Kemi Adeosun’s NYSC Controversy: Where The Federal High Court Got It Right And Wrong

By O. G. Chukkol, ACIArb (UK)

Introduction

Kemi Adeosun, who served as Minister of Finance under President
Muhammadu Buhari from November 11, 2015, to September 14, 2018,
voluntarily resigned the position over an allegation of her
non-participation in the National Youths Service Corps, NYSC
scheme. She subsequently approached the Federal High Court Abuja,
through her lawyer, Chief Wole Olanipekun, SAN, to determine her
eligibility or otherwise to participate in the NYSC scheme. The
suit was marked FHC/ABJ/CS/303/2021 with the Attorney-General of
the Federation as the Defendant.

This article aims to analyze the decision of the Federal High
Court to see if it can stand in the light of our Constitutional
jurisprudence, relevant laws and decided cases. To achieve this
aim, the article shall first discuss Adeosun’s citizenship as at
the time she graduated from the University in 1989 and her current
citizenship status. Thereafter, her eligibility for NYSC will be
analyzed and then conclusion will be reached as to whether the
issue of her citizenship as at the time of graduation is relevant
in the first place in determining her eligibility for NYSC.

Citizenship of Adeosun

Immediately after deciding rightly that NYSC certificate is not
a precondition for appointment as a minister, the next issue
considered by the High Court was whether Kemi Adeosun was a
Nigerian citizen as at 1989 when she graduated from the University
in UK. The court took a position that Adeosun was not a Nigerian
citizen, but a UK citizen. The court held thus:

“The plaintiff was born in London, United Kingdom which she be
came as a result of Citizen of the U.K. She studied in the UK from
the primary school up till the University level when she graduated
at the age of 22 in 1989…. She was a citizen of the United Kingdom
when  she graduated from the University at the age of 
22.”

How do we reconcile the above finding with Section 23(1)(c) of
the 1979 Constitution? The section provides that “the following
Persons are Citizens of Nigeria by birth, namely (c) every person
born outside Nigeria either of whose parents is a citizen of
Nigeria “.

Since Kemi Adeosun’s parents were Nigerians, was it not logical
and indeed the intendment of the drafters of the 1979 Constitution
that she automatically became a Nigerian citizen? Citizenship by
birth was an issue in the recent case of Ahmed v Minister of
Internal Affairs (2017) LPELR-CA/K/199/2014. What happened in this
case was that following complaints against the Appellant’s
activities by residents of Zaria Local Government in Kaduna State,
the Security Agencies, on proof garnered by them that the
Appellant, an Islamic Scholar, was not a citizen of Nigeria,
effected his deportation to the Niger Republic. He filed an
Originating Summons for a declaration that his deportation to Niger
Republic was illegal and constituted a violation of his Fundamental
Right to freedom of movement. The action failed on the basis that
none of his parents was a Nigerian. The court held thus:

“The Appellant claims that he is a citizen of Nigeria by birth,
under Section 23 (1) (a) Supra. He has however not been able to
prove that any of his parents or grandparents belong to a community
indigenous to Nigeria.”

A careful perusal of Justice Taiwo’s judgment shows that he did
not advance reasons to support his finding that Kemi Adeosun was a
UK citizen. However, it appears his position was premised on Chief
Olanipekun’s argument that Adeosun was not a citizen of Nigeria by
operation of section 26 of the 1979 Constitution. The section
prohibits dual citizenship. Thus, any citizen of Nigeria who
acquired the citizenship of another country automatically forfeited
Nigerian citizenship. This  was so except such a person was a
citizen by birth, and retained or renounced his other citizenship
by the age of twenty-one or within one year of the coming into
force of the 1979  Constitution.

In the light of the foregoing, Justice Taiwo’s decision is
faultless and unassailable. Kemi Adeosun was not a Nigerian citizen
as at 1989 when she graduated from the University by reason of
section 26 of the 1979 Constitution.

Kemi Adeosun’s Current Citizenship Status

The position under 1979 Constitution which prohibited dual
citizenship has been altered by the 1999 Constitution. By virtue of
section 25(1)(c) thereof, any person born outside Nigeria
automatically becomes a Nigerian if either of his parents is a
Nigerian. Thus, Kemi Adeosun is a Nigerian citizen by birth
irrespective of the fact that she is also a UK citizen since her
parents are Nigerians. We would come back to why we discussed her
current citizenship status shortly.

