Legal Position On Buhari's Educational Qualifications

The controversy over the exact status of the presidential candidate of the All Progressives Congress, Maj. Gen. Muhammadu Buhari’s educational qualifications in relation to his eligibility to aspire for election into the office of the President of the Federal Republic of Nigeria had been generating
intense debate in recent time, forcing a closer examination of relevant constitutional provisions with a view to offering insights into the legal position on the matter.

Let me start by saying that the issue as to whether Buhari or any other candidate is eligible in terms of educational qualifications to aspire to the office of the President of Nigeria is not a trivial matter or a non-issue, but one of fundamental and constitutional significance that clearly falls within the realm of issue-based campaign. I therefore disagree with any suggestion that those raising the issue are petty or engaging in any smear campaign against Buhari’s candidacy. It is therefore proposed in this intervention to examine relevant constitutional provisions on the matter, including judicial attitude through the cases in order to assist informed analysis on the subject matter.

Section 131(d) of the Constitution of the Federal Republic of Nigeria (as amended) dealing with qualification for election for the office of the President provides as follows:

“A person shall be qualified for election to the office of the President if -

…he has been educated up to at least school certificate level or its equivalent.”

On the surface, one may be inclined to think that the clear import of this constitutional provision is that the minimum qualification that an aspirant for such exalted high office must possess is education up to at least the secondary school level. What then is the meaning of the phrase ‘minimum’?

The Black’s Law Dictionary, 8th edition, page 1016 defines ‘minimum’ as follows:

“Of, relating to, or constituting the smallest acceptable or possible quantity in a given case…”

The question that arises is whether in the light of the above constitutional provision, such aspirant necessarily must acquire such secondary school certificate or whether merely passing through the four walls of a secondary school without graduation from the said secondary school will suffice to satisfy the provision. In the case of HASKE V MAGAGI (2008) 3 LRECN PG. 127 AT 130 RATIO 2, the Court of Appeal, Kaduna Division held on the meaning of ‘Education up to secondary school certificate level or its equivalent as follows:

“Section 318(1) of the 1999 Constitution defines, “school certificate or its equivalent” in sub-paragraph (b) thereof to inter alia, mean, “education up to secondary school certificate level.” It is the law that where a word or phrase has been legally defined in an enactment, not only will its ordinary or popular meaning give way, its meaning according to its definition in another legislation can also not be imported into the enactment in which it has also been defined. See Yaro v Kurdah & Anor (1989) 1 NEPLER 1. Thus, in a number of decided cases, this court held that the meaning or the definition of the level “school certificate” or its equivalent as contained under Section 318 of the 1999 Constitution, can accommodate a candidate who woefully failed in their bid to obtain a West African School Certificate. They are described as WASC “attempted” to “failures”. In essence, a candidate need not to have obtained the secondary school certificate level or passed the Secondary School Certificate Examination. It is sufficient that such a person has attended a secondary school and read or studied up to the secondary school level, without passing and obtaining the certificate. See Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544; (2003) 3 LRECN 114. Chukwu v. Icheonwo (1999) 4 NWLR (Pt. 800) 597; (1999) 4 LRECN 332. (Pp. 143-144, paras, G-C).”

Similarly, in the case of AIKULOLA VS. AKOGWU (2006) 41WRN pg. 29 – 111 particularly at 46 ratio 11, the Court of Appeal, Abuja Division, while construing the meaning of the words ‘school certificate’ under Section 318 of the 1999 Constitution, held as follows:

“Under section 318 of the 1999 Constitution, the word “school certificate” or its equivalent means:

(a) Secondary School Certificate or its equivalent or Grade II Teachers Certificate, the City and Guilds Certificate; or

(b) Education up to Secondary school level; or

(c) Primary Six Leaving Certificate or its equivalent plus

(i) Service in the public or private sector at the federal level in any capacity acceptable to the Independent National Electoral Commission for a minimum of 10 years and

(ii) Attendance at course and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totaling up to a minimum of one year; and

(iii) The ability to read, write and understand and communicate in the English language to the satisfaction of the commission.

In effect, a person seeking to become a candidate for an election to the House of Assembly of any State in the Federal Republic of Nigeria must possess at least one of the qualifications set out in (a) or (b) or (c) above. See Bayo v. Njidda (2004) 8 NWLR (Pt. 876) 544 at 618 – 620.

