The Constitutionality or Otherwise of President Buhari’s Travel Ban on Nigerians (Part 3)
“THE RIGHT TO HAVE FREEDOM OF MOVEMENT AND THE FREEDOM TO TRAVEL OUTSIDE NIGERIA, IS GUARANTEED BY THE CONSTITUTION....”
Curtain Call
Last week, we exhaustively explored the purport, import, plenitude and amplitude of Executive Order 6 (EO 6). We also discussed, at length, PMB’s travel ban on Nigerians, which we contend, is illegal, unlawful, wrongful, unconstitutional, high-handed and deprivative of citizens’, cherished fundamental and inalienable rights. We now examine the implications of a travel ban on citizens, which literally is tantamount to denial of their traveling limbs (passport), a necessary corollary to freedom of movement.
Government’s Travel Ban is highly Unconstitutional
Quite apart from the fact that, EO6 never made provisions banning any Nigerian from travelling (it would have been unconstitutional to do so), the ban on about 50 Nigerians (names not disclosed to date), from travelling, is a grave constitutional aberration. After the right to life (Section 33), right to dignity of the human person (Section 34), right to personal liberty (Section 35), right to fair hearing (Section 36), the right to freedom of movement (Section 41), is so crucial that, without it, a citizen is virtually grounded, chained and manacled, both physically and mentally.
Some Judicial Precedents The Federal Government’s travel ban, is therefore, akin to seizing a citizen’s passport, an act which the Supreme Court deprecated in very stringent terms in Director, SSS v Olisa Agbakoba (1999) 3 NWLR (Pt. 595) 340. In that case, Agbakoba had been invited to a conference in Netherlands, which was to hold between 22nd and 25th April, 1992. On getting to the airport in Lagos, the SSS (they prefer the new sobriquet, DSS) stopped him and impounded his passport, without giving any reasons whatsoever. It was during military tyranny (the reason Agbakoba, my humble self and four other Human Rights Activists founded the first human rights league in Nigeria, the Civil Liberties Organisation (CLO)). He sued the SSS before 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 to release the said passport. She refused, holding that Olisa did not satisfy the court that the passport was his personal property. She said that, the passport referred to the holder as “the bearer” and not as “the owner”.
Agbakoba, aggrieved by this decision, headed for the Court of Appeal which granted two reliefs refused by lower court. The intermediate court had to decide whether possession of a passport is a right, or a mere privilege, which could be arbitrarily and whimsically withdrawn by the government. Justice Ayoola, JCA (as he then was), with his well-known lucidity, held thus:
“In so far as a passport is a certificate of identity and nationality, and at the same time, a request from one State to another, to grant entry to the bearer, it stands to reason that, a passport is normally an essential document in the exercise of the discretion by a foreign State, which at International law it has, in the reception of aliens into its territory. To that extent, a passport is normally an essential document for entry into foreign countries... I also hold that the possession of a passport in modern times, makes exit out of Nigeria possible... the issue that follows from this conclusion is, whether the possession of a passport or its withdrawal has any relevance to the constitutionality guaranteed freedom of movement, including the right to exit from Nigeria, with which this case is directly concerned...it can thus, be seen that, while the seizure of a passport by a government agency such as the 1st Respondent can be interpreted as a direct expression of refusal of exit to the citizen, it is also a potent curb on the desire of the citizen to travel abroad, and an evident clog on the exercise of his right of freedom of movement...
“The freedom of exit guaranteed by our Constitution, cannot be exercised without a passport, and that freedom enshrined in Section 38 (1) of the Constitution, carries with it a concomitant right of every citizen of Nigeria to a passport.”
The Supreme Court’s Verdict Although the judgement of the Court of Appeal, that the seizure of Agbakoba’s Passport amounted to a violation of his right 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 judgement of the Apex Court delivered by Uwais, C.J.N (as he then was), walked through a different route to arrive at the same answer. At page 352 of the report Uwais, C.J.N said:
“In the light of the foregoing, I am satisfied that the official of the SSS concerned in this case, had no power to impound or withdraw the Respondent’s passport in the manner he did. The impounding was, therefore, unconstitutional and illegal, since it offended the provisions of Section 38 subsection (1) of the Constitution and Section 5 subsection (1) of the Passport (Miscellaneous Provisions) Act. The right to have freedom of movement and the freedom to travel outside Nigeria, is guaranteed by the Constitution, but the right to hold a passport is subject to the provisions of the Act. In determining the issues in the present case, it is not, with respect, necessary to indulge in the academic exercise of whether the right to travel abroad, is concomitant with the right to hold a passport. The real issue in contention here, is not whether the Respondent had a right to hold a passport. He, in fact, had a passport already, but which was impounded by an official of the SSS. It is whether such an act by the official, was legal and constitutional.”
Michael Ogundare, JSC, elucidated finally, at page 357 that:
“To hold or possess a passport, is ancillary to the right of egress from Nigeria given in Section 38 (1). It is, as rightly held by the court below, per Ayoola, JCA (as he then was), concomitant to the right of egress from Nigeria becomes hollow or empty”.
Summation From the analysis of the entire judgement in Agbakoba’s case, it can safely be concluded that, the case would be a good authority for the following propositions:
(a) The right to travel outside Nigeria is constitutionally guaranteed and protected.
(b) The right to hold a Passport is not absolute, as it is subject to the provisions of the Passport (Miscellaneous Provisions) Act which empowers, in its Section 5, the Minister of Internal
Affairs to, at any time, cancel or withdraw any passport issued to any person if: (i) The passport is obtained by fraud; (ii) The passport has expired; (iii) A person unlawfully holds more than one passport at the same time; (iv) It is in the public interest so to do. (c)Ownership of a passport is a necessary corollary of the right to freedom of movement, for it facilitates exit from and entry into the country.
A Comparative Analysis from other Jurisdictions African Charter Article 12 of African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, is in sync with the constitutional provisions dealing with freedom of movement in Nigeria. It provides that:
“1. Every individual shall have the right to freedom of movement and residence within the borders of a State provided he abides by the law.
2. Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.”
The Legal Position in the United States The right to travel or freedom of movement, has always been an issue in the US. As far back as 1770, Thomas Jefferson had argued, in Howell v Netherland (Va.) 90 (1770) (The Writings of Thomas Jefferson 474 (1892), that freedom of movement is a personal liberty by birth. He clarified:
“Under the law of nature, all men are born free, everyone comes into the world with a right to his own person, which includes the liberty of moving and using it at his own will. This is what is called a personal liberty.”
The right to travel which is embedded in Article IV of the Articles of Confederation in 1777, brought about its enactment in the Privileges and Immunities Clause of Article IV of the U.S. Constitution in 1789.
As a matter of fact, the Confederation travel right was enacted, because it was better to secure mutual friendship and intercourse among the people of the different States in the new Union. The founding fathers desired that, the free inhabitants of the State shall be entitled to all privileges and immunities of free citizens in the several States; and that the people of each State shall have free ingress and egress to and from any other State, and shall also enjoy therein, all concomitant privileges of trade and commerce.
In Corfield v Coryell 6 Fed. Cas. 546, (E.D, Pa.1823), the US Supreme Court acknowledged the travel right in explaining the relationship between the “free ingress and egress” clause in Article IV of the Articles and the Privileges and Immunities Clause in the Constitution. The Apex Court affirmed that, the privileges and immunities of citizenship also encompass “the right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuit, or otherwise.” (To be concluded next week).