Eligibility of Adeosun to do NYSC

Justice Taiwo also held that Adeosun was not eligible to go for
NYSC because though she was 22 as at 1989 when she graduated from
the University, she was a UK citizen. This position is correct
because only Nigerians are eligible to go for NYSC. For example,
Section 2(1) of NYSC Act provides that,

“every NIGERIAN shall be under an obligation, unless exempted
under subsection (2) of this section or section 17 of this Act, to
make himself available for service for a continuous period of one
year from the date specified in the call-up instrument served upon
him.”

Since Adeosun wasn’t a Nigerian as at 1989, then Justice Taiwo
was correct when he held that she was not under obligation to
submit herself for NYSC then.

However, there are fundamental issues that cannot be dismissed
with a wave of a hand. Justice Taiwo said “From the time she
(Adeosun) graduated and moved to Nigeria sometime in 2003, she was
already 36years old…. She was not eligible under the  NYSC Act
to serve in the National Youth Service  Scheme.  In fact,
it would have been  criminal offence if she had participated
in the  NYSC under any  guise.”

The issues in the above statement by Hon. Justice Taiwo are as
follows: now that Kemi Adeosun has become a Nigerian citizen by
virtue of 1999 Constitution, is she under obligation to go for
NYSC? If yes, is she not above the age bracket stipulated by
law?

We have already settled that NYSC is for Nigerians only. The
implication is that she is now under obligation to serve. As to
whether her current age is above the one stipulated by law, Section
2(2) of the NYSC Act says “a person shall not be called upon to
serve in the service corps if, at the DATE OF HIS GRADUATION or
obtaining his diploma or other professional qualification-(a) he is
over the age of thirty.”

The implication of the above provision is that age for
eligibility for NYSC is determined by age of graduation, not the
time service is applied for. This means since Adeosun was 22 in
1989, she is under obligation to do NYSC even today.

Concluding Remarks

No doubt Kemi Adeosun was not a Nigerian as at 1989 when she
graduated from a university in UK. However, such argument is
unnecessary because now that she is a Nigerian, she is under
obligation to serve. The argument that she is now above 30 is of no
moment because the age that is considered in calculation is her age
during graduation (22) not her current age.

By O. G. Chukkol, ACIArb (UK)

Introduction

Kemi Adeosun, who served as Minister of Finance under President
Muhammadu Buhari from November 11, 2015, to September 14, 2018,
voluntarily resigned the position over an allegation of her
non-participation in the National Youths Service Corps, NYSC
scheme. She subsequently approached the Federal High Court Abuja,
through her lawyer, Chief Wole Olanipekun, SAN, to determine her
eligibility or otherwise to participate in the NYSC scheme. The
suit was marked FHC/ABJ/CS/303/2021 with the Attorney-General of
the Federation as the Defendant.

This article aims to analyze the decision of the Federal High
Court to see if it can stand in the light of our Constitutional
jurisprudence, relevant laws and decided cases. To achieve this
aim, the article shall first discuss Adeosun’s citizenship as at
the time she graduated from the University in 1989 and her current
citizenship status. Thereafter, her eligibility for NYSC will be
analyzed and then conclusion will be reached as to whether the
issue of her citizenship as at the time of graduation is relevant
in the first place in determining her eligibility for NYSC.

Citizenship of Adeosun

Immediately after deciding rightly that NYSC certificate is not
a precondition for appointment as a minister, the next issue
considered by the High Court was whether Kemi Adeosun was a
Nigerian citizen as at 1989 when she graduated from the University
in UK. The court took a position that Adeosun was not a Nigerian
citizen, but a UK citizen. The court held thus:

“The plaintiff was born in London, United Kingdom which she be
came as a result of Citizen of the U.K. She studied in the UK from
the primary school up till the University level when she graduated
at the age of 22 in 1989…. She was a citizen of the United Kingdom
when  she graduated from the University at the age of 
22.”

How do we reconcile the above finding with Section 23(1)(c) of
the 1979 Constitution? The section provides that “the following
Persons are Citizens of Nigeria by birth, namely (c) every person
born outside Nigeria either of whose parents is a citizen of
Nigeria “.

