By Barrister Ken Ikonne
There is a recent picture of Kemi Adeosun seated, along with Theresa May, British Prime Minister, behind a standing Vice President Yomi Osinbajo, as the Vice President read a speech on a lectern. In that picture, the erstwhile Nigerian Finance Minister looked devastated and lost. It was easy to imagine the rapacity of the demons haunting her tender soul.
Since she burst onto the national stage in 2015 as the custodian of the finances of Africa’s largest economy, she had projected an image of awesome probity. At times cocky and adversarial, she became the very face of the much vaunted financial reforms and fiscal discipline of an administration that implacably questioned the patriotism and integrity of not just its immediate predecessors, but of all that had come before. But now, before her very eyes, her sinecured and privileged world was about to fall apart: a dark secret had burst open, and tragically, it was all her making.
Accused by an online tabloid of presenting a forged NYSC Exemption Certificate to secure her job as the Finance Minister of the Federal Republic, Mrs Adeosun remained at her desk, and kept mute for more than two months, hoping to ride out the storm while desperate administration officials engaged in frantic doublespeak, in an effort to exonerate her and save her job. Unfortunately for her, the public had grown increasingly obstuse to the subtleness and instinctive inclination of the administration to bend the truth to suit political expediency.
That momentous picture of hers spoke volumes and portrayed a woman utterly broken, and poised between two eras. There was fear, if not trepidation, in those bulbous eyes. And finally, on Friday, Mrs Adeosun buckled under the pressure of moral compunction and resigned her position of Minister of Finance.
She admitted that the NYSC exemption certificate which she procured and had tendered to secure her appointment was forged, but claimed that she had procured it through middlemen and never knew that it was phoney. She explained that she was born in England, and had graduated from the East London Polytechnic at the age of 22, and only acquired the Nigerian passport at the age of 34 when she visited Nigeria for the first time in her life. At the age of 34, according to her, she had thought she was no longer eligible for the mandatory national service, having passed the cut – off age of 30.
Some of her online supporters have added a curious dimension to her defence. They argue that since Mrs Adeosun was born in England, had schooled in England, and had lived in England throughout, and only obtained the Nigerian passport when she was 34 years of age, she was thus, until the point of the acquisition of her Nigerian passport, not a Nigerian citizen, and could not therefore have been eligible for call up to the NYSC scheme before then. And that since at the point of her acquisition of the Nigerian passport, she was four years past the terminal age for call – up, she was thus eligible for exemption from the scheme. This line of defence however fails to explain why Mrs Adeosun had to resort to procuring a forged exemption certificate.
It’s a very bizarre defence. Kemi Adeosun became a Nigerian citizen from the moment she was born – though born on distant shores. It was thus not the acquisition of the Nigerian passport that vested her with citizenship; she acquired the Nigerian passport because it was her constitutional entitlement so to acquire, as a Nigerian citizen. Section 25(1)(c) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, partly defines Nigerian citizenship thus:
“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.”
It has never been contended that Kemi’s parents were not citizens of Nigeria at the time of Kemi’s birth. It is obvious therefore that read side by side with the relevant provisions of the NYSC Act, Kemi does not qualify for exemption from the NYSC scheme. Her decision to obtain the Nigerian passport at the age of 34, whereas she was entitled to it from birth, can certainly not be a factor telling in her favour.
Section 25(1)(C) does not confer a right in FUTURO, to be enjoyed only on the procurement of the Nigerian passport. The section defines who a Nigerian citizen is, clearly and expressly, and once you fall into any of those categories, the fact of your citizenship ensues, and enures, not as a matter of choice, but by OPERATION of law. It was for these reasons, and as a vindication of an already existing citizenship, that Kemi was issued the passport, upon application, and as a matter of right.
If we take a look at the sidenotes to sections 25, 26 and 27 of the Constitution, we will find as follows:
S.25 – “Citizenship by birth.”
S26. – “Citizenship by registration”
S.27. – “Citizenship by naturalization.”
Obviously, the category into which all of us fall, including Kemi, is category “A”, ie, citizenship by birth. To argue, as Kemi’s apologists have done, that Kemi needed to do another overt act, apart from the fact of her birth, to become a Nigerian citizen, is to also say that even you and I can insist that we are not yet Nigerian citizens until we do our own overt act. And it’s even risible that the overt act which Kemi’s apologists prescribe is the acquisition of the Nigerian passport – an administrative acquisition which is completely extraneous to the Constitutional issue under consideration. One has to be a citizen first, whether by birth, naturalization or registration before he can competently apply for the passport. And once a citizen, he automatically becomes subject to all the rights, obligations and incidents of citizenship, free from discrimination, notwithstanding your location. Section 42(1) ensures that much.
