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By Martin
Tumasang
Introduction
The Prince
Ndedi Eyango saga has brought the issue of Nationality to prominence amongst
the diaspora community and the local press in Cameroon. I have argued with good
authority on constitutional interpretation and applied various principles to
justify my interpretation (understanding) of the laws to avoid a
discriminatory outcome, where a foreigner might acquire Cameroon
nationality without losing his foreign nationality but a Cameroonian
cannot acquire foreign nationality and preserve his Cameroonian nationality.
I have put a robust argument in favour of an interpretation that is based on
equity, fairness and non-discrimination. But is my interpretation correct?.
Analogous
Nigerian Situation
In order to answer the above question, it
is pertinent to revisit the issue and make sure my conclusions are
not non sequitur. This approach might give a solatium to those who had
opposing views on the issue. I would be a penitus insitus liar if I
say I do not doubt my conclusions and that I do not find myself in a non
redevable position. Without fear of being excoriated for my intellectual
desquamation or peregrination, it is important to explain the source of my
present doubt.
The most
propitious place to start is the Nigerian Supreme Court in the case of Global Excellence Communication Limited vs. Mr. Donald Duke,
Nigerian Supreme Court SC313/2006. Donald Duke was the Executive Governor
of Cross River State and Section
308 of the 1999 Nigerian constitution
stipulated that:
(1)
Notwithstanding anything to the contrary in this Constitution, but subject to
subsection (2) of this section,
(a) No civil or criminal proceedings shall be instituted or
continued against a person to whom this section applies during his period of
office;
(b) A person to whom this section applies shall not be
arrested or imprisoned during that period either in pursuance of the process of
any court or otherwise; and
(c) No process of any court requiring or compelling the
appearance of a person to whom this section applies, shall be applied for or
issued; Provided that in ascertaining whether any period of limitation has
expired for the purpose of any proceedings against a person to whom this
section applies, no account shall be taken of his period of office.…..
(3) This section
applies to a person holding the office of President or Vice-President, Governor
or Deputy Governor
So, in
essence, no one can sue a President, Governor etc. No criminal or civil action
that started before one became governor can be continued nor can new criminal
or civil action be brought against a governor whilst still a Governor. The constitution is
silent on whether a Governor can actually sue someone in his personal capacity
whilst bstill on seat as Governor. If this is possible, it
would be discriminatory i.e. the Governor can sue someone but you cannot sue
him. That would be a terrible law and discriminatory outcome if the
constitution was interpreted in that manner.
The above
is analogous to the Cameroon Nationality law where the law is silent on whether
a foreigner acquiring Cameroonian nationality has to renounce his foreign
nationality.
So how
did the Supreme Court interpret the constitution in the case of the Nigerian
Governor? I am conscious of the constitution interpretation rules developed in A-G of Bendel State vs A-G of the
Federation & ors (1981) 9 S.C (Reprint) 1 at 78 - 79, where Obaseki, J.S.C. stated the principles guiding the
court in interpreting or constructing the provisions of the constitution
to include the following:-
"(1)
Effect should be given to every word.
(2) A
construction nullifying a specific clause will not be given to the Constitution
unless absolutely required by the context.
(3) A
Constitutional power cannot be used by way of condition to attain
unconstitutional result.
(4) The
language of the Constitution where clear and unambiguous must be given its
plain evident meaning.
(5) The Constitution
of the Federal Republic of Nigeria is an organic scheme of government to be
dealt with as an entirety; a particular provision cannot be dissevered from the
rest of the Constitution.
(6) While
the language of the Constitution does not change, the changing circumstances of
a progressive society for which it was designed yield new and fuller import to
the meaning.
(7) A
Constitutional provision should not be construed so as to defeat its evident
purpose.
(8) Under
a Constitution conferring specific powers, a particular power must be granted
or it cannot be exercised.
(9)
Delegation by the National Assembly of its essential legislative function is
precluded by the Constitution (Section 58(4)
and
section 4(1))
(10)
Words are the common signs that mankind make use of to declare their intention
one to another and when the words of a man express his meaning plainly and
distinctly and perfectly, there is no occasion to have recourse to any other
means of interpretation.
