from discrimination as well as the right to reside, acquire and own property in any part of Nigeria are enshrined in sections 41,42 and 43 of the Constitution can be challenged in a High Court located in the State where the violation occurred.
Furthermore, the right to reside within the borders of a State is equally guaranteed by Article 12(1) of the African Charter on Human and Peoples’ Rights Act (CAP A9) Laws of the Federation of Nigeria, 2004. As community citizens, the right of Nigerians to freedom of movement is also guaranteed by the Economic Community of West African States Protocol on Movement of Goods and Persons throughout the sub-region.

Equal Rights of Citizens

In a bid to arrest lopsidedness in political appointments section 14(3) and (4) of the Constitution has imposed an obligation on the governments to ensure that the composition of the Government or any of its agencies shall be carried out in such a manner as to reflect the federal character of Nigeria and the need to promote national unity so that there shall be no predominance of persons from a few states or local governments or from a few ethnic or other sectional groups in the Government or in any of its agencies. Thus, in constituting the federal cabinet, the President is mandatorily required to appoint at least one Minister from each state who shall be an indigene of such State.
Although the word “indigene” is not defined in the Constitution, it has been interpreted to mean a person whose parents or grandparents belonged or belong to a particular state or local government. The misleading understanding of the concept of indigeneship has led to violent communal clashes among many indigenes and settlers in various parts of the country. In Lafia Local Government v. The Executive Governor, Nasarawa State & Ors. (2012) 17 NWLR (PT 1328) 94, the 1st Respondent directed all unified local government staff serving in local government councils other than their council of origin to relocate to their local government councils while staff who were not of Nasarawa State origin should remain in the councils
where they were working.
The appellants challenged the violation of their fundamental rights to freedom from discrimination at the High Court but the case was dismissed. The appeal filed against the decision of the High Court was allowed by the Court of Appeal which set aside the directive for violating the fundamental right of the appellant to freedom of movement and freedom from discrimination guaranteed by sections 41 and 42 of the Constitution.

According to their Lordships: “The Nigeria democratic constitution in its language exhibits how much value it places on the worth of each and every one of its citizens. It does not and will not condone indeed (will) not tolerate class or ethnic, etc. discrimination whether by any law of the land or way action on the part of any executive or administrative authority or person or the state sharing advantages and even advantages based on sex, race, place of origin, ethnic, religious or political affiliation”.
On further appeal to the Supreme Court the judgment of the Court of Appeal was upheld. In the leading judgment of the apex court, Rhodes Vivour JSC said that the policy was “discriminatory and unconstitutional and clearly offends the provisions of section4(1) which guarantees freedom of movement and section 42(1) which guarantees the freedom from discrimination. It is contrary to the spirit and intendment of relevant sections of the Constitution”.
In his contribution to the judgment Fabiyi JSC stated that “I am at one with the stance of the court below when it found that the policy infringed and/or eroded the constitutional rights of the 3rd-36th respondents relating to discrimination, ethnicity and place of origin syndrome. That should not be the position in a democratic setting guided by fundamental human rights as duly imbued by the Omnipotent”.
In view of the clear provisions of the Constitution and relevant judicial authorities, it is submitted that any discrimination meted out to a Nigerian citizen on the basis of ethnicity or place of origin or circumstances surrounding his/her birth is illegal and unconstitutional by virtue of section 42 of the 1999 Constitution and Article 2 of the African Charter on Human and Peoples’ Rights. I am fortified in my submission by section 43 of the Constitution which has guaranteed the fundamental right of every citizen “to acquire and own immovable property anywhere in Nigeria”.
Therefore, the Federal, State and Local Governments ought to abolish all laws and policies which promote discrimination on the basis of gender, ethnicity and religion. In particular, the government should repeal the provisions of the Federal Character Commission Act which requires married women to take up appointments in their States of origin. In order to promote intermarriage among persons from different places of origin, married women should have the liberty to take up appointments wherever they reside with their families. Indeed, discrimination in appointments is a violation of Article 13(2) and (3) of the African Charter on Human and Peoples Rights Act which provides that “every individual shall have the right of access to public property and services in strict equality of all persons before the law.”

The word “indigene” is derived from the Latin word “indigena” and it means a native or a person born in a particular place or an inhabitant. Under the Federal Character Commission Act an indigene of a State is said to be “a person who is an indigene of one of the local governments in that State, provided that no person shall lay claim to more than one State or to a State and Federal Capita Territory” while an indigene of a local government is defined as a “person either of whose parents was or any of his grandparents was or is an indigene of the local government concerned or accepted as an indigene by the local government, provided that no person shall lay claim to more than one local government”.

But as far as the Constitution is concerned, every Nigerian citizen has a fundamental right to move freely throughout Nigeria and to reside in any part thereof, to acquire and own immovable property anywhere in Nigeria it is submitted that the authorities of local governments are under a legal obligation to accept as an indigene any person who decides to live in any community other than his place of origin. In Director-General, State Security Service v. Olisa Agbakoba (1999) 3 NWLR (PT 595) 314 the Supreme Court held that the right to freedom of movement includes the right to reside in any part of Nigeria.
Having regard to the state of the law it is submitted that the guideline of the Federal Character Commission to the effect that “a married woman shall continue to claim her state of origin for the purpose of appointment is discriminatory, illegal and unconstitutional. In Women Empowerment and Legal Aid vs. Attorney-General of the Federation (Unreported) Suit No: FHC/IKJ/CS/M128/2010 it was held that a Regulation which had barred newly recruited police women from marrying for 3 years was illegal and unconstitutional in so far as it was not applicable to their male counterparts.
In abolishing the dichotomy between indigenes and settlers, citizens who have chosen to reside outside their states or local governments of origin should be fully assimilated into the way of life of their place of residence. The practice of travelling to places of origin by Nigerians to register vehicles should be banned. In the same vein, people should be prohibited from going to their states of origin to take part in census or elections.
In order to end the incessant communal clashes among indigenes and settlers in the country, not a few people have suggested that the rights of an indigene be conferred on any settler who has resided in any community in Nigeria for a period of not less than 10 or 15 years.

With respect, the suggestion is totally uncalled for as Nigerians are not expected to be treated like foreigners in their own country. Indeed, the suggestion flies in the face of sections 41, 42 and 43 of the Constitution which have guaranteed the fundamental rights of every Nigerian citizen to move freely throughout Nigeria, reside, own and acquire property in any part thereof and not to be subjected to disabilities or restrictions on account of their ethnic group or place of birth. Instead of reducing some Nigerians to second rate citizens the State should respect the fundamental right of every citizen to reside in any part of the country and carry out their legitimate business without let or hindrance in accordance with the relevant provisions of the Constitution.

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Mr. Femi Falana, SAN, is a member of the THISDAY Editorial Board.

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