In our previous outings, we discussed at length, PMB’s travel ban on Nigerians, We contended that it’s illegal, unlawful, wrongful, deprivative and unconstitutional of citizens’ cherished fundamental and inalienable rights. Week this, we will continue our exploration of some judicial precedents and a comparative analysis from other jurisdictions concerning the illegality of the existing executive order 6 as imposed by President Buhari.
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SOME JUDICIAL PRECEDENTS (CONTINUES)
Olisa Agbakoba had in Agbakoba v. Director, SSS ((1999) 3 NWLR (Pt. 595) 340, sued the SSS before a Lagos High Court for violation of his fundamental rights to personal liberty, freedom of thought, freedom of expression and freedom of movement, respectively, as guaranteed under sections 32, 35, 36 and 38 of the 1979 Constitution (now sections 35, 38, 39 and 41 of the 1999 Constitution. He prayed Justice Akinboboye to order the SSS release a his siezed passport. She refused, holding that Olisa didn’t fulfill the court that the passport was his personal property. She said that the passport described the holder as “the bearer” rather than as “the owner”.
Agbakoba, aggrieved by this decision, headed for the Court of Appeal which granted both reliefs earlier refused by lower court. The intermediate court had to choose whether possession of a passport is really a right, or perhaps a mere privilege that could be and whimsically withdrawn by the federal government arbitrarily. Justice Ayoola, JCA (as then was), along with his well-known lucidity, held thus:
“In as far as passport is really a certificate of identity and nationality and at the same time a request in one state to some other to grant entry to the bearer, it stands to reason a passport is generally an important document in the exercise of the discretion by way of a foreign state, which at International law it has in the reception of aliens into its territory. Compared to that extent a passport can be an essential document for entry into foreign countries&hellip normally; I also hold that the possession of a passport today makes exit out of Nigeria possible… the problem that follows out of this conclusion is if the possession of a passport or its withdrawal has any relevance to constitutionality guaranteed freedom of movement, like the right of exit from Nigeria, with which this case is directly concerned…it could thus be observed that as the seizure of passport by way of a government agency including the 1st Respondent could be interpreted as a primary expression of refusal of exit to the citizen, additionally it is a potent curb on the desire of the citizen to visit abroad and an evident clog on the exercise of his right of freedom of movement…
“The freedom of exit guaranteed by our Constitution can’t be exercised with out a passport and that freedom enshrined in section 38 (1), of the Constitution carries with it a concomitant right of each citizen of Nigeria to a passport.”
THE SUPREME COURT’S VERDICT
Although the judgment of the Court of Appeal that the seizure of Agbakoba’s passport amounted to a violation of his to travel abroad as guaranteed by Section 38 (1) of the 1979 Constitution (now section 41 (1) of the 1999 Constitution), was upheld by the Supreme Court, the lead Judgment of the apex court delivered by Lawal Uwais, C.J.N (as then was), walked by way of a different path to arrive at exactly the same answer. At page 352 of the report, Uwais, said:
“In the light of this, I’m satisfied that the state of the SSS concerned in cases like this had no capacity to impound or withdraw the respondent’s passport in the way he did. The impounding was, therefore, unconstitutional and illegal because it offended the provisions of section 38 subsection (1) of the Constitution and section 5 subsection (1) of the Passport (Miscellaneous Provisions) Act. The proper to possess freedom of movement and the freedom to visit outside Nigeria is guaranteed by the Constitution however the to hold a passport is at the mercy of the provisions of the Act. In determining the problems in today’s case, it isn’t, with respect, essential to enjoy the academic exercise of if the to travel abroad is concomitant with the proper to carry a passport. The true issue in contention here’s not if the respondent had the right to carry a passport. He actually had a passport but that was impounded by the official of the SSS already. It really is whether this act by the state was constitutional and legal.”
Michael Ogundare, JSC, elucidated finally, at page 357 that:
“to carry or have a very passport is anciliary to the proper of egress from Nigeria given in section 38 (1). It really is, as held by the court below rightly, per Ayoola, JCA (as then was), concomitant to the proper of egress from Nigeria becomes empty&rdquo or hollow;.
From the analysis of the complete judgment in Agbakoba’s case, it could safely be figured the case will be a good authority for the next propositions:
(a) The proper to visit outside Nigeria is constitutionally guaranteed and protected.
(b) The proper to carry a passport isn’t absolute since it is at the mercy of the provisions of the Passport (Miscellaneous Provisions) Act which empowers, in its section 5, the Minister of Internal Affairs to, at any right time, cancel or withdraw any passport issued to anybody if:
(i) The passport is obtained by fraud;
(ii) The passport has expired;
(iii) An individual unlawfully holds multiple passport concurrently;
(iv) It really is in the general public interest so to accomplish.
(C) Ownership of a passport is really a necessary corollary of the proper to freedom of movement, for this facilitates exit from and entry in to the national country.
A COMPARATIVE ANALYSIS FROM OTHER JURISDICTIONS
THE AFRICAN CHARTER
Article 12 of African Charter on Peoples&rsquo and Human; Rights (Ratification and Enforcement) Act, is in sync with the constitutional provisions coping with freedom of movement in Nigeria. It offers that:
“1. Every individual shall have the proper to freedom of movement and residence within the borders of circumstances provided he abides by regulations.
2. Every individual shall have the proper to leave any national country including their own, and to go back to his country. This right might only be at the mercy of restrictions, provided for for legal reasons for the protection of national security, order and law, public morality or health.”
THE LEGAL POSITION IN AMERICA OF AMERICA
The to travel or freedom of movement has been a concern in america always. As back as 1770 far, Thomas Jefferson had argued, in Howell V. Netherland (Va.) 90 (1770) (The Writings of Thomas Jefferson 474 (1892), that freedom of movement is really a personal liberty by birth. He clarified:
“Beneath the statutory law of nature, all men are born free, everyone makes the global world with the right to their own person, which include the liberty of moving and deploying it at their own will. This is exactly what is called an individual liberty.”
The to travel that is embedded in Article IV of the Articles of Confederation in 1777, caused its enactment in the Immunities and Privileges Clause of Article IV of the U.S. Constitution in 1789.
As a matter of fact, the Confederation travel right was enacted since it was easier to secure mutual friendship and inter-course on the list of people of the various states in the brand new Union. The founding fathers desired that the free inhabitants of hawaii shall be eligible for all privileges and immunities of free citizens in the number of states; and that individuals of each constant state shall have free ingress and regress to and from any state, and shall enjoy therein also, all concomitant privileges of commerce and trade. (To be continued).
THOUGHT FOR THE WEEK
“That is why it’s bad to perform a country by executive order: because our nation runs on laws – when everyone understands the statutory law, and everyone understands what it really is, you know both law and the consequence, and you also get that.” (James Lankford).
Nigerians, week as you commence a new, continue steadily to engage me on a weekly basis in the national conversation, of Sunday Sermon on the Mount of the Nigerian Project by Chief Mike A whilst always awaiting explosive topics.A. Ozekhome, SAN, OFR, FCIArb, Ph.D, LL.D.