There can be little doubt therefore that Kemi Adeosun has always been a Nigerian citizen by birth. And since she graduated at the age of 22, ie, before age 30, she was liable to compulsorily serve, and participate in the one year NYSC scheme before taking up paid employment in Nigeria.See section 2 of the NYSC Act.
For a fuller understanding of the intendment of the Act, it might be necessary now to make a further excursus into other relevant provisions of the Act. By a combined reading of sections 2, 12, and 13 of the Act, the general intendment is the creation of an obligation on eligible Nigerians to compulsorily serve in the scheme, once the person graduates before age 30, unless exempted. By Section 12, every prospective employer in the federation of Nigeria is under an obligation to demand and obtain from every graduate applicant, as a prerequisite for employment, a copy of his NYSC Certificate, or of exemption thereof.
Section 2(3) of the Act only creates a liability to serve in graduates not exempted by section 2(2), without making it a compulsion that the graduate must proceed to service IMMEDIATELY upon graduation, the only stricture being that until he presents himself for service, he will necessarily be caught by section 12 which has made the production of the discharge certificate, or evidence of exemption, a condition precedent for employment. The reason why graduates who do not report immediately for deployment after graduation cannot be said to have committed an offence is provided by section 2(3) of the Act: the non existence of a general or special notice given in a prescribed manner, stipulating when each graduate is to be deployed to serve. The Act authorizes the NYSC directorate to issue such notices, but the logistics of it are so mind boggling that they have never been issued.
In effect therefore, there cannot be an offence strictly against “call – up” until a person has actually been called up, and, according to section 13(1), he “fails to report for service in the service corps in the manner directed by the Directorate or as the case may be, prescribed pursuant to the provisions of this Act.” And as we have already seen, no such standing prescription has been made in the Act, or by the NYSC directorate.
However, once a call up letter is actually served on a person, and he fails to report for service, an offence is thereby committed by virtue of section 13(1). It is this lacuna that permits law graduates to go to law school before serving. The same lacuna avails diasporan Nigerians like Kemi Adeosun, who after graduation stay back for higher qualifications, or take up employment in their countries of abode.
But Mrs Kemi Adeosun returned to Nigeria, and rather than present herself to the NYSC Directorate for deployment for the compulsory one year national service scheme, she, as a child of privilege, proceeded straight to take up high profile paid employment, first as Commissioner For Finance in Ogun State, and beginning from 2015, as Minister for Finance of the Federal Republic. And to facilitate those employments, she tendered a forged exemption certificate, notwithstanding, as we have seen, that she was not eligible for exemption.
Mrs Adeosun has claimed that the forged CERTIFICATE was procured for her by middlemen, and that she did not know that it was forged. However, in the context of our criminal jurisprudence, that line of defence is tenuous and flimsy. Guilt attaches equally to the doer, the enabler, as well as the PROCURER of the commission of the crime. The requisite intent to commit forgery is furnished by the very fact of the engagement of middlemen to do for her what she could have directly approached the NYSC to do for herself. Crucially, and powerfully counting against her is the fact that the law will presume that she knew that she was not entitled to exemption at all, as ignorance is not a defence in law.
Even if Mrs Adeosun successfully defends herself on the offence of forgery, it is difficult to see how she can escape being caught by section 13(4)(C) of the NYSC Act which provides that –
“Any person who….has in his possession any document so closely resembling any certificate so issued as to be calculated to deceive, is guilty of an offence…”
The passion Mrs Adeosun brought to bear on her job does not alleviate the gravity of her offence, though it might be a factor telling in mitigation of punishment. Her offence is another debilitating blow to the community of values which the administration has struggled in vain to inculcate, and would inevitably occasion not only a decisive shift in momentum, but a definite loss of face in the international community, for the Exchequer of a nation is the last place you would expect a forger to lead!
As I write, word has crept in that Mrs Adeosun has slipped out to distant shores, away from a nation from which she had dubiously withheld the youthful labours millions of other youths have so willingly offered since 1973 – sometimes, as we saw in the post election violence of 2011, at the cost of their very lives. If Kemi does search her soul in her her private moments, she will find that her only enduring cartharsis might be to return and give to her nation that which she had infamously withheld from her – or she will forever retain, and be haunted by, the debts of her youth!