The recent resignation of the Finance Minister, Mrs. Kemi Adeosun, has laid bare a state of confusion within the corridors of power and amongst Nigerians at home and abroad over the interpretation and application of the National Youth Service (NYSC) Act 1973. Nigerians in diaspora stand confused as to their obligations under the law and concerned that they might be barred from bringing their skills and experience back to the service of their homeland. Nigeria on the other hand, with its development challenges, can ill-afford to lose more of its human resources to Countries in the developed West and beyond than it is already doing by scaring away its diaspora. It is in the interest of all concerned that this confusion is cleared up.
What is the NYSC?
The NYSC stands for the ‘National Youth Service Corps’. Members of this Corps are to participate under a structured Scheme governed by Statute.
The NYSC Scheme was established in 1973 in the aftermath of the Nigeria-Biafra War with the object of promoting national reconciliation. Under the Scheme, Nigerian youth who have attained graduate or equivalent level education are required to make themselves available for service for a period of one year in whatever part of the country and in whatever capacity the State may direct as a pre-condition of further employment. The stated objective of the Scheme was to “develop common ties among the Nigerian youths and promote national unity and integration”. The Act remains in force today by virtue of the 1999 Nigerian Constitution.
The “Nigerian Youth”, the “Nigerian” and the point at which the duty to participate in the Scheme arises
The confusion over the application of the law starts early between sections 1 and 2 of the Act. Whilst section 1 (dealing with the objectives of the Act) refers to the Act as applying to “Nigerian youths”, section 2 of the Act imposes the obligation to serve on “every Nigerian”. The “Nigerian youth” is only discerned indirectly by the exemption conferred on the Nigerian who “at the date of his graduation, or obtaining his diploma or other professional qualification…is over the age of thirty”.
The confusion at large extends to the point at which the duty to serve arises. Section 2(1) of the Act provides that “every Nigerian” who graduates from a higher institution either home or overseas (for home graduates from the year 1972 -73 academic year, while in the case of foreign graduates from 1974-75 academic year), upon obtaining the stipulated qualification, shall, unless exempted under the Act, be under an obligation 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”. It is thus clear from this that the legal duty to participate in the NYSC Scheme does not arise until the Nigerian is “served with the appropriate call-up instrument.
Although strictly, a person who has not been served with the call-up instrument cannot participate in the Scheme (the Act in fact makes it an offence for anyone to attempt to participate in the Scheme when they are not eligible), to avoid the handicap on further employment that the Act imposes, many choose to make themselves available to be called up rather than passively waiting to be called to serve. The Directorate of the NYSC has over time, given guidance and issued guidelines on how a ‘person liable’ to participate in the Scheme can be mobilised, and in the case of prospective participants who obtained their qualification from foreign institutions, requiring them to present their documents to the mobilisation office of the Scheme in order to determine their eligibility to participate. There is no known NYSC Mobilisation Office abroad or stationed in any of our Nigerian Embassies or other Diplomatic Agencies abroad. Those abroad are further disadvantaged because while in the case of prospective participants from home-based institutions the officers of their institutions forward the names of new graduates to the NYSC, in the case of graduates from foreign schools, prospective participants are left to approach the NYSC on their own to confirm their eligibility to participate in the scheme.
Who is a Nigerian?
Interestingly, the NYSC Act does not say who a “Nigerian” is and so it is to the definition of a Nigerian citizen in the 1999 Nigerian Constitution that one must look.
In broad terms the Constitution recognises three types of Citizenship: automatic citizenship by birth, citizenship by registration and citizenship by naturalization. A person born, whether in or outside Nigeria, to parents either of whom are Nigerian citizens is a citizen by birth. A person born outside of Nigeria, any of whose grandparents is a citizen of Nigeria can apply for Nigerian citizenship if of full age and capacity.
Further confusion arises from the different positions taken with regard to dual citizenship under the 1979 Nigerian constitution and the 1999 Constitution which replaced it.
Under the 1979 Constitution it was not possible for a Nigerian to hold Nigerian citizenship alongside citizenship of another country. He or she was required to renounce his or her citizenship of the other country “within 12 months of the constitution coming into force or within 12 months of attaining the age of 21”. Failure to do so meant that he or she automatically lost Nigerian citizenship.