(11) The
principles upon which the Constitution was established rather than the direct
operation or literal meaning of the words used, measure the purpose and scope
of its provisions.
(12)
Words of the Constitution are therefore not to be read with stultifying
narrowness."It is with the above principles in mind that the provisions of
section 308 of the 1999 Constitution will be interpreted. However, it is
settled law that the duty of the courts is simply to interpret the law or
Constitution as made by the legislature or the framers of the Constitution. It
is therefore not the Constitutional responsibility of the judiciary to make
laws neither can it amend the laws made by the legislature. It must therefore
be borne in mind always that courts cannot amend the Constitution neither can they
change the words used in crafting it. I had earlier reproduced the provisions
of section 308 of the 1999 Constitution in this judgment and it is my
considered view that the provisions are very clear and unambiguous. It is now
settled that:"
Having
stated the above general principles, how did the court decide?. Can the
constitution be interpreted to allow the Governor to go around suing people
when no one can sue him?. Can the courts allow such discrimination?
The
Nigerian Supreme Court held in the case where Donald Duke (governor of Cross
River) instituted a liable case against a newspaper in his personal capacity
that “..From the words used by
the framers of section 308 of the 1999 Constitution, it is clear that their
intention is explicitly to confer absolute immunity on the respondent and the
others therein mentioned without a corresponding disability on them to the
exercise of their rights to institute actions in their personal capacities in
any relevant court of law for redress during their tenure of office, as in the
instant case. The above view finds support in the dictum of Ayoola, J.S.C. in
Tinubu vs I.M.B. Securities PLC (supra) at 721 - 722 where the following view
is expressed:-"Thirdly, I am unable to construe a provision of the Constitution
that granted an immunity such as section 308(1) as also constituting a
disability on the person granted immunity when there is not provision to that
effect, either expressly or by necessary implication in the enactment. If
makers of the Constitution had wanted to prohibit a person holding the offices
stated in section 308 from instituting or continuing action instituted against
any other person during his period of office, nothing would have been easier
than to provide expressly that: 'no civil or criminal proceeding shall be
instituted against any person by a person to whom this section applies during
his period of office and no civil or criminal proceedings shall be instituted
or continued against such a person during his period in office' Or in like terms.
The makers of the Constitution in their wisdom did not so provide."I
entirely agree with the above dictum and adopt same as mine in this judgment. I
consequently reject the contrary dicta of Karibi-Whyte and Kalgo, JJSC in the
case of Tinubu vs I.M.B. Securities P.L.C at 708 and 718 cited and relied upon
by learned counsel for the appellants as the same are not in accord with the
clear intention of the framers of section 308 of the 1999 Constitution. I also
do not agree with the submission of learned counsel for the appellants that a
confirmation of the interpretation of section 308 of the 1999 Constitution by
the lower court would lead to absurdity particularly as a contrary
interpretation would be adding to the said provision what is not expressly
stated or intended, or putting unnecessary strain on that section which strain
the said section will be unable to bear. In conclusion, I resolve the lone
issue in this appeal against the appellants and hold the considered view that
the appeal is without merit whatsoever and deserves to fail”.
Conclusion
If makers
of the Nationality law had intended to restrict foreigners when acquiring
Cameroon nationality, they could have said so clearly. Reading too much in the
section dealing with acquiring Cameroon nationality might be too much for the
section to bear. Despite the discrimination in the interpretation, it is not a
foregone conclusion that the court will interpret it to get the harmony that is
sought.
The court
might claim that there is no absurdity and that the words of the nationality
law are clear enough. Perhaps, a Cameroonian with dual nationality is a more
serious threat to national security than say an American who also acquires
Cameroon nationality. The American might never want to be president
so no danger to the top dog.
Based on
the above, I cannot dismiss completely the possibility that the courts in
Cameroun might interpret the Nationality law in the discriminatory manner. We
still have to wait until a decision on the issue is taken by a superior
court in Cameroon.
Dr. Martin Tumasang is a Barrister
at law, Advocate/Notary Public/Solicitor, International Arbitrator, Chartered
Valuation Surveyor, Principal Quantity Surveyor, Claims Quantum Consultant. He lives in England and he could be reached via email @ Tumasangm@hotmail.com
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