According to Per Odili, JCA (Pp. 81 – 82) lines 45 – 35, ‘School certificate or its equivalent’ means -

(a) A secondary school certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or (G) education up to Secondary School Certificate level; or (c) Primary Six School Leaving Certificate or its equivalent.”

Per Rhodes-Vivour, JCA (P. 104) lines. 30 – 45, in the case of DIGAI V. NANCHANG (2003) 2 LRECN pg. 513 – 546 at pg. 515 ratio 4 dealing with the requisite educational qualification for membership of a state House of Assembly, the Court of Appeal, Jos Division held as follows:

“From the provision of Section 106(c) of the Constitution of the Federal Republic of Nigeria, 1999, all that is required of a member of a House of Assembly by way of educational qualification, is that he has been educated up to the school certificate level or its equivalent.

“A close reading and analysis of Section 106(c) and Section 318 clearly shows that all that is required of a candidate for the membership of House of Assembly, is that he had attended a secondary school up to school certificate level or its equivalent. To my mind, a testimonial from secondary school showing clearly that the 1st respondent attended and completed a secondary school as prescribed in section 106 (c) of the Constitution is sufficient. What is required under the law is that there must be evidence that a candidate is educated up to the school certificate level, and not that he must produce a certificate to that effect. (Pp. 542-543, paras G-D)”.

On whether the candidate need possess such school certificate to be eligible to contest, the same court held in the same ruling as follows:

“I agree that since there is evidence that the 2nd respondent sat for the School Certificate Examination on May/June 1975, this is sufficient to satisfy the requirement of Section 10(c) of the Decree. While the acquisition of sound education may be desirable to enable one discharge the functions as Chairman of Local Government Council, it is not absolutely necessary that such a person must possess a certificate to enable him to function effectively.” (P. 545, paras. B-D)”.

The other issue that is relevant is the question of who has the burden of proof; whether it is the candidate who is aspiring for the public office that must show that he has passed through a secondary school or the person alleging otherwise that must show that the aspirant does not hold such qualification. The answer to this poser was given in the case of Haske v. Mogaji (supra) where the court held on the question of onus to prove as follows:

“It is both legal and logical that the mere fact that a party has pleaded in his petition that the other party is not qualified to contest an election, because he lacked the requisite educational qualification, is not sufficient for the Tribunal to latch unto it and decide on it, in the absence of cogent and credible evidence of such non-qualification or disqualification being placed before the Tribunal. In the absence of evidence, such a plea in the petition ends and/or terminates with the petition”.

It is clear from the foregoing that it is the person alleging non-qualification of the candidate that has the responsibility of showing by cogent or convincing evidence that such aspirant never attended any such Secondary School as alleged.

The foregoing analysis may have revealed the following:

(a) Buhari’s eligibility to contest for the office of the President of Nigeria can only be challenged if those making the allegation can show either that he has never attended any secondary school, that he never possessed any primary school leaving certificate, that he has never served in any public service for a period of 10 years in addition to his primary school certificate or that he has never sat for any school certificate examination.

It is immaterial whether he passed or failed such examination. To succeed, they must also show that he does not possess any higher qualification above the minimum requirement of secondary school certificate. In other words, they must show that all certificates acquired by the General in consequence of his military training at home and abroad, culminating in his rising to the position of a Major General in the Nigerian Army, were certificates below secondary school level or certificate. It is those making these allegations who must prove the allegations against the General. It is not the General who must show that he possesses such qualifications. The law is, ‘He who asserts must prove’.

(b) The Army authorities had publicly admitted that they have records of Buhari’s educational qualifications in their custody. The Army being a public institution can furnish the Certified True Copies of Buhari’s educational qualifications to appropriate authorities including INEC at the request of those making the allegations without bordering the General for such obligations.

It can be said that those who have raised the issue of the General’s qualifications and eligibility may have served patriotic intentions, but they need to do more by showing through concrete, cogent, compelling and believable evidence that the General neither attended any secondary school nor possesses any primary school leaving certificate including showing that his period of service in the army including service as Head of State of Nigeria in total do not rank up to 10 years for them to succeed in their patriotic crusade.

Finally, having raised the constitutional issue of qualification, no doubt an issue-based campaign, those interested in taking the issue further are advised to be guided by judicial pronouncements quoted copiously above if they want to be taken seriously. However, if they are basing their conclusion on speculations not backed up with empirical evidence, it is wise to advise them to consider the issue as closed while moving to other issues in the campaign that ought to be dictated by issues and not sentiments.

Shittu, a legal practitioner, wrote in from Lagos