As a result of the growing number of Nigerians in the Diaspora and their numerous contributions to the Nigerian Polity, the Babangida Administration amended the offending provision of the 1979 Constitution by promulgating Decree No. 73 of 1992 (10 October 1992) which removed the requirement for Nigerians who held the citizenship of other countries to renounce that citizenship.
Kemi Adeosun as a case study
Mrs. Adeosun was born in England in March 1967 to her parents who were Nigerian citizens by birth. As a consequence Mrs. Adeosun was a Nigerian Citizen by birth; she was at the same time a Citizen of the United Kingdom by virtue of her being born in that Country. Therefore at the beginning of her life Mrs. Adeosun held dual citizenship of Britain and Nigeria. She was 9 when the NYSC Act was passed and 12 when the 1979 Constitution came into force. All the while she was living and schooling in Britain.
As we have seen, under the 1979 Constitution she was allowed to keep her dual citizenship until the age of 21 at which point she had 12 months to renounce her British citizenship in order to keep her Nigerian citizenship. Having turned 21 in March 1989 she had until March 1990 to renounce her British citizenship in order to keep her Nigerian citizenship. She did not renounce her British citizenship and so at the age of 22, in March 1990, her Nigerian citizenship automatically ceased. She graduated in the summer of 1990 and so at the point of graduation she was not a Nigerian within the meaning of the NYSC Act: The law did not apply to her at all and it could not apply to her for as long as she retained her British citizenship and did not renounce it!
When, on 10 October 1992, the Babaginda Administration passed the Decree removing the prohibition on dual citizenship that Decree did not operate to automatically re-invest Mrs. Adeosun with the Nigerian Citizenship that she had lost by virtue of the 1979 Constitution: it merely removed the obstacle to her regaining Nigerian citizenship whilst remaining a British Citizen. By March 1997 when she attained the age of thirty she had not applied for Nigerian Citizenship and consequently had to obtain a Nigerian Visa for her visits. It was only at the age of 34 that she applied for and obtained a Nigerian Passport whereupon she became a Nigerian once again.
It is clear therefore that the NYSC Act 1973 did not apply to Mrs Adeosun at all prior to the cut-off age of thirty and that she was fully entitled to the certificate of exemption that was issued to her. Lawful possession of a certificate to which one is entitled is no misconduct let alone an offence. In any event, the State never discharged its duty to serve on her appropriate call-up papers which alone triggers the duty to serve. The legal position should have been clear to all concerned if proper enquiry was made.
The Position of Nigerians in Diaspora
This embarrassing episode has spawned political clamour for all Nigerians in the Diaspora who have not participated in the NYSC Scheme to be barred from securing any employment or political appointments in Nigeria. This thinking is entirely misconceived and betrays ignorance of the monumental contributions of Nigerians abroad to the well-being of Nigeria from time immemorial. One need only mention the support to the Nigerian Economy and the Naira that Diasporeans have provided through the high remittance figures which is reported to be the highest in sub-Saharan Africa in foreign exchange which they send to Nigeria each year.
As we have explained, the fundamental objective of the NYSC Act was to help unify Nigerians at home after the war in order to create harmony amongst the Citizens and reduce the likelihood of the reoccurrence of another Civil War. The NYSC Act was expressly directed at young graduates and for that reason those graduating after the age of thirty were exempted. It cannot have been the intention that those who have been living abroad away from exposure to the tribal prejudices that the Scheme was designed to overcome and who become Nigerians after the age of thirty should undergo service designed for home-grown youths as a condition of employment within and service to the Country.
Lest we lose more like Kemi Adeosun who are prepared to return to serve their country, the NYSC should hasten to recognise the special status of Nigerians in the Diaspora.
Dele Ogun is a Partner, and Idowu Ibrahim is an Associate Attorney, in OGUN The Law Firm in Lagos. www.ogun.com
Dele Ogun is the senior brother to Mrs. Adeosun and the author of the new history of Nigeria: ‘A Fatherless People’
The authors wish to acknowledge the help of Austin J Otah Esq
This article was previously published in themetrolawyer.com