Essay
BY PROF. MIKE A. A. OZEKHOME, SAN, CON, OFR, LL.D.
INTRODUCTION
We commenced this treatise last week addressing the legal and human
rights implications of passport seizures, retention, revocation, and
deprivation, focusing on their impact on freedom of movement. We also
examined the constitutional right to movement under Nigerian law and
whether the requirement for a passport is a justifiable restriction on this
right. Today, we shall continue with same and later delve into and conclude
with discussing whether withholding a passport infringes on citizenship or
public safety concerns and explore the broader significance of a passport
as evidence of identity and nationality. Please come with me.
WHAT ARE THE REQUIREMENTS OF CITIZENSHIP UNDER THE LAW?
The answer to this question is contained in the provisions of Sections 25,
26, 27, 28, 29, 30 and 31 (Chapter III) of the Constitution, which
recognizes different categories of Nigerian citizenship, namely by birth,
naturalisation and registration and their incidents. It is pertinent to mention
that, apart from the other two categories of citizenship recognized by the
Constitution, as aforesaid (i.e., by naturalization and by registration), the
category of citizenship by birth provided for under section 25 of the
Constitution clearly enjoys a superior status. This is because, unlike the
other two, it cannot be taken away from any Nigerian who happens to fall
within that class. This is clearly borne out by the provisions of Sections
28(1) and 30(2) of the Constitution, which expressly state, inter alia, that:
- Section 28(1): “a person shall forfeit forthwith his Nigerian
citizenship if, not being a citizen of Nigeria by birth, he acquires or
retains the citizenship or nationality of a country other than Nigeria, of
which he is not a citizen by birth” and
Section 30(2). – “The President shall deprive a person other than a
person who is a citizen of Nigeria by birth, of his citizenship, if he is
satisfied from the records of proceedings of a court of law or other
tribunal, or after due inquiry in accordance with regulations made by
him, that-
(a) The person has shown himself by act or speech to be disloyal
towards the Federal Republic of Nigeria; or
(b) The person has, during any war in which Nigeria was engaged
unlawfully traded with the enemy or been engaged in or associated
with any business that was … communicated with such enemy to the
detriment of or with intent to cause damage to the interest of Nigeria”.
That being the case, I believe that it is curious for the Nigerian State to
possess the capacity to deprive, withdraw, revoke or suspend the
passports of Nigerian citizens by birth as was done (with the approval of
the Supreme Court), in Director, DSS v AGBAKOBA, supra. Given its
importance as virtually the only case on the issue, it is worthwhile to
discuss it in extenso.
The Respondent, Olisa Agbakoba, was invited by the Netherlands
Organization for International Development and Cooperation (NOVIB) to
attend a conference which was scheduled to take place between 22 nd and
25 th April, 1992. On 21 st April, 1992, he went to Murtala Muhammed
International Airport, at Ikeja Lagos with a view to traveling to The Hague in
the Netherlands. However, he could not board the plane because he was
stopped by officers of the Nigerian State Security Service (SSS) who
impounded his passport without giving any reason for the seizure. After
fruitless efforts to regain the passport, the Respondent instituted a suit
under the Fundamental Rights (Enforcement Procedure) Rules seeking
inter alia:
“1. A Declaration that the forceful seizure of the applicant’s passport
No. A 654141 by agents of the State Security Services (Sic) (1st
Respondent herein) on April 21, 1992 is a gross violation of the
applicant’s right to personal liberty, freedom of thought, freedom of
expression and freedom of movement respectively guaranteed under
Section 32, 35, 36 and 38 of the Constitution of the Federal Republic
of Nigeria 1979 (as amended) and is accordingly unconstitutional and
illegal.
- An order of mandatory injunction directing the respondents to
release applicant’s passport No. A 654141 to him forthwith.”
The application which was filed in the High Court of Lagos State went
before Akinboboye J. who refused it on the ground that the Respondent
failed to satisfy the court that the passport was his personal property, and
that the passport referred to the holder as “the bearer” and not “the owner”.
Aggrieved by the decision, the Respondent appealed to the Court of
Appeal which allowed the appeal and granted the two reliefs earlier set out.
Being dissatisfied with the Judgment, the Appellants appealed to the
Supreme Court. The important issue which the court has to determine in
the case was whether the seizure of the Respondent’s passport by officers
of the S.S.S. was in contravention of his right to freedom of movement as
guaranteed by Section 38 (1) of the 1979 Constitution which was then in
force in Nigeria. In determining this issue the court necessarily had to
decide whether possession of a passport is a right or a mere privilege
which could be withdrawn by the Government in view of the decision of the
trial court that the Respondent did not satisfy it that the passport was his
personal property. At the Court of Appeal, Ayoola J.C.A (as he then was)
who delivered the leading Judgment of that court had this to say on the
point:
“In so far as 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
constitutionally guaranteed freedom of movement,
including the right of exit from Nigeria, with which
this case is directly concerned….it can thus be seen
that while the seizure of 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.”
Thus in the view of His Lordship there is a conflict in the statement
endorsed on Nigerian Passports that the Passport remains the property of
the Government of the Federal Republic of Nigeria and the right which
accrues to every citizen to hold such a Passport. The consequence of a
passport being the property of the Government is, according to His
Lordship, that the holder cannot deal with it as he pleased. He cannot
transfer, sell or otherwise dispose of it. If for instance he ceases to be a
citizen of Nigeria, he has an obligation, if requested, to return it to the
‘owner’, and the Nigerian Government as the owner of the passport has a
right to recover the passport from anyone else who is not entitled to hold it.
His Lordship then concluded that:
“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.”
Although the Judgment of the Court of Appeal that the seizure of the
Respondent’s Passport amounted to a violation of his right to travel abroad
guaranteed by Section 38 (1) of the Constitution was upheld by the
Supreme Court, the leading Judgment of the apex court delivered by
UWAIS C.J.N adopted a different line of reasoning to arrive at the same
conclusion. At page 352 of the report UWAIS, C.J.N said:
“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.”
The C.J.N opined that the official of the SSS concerned in the case had no
power to impound or withdraw the Respondent’s passport in the manner he
did. The impounding was, illegal since it violated the provisions of Section
38 Subsection (1) of the Constitution and Section 5 Subsection 1 of
the Passport (Miscellaneous Provisions) Act. His Lordship held that the
right to freedom of movement and the freedom to travel outside Nigeria is,
according to guaranteed by the Constitution but the right to hold a passport
was subject to the provisions of the Act.
The leading and majority Judgment of the court considered the question
whether the right to travel abroad was concomitant with the right to hold a
passport as posited by the Court of Appeal and the concurring Judgments
of Ogundare, Ogwuegbu, and ONU, JJ.S.C agreed with the intermediate
appellate court (per Ayoola, J.C.A as he then was) that the right to hold a
passport was concomitant with the guaranteed right to travel abroad. Thus,
to the extent that only three out of the seven Justices of the court that
adjudicated over the case agreed with the Court of Appeal on this point, the
view that the right to hold a passport is concomitant with the right of exit
from Nigeria which was guaranteed by Section 38 (1) of the 1979
Constitution (now Section 41(1) of the 1999 Constitution) was an obiter
dictum. TO BE CONTINUED…
Thought for the week
“Life without liberty is like a body without spirit”. (Kahlil Gibran).
24th November, 2024.
C.E.
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