Since Kemi Adeosun’s parents were Nigerians, was it not logical
and indeed the intendment of the drafters of the 1979 Constitution
that she automatically became a Nigerian citizen? Citizenship by
birth was an issue in the recent case of Ahmed v Minister of
Internal Affairs (2017) LPELR-CA/K/199/2014. What happened in this
case was that following complaints against the Appellant’s
activities by residents of Zaria Local Government in Kaduna State,
the Security Agencies, on proof garnered by them that the
Appellant, an Islamic Scholar, was not a citizen of Nigeria,
effected his deportation to the Niger Republic. He filed an
Originating Summons for a declaration that his deportation to Niger
Republic was illegal and constituted a violation of his Fundamental
Right to freedom of movement. The action failed on the basis that
none of his parents was a Nigerian. The court held thus:

“The Appellant claims that he is a citizen of Nigeria by birth,
under Section 23 (1) (a) Supra. He has however not been able to
prove that any of his parents or grandparents belong to a community
indigenous to Nigeria.”

A careful perusal of Justice Taiwo’s judgment shows that he did
not advance reasons to support his finding that Kemi Adeosun was a
UK citizen. However, it appears his position was premised on Chief
Olanipekun’s argument that Adeosun was not a citizen of Nigeria by
operation of section 26 of the 1979 Constitution. The section
prohibits dual citizenship. Thus, any citizen of Nigeria who
acquired the citizenship of another country automatically forfeited
Nigerian citizenship. This  was so except such a person was a
citizen by birth, and retained or renounced his other citizenship
by the age of twenty-one or within one year of the coming into
force of the 1979  Constitution.

In the light of the foregoing, Justice Taiwo’s decision is
faultless and unassailable. Kemi Adeosun was not a Nigerian citizen
as at 1989 when she graduated from the University by reason of
section 26 of the 1979 Constitution.

Kemi Adeosun’s Current Citizenship Status

The position under 1979 Constitution which prohibited dual
citizenship has been altered by the 1999 Constitution. By virtue of
section 25(1)(c) thereof, any person born outside Nigeria
automatically becomes a Nigerian if either of his parents is a
Nigerian. Thus, Kemi Adeosun is a Nigerian citizen by birth
irrespective of the fact that she is also a UK citizen since her
parents are Nigerians. We would come back to why we discussed her
current citizenship status shortly.

Eligibility of Adeosun to do NYSC

Justice Taiwo also held that Adeosun was not eligible to go for
NYSC because though she was 22 as at 1989 when she graduated from
the University, she was a UK citizen. This position is correct
because only Nigerians are eligible to go for NYSC. For example,
Section 2(1) of NYSC Act provides that,

“every NIGERIAN shall be under an obligation, unless exempted
under subsection (2) of this section or section 17 of this Act, to
make himself available for service for a continuous period of one
year from the date specified in the call-up instrument served upon
him.”

Since Adeosun wasn’t a Nigerian as at 1989, then Justice Taiwo
was correct when he held that she was not under obligation to
submit herself for NYSC then.

However, there are fundamental issues that cannot be dismissed
with a wave of a hand. Justice Taiwo said “From the time she
(Adeosun) graduated and moved to Nigeria sometime in 2003, she was
already 36years old…. She was not eligible under the  NYSC Act
to serve in the National Youth Service  Scheme.  In fact,
it would have been  criminal offence if she had participated
in the  NYSC under any  guise.”

The issues in the above statement by Hon. Justice Taiwo are as
follows: now that Kemi Adeosun has become a Nigerian citizen by
virtue of 1999 Constitution, is she under obligation to go for
NYSC? If yes, is she not above the age bracket stipulated by
law?

We have already settled that NYSC is for Nigerians only. The
implication is that she is now under obligation to serve. As to
whether her current age is above the one stipulated by law, Section
2(2) of the NYSC Act says “a person shall not be called upon to
serve in the service corps if, at the DATE OF HIS GRADUATION or
obtaining his diploma or other professional qualification-(a) he is
over the age of thirty.”

The implication of the above provision is that age for
eligibility for NYSC is determined by age of graduation, not the
time service is applied for. This means since Adeosun was 22 in
1989, she is under obligation to do NYSC even today.

Concluding Remarks

No doubt Kemi Adeosun was not a Nigerian as at 1989 when she
graduated from a university in UK. However, such argument is
unnecessary because now that she is a Nigerian, she is under
obligation to serve. The argument that she is now above 30 is of no
moment because the age that is considered in calculation is her age
during graduation (22) not her current age.