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Bearing a passport: A right or a privilege in Nigeria? (2)

By Awa Kalu

The Agbakoba case, supra, found its way to the Supreme Court [See Director, SSS v. Agbakoba (1999) 3 NWLR (Pt. 595) 314]. At the Supreme Court, Onu JSC, in a concurring opinion stated as follows: “In the United Kingdom, for instance, the Court of Appeal observed that ‘the grant or refusal of a passport… (affects) the right of individuals and their freedom to travel’ (per, Taylor, L.J. in R v. Secretary of State, Ex Parte Everrett (1989) 1 All E.R. 655 at 660.

Also in India, the Supreme Court has held that: ‘possession of a passport is a necessary condition of travel in the international community.’ Vide Subba Rao, C.J. in Satwant Singh Sawhney v. Assistant Passport Officer and Ors. (1967) 3 S.C.R. 525″.

Continuing, His Lordship noted that “the third reason why passport is essential for movement out of Nigeria is that various transactions necessary or incidental to foreign travel from Nigeria cannot be carried out without a valid passport. For example, a Nigerian travelling abroad is required to provide details of his passport number and its country of issue to customs authorities at the port of departure when making currency declaration. See section 4(2) of the Foreign Currency (Domiciliary Accounts) Act Cap. 151, Laws of the Federation 1990.

From the foregoing, it is factually and legally impossible for the respondent to travel out of Nigeria without a passport as witness the various definitions of passport in Nigeria statutes and under the common law, to wit: (a) Section 6 of the Passport (Miscellaneous Provisions) Act, Cap. 343 Laws of the Federation, 1990 defines a ‘passport’ as ‘…a document of protection and authority to travel issued by the competent Nigerian officials to Nigerians wishing to travel outside Nigeria and includes as defined in subsection (3) and (4) of section 1 of this Act, the following (a) a standard Nigerian passport….

The Jowitt’s Dictionary of English Law defines ‘passport’ as: ‘a licence for the passage of anyone from one place to another, or from one country to another.’ While Wharton’s Law Lexicon, Fourteenth Edition, by A.S. Oppe describes ‘passport’ inter alia as ‘a licence for the safe passage of anyone from one place to another, or from one country to another…’ The Black’s Law Dictionary defines it more elastically as: a document identifying a citizen, in effect requesting foreign powers to allow the bearer to enter and pass freely and safely… [and as]… evidence of permission from a sovereign to its citizen to travel to foreign country and to return to land of his allegiance, as well as request to foreign powers that such citizen be allowed to pass freely and safely.’

In the premises, the court below, in reliance on these definitions, was perfectly right in my view, to hold that: ‘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 exercise of the discretion by a foreign State, which at international law it has, in reception of aliens into its territory.

To that extent a passport is normally an essential document for entry into foreign countries.’The above passage encapsulates a dilemma which Mallam El Rufai and his counterpart, Nuhu Ribadu faced when their application for the renewal of their passports was turned down by our Missions abroad. Bearing in mind the explanation of the legal position offered by both the Court of Appeal and the Supreme Court, it is very clear that without the President’s well-timed intervention, the continued stay abroad of both gentlemen would have become tenuous.

For the passport is not only a necessary exit to a foreign country, but invariably a very important instrument enabling an alien to remain in his host country. To this extent, the recent experience offers a slightly different challenge to the Agbakoba situation and we have to express our satisfaction with the fortunate end that has been provided to a situation that would have become oily.

We need to point out that both the Court of Appeal and the Supreme Court placed considerably emphasis on the irrefutable point that the right to freedom of movement and its concomitant, the right of exit from Nigeria is not an absolute one. The Constitution itself, provides the strictures which follow the right to freedom of movement and the first instalment had dealt with circumstances under which a person’s right to freedom of movement may be curtailed.

Further to the consideration of such circumstances, it needs be said that the second instance at which a person may be deprived of his liberty of free movement is for the purpose of removing such a person to a place outside Nigeria for trial for a criminal offence or for purposes of enabling him to undergo imprisonment in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty.

The implications of this provision are fairly obvious and in our view, it certainly is designed to accommodate extradition proceedings under the relevant laws. It has in this regard been held that no Nigerian can be unlawfully removed from Nigeria to a place outside Nigeria. In the last instance, a person may have his freedom of movement curtailed in the interest of defence, public safety, public order, public morality or other valid reasons.

With regard to those public interest questions, Professor Nwabueze makes the point that “The U.S. Supreme Court has established as a principle of the constitution that to be valid, an item of legislation that restricts a constitutionally guaranteed right must have a substantial and rational relation to the appropriate interests and must not be otherwise unreasonable, arbitrary or discriminatory.

Having regard to the fact that the State Security Service, as explained by the Courts, is not imbued with the power to seize a passport, the test laid down above was not satisfie
d in the Agbakoba case because a person who acts without authority is clearly acting arbitrarily and capriciously.

The Court of Appeal and the Supreme Court were very much aware of the importance of the case they were dealing with. The case certainly did not only deal with an infraction of a person’s right but more significantly, dealt with a concomitant right.

That right, though not expressly vested in the appellant by the constitution, was rightly implied by both Courts as flowing from the right to exit from Nigeria so generously granted in both the 1979 and the 1999 of constitutions. The Courts were aware that the frontiers of freedom are expanding elsewhere and therefore right in invoking the interpretative jurisdiction to give fillip to the provisions of the constitution.

In that connection, the courts in the United States had long ago held that “the right to travel is part of the “liberty” of which the citizen cannot be deprived without due process of law under the fifth Amendment of the United States Constitution. Freedom of movement across frontiers in either direction and inside frontiers as well, was a part of our heritage. Travel abroad like travel within the country…may be as close to the heart of the individual as the choice of what he eats, or wears or reads.

Freedom of movement is basic in our scheme of values and freedom to travel is, indeed, an important aspect of the citizen’s liberty”.Consequently, His Lordship Hon. Justice Ayoola, whose judgment received overwhelming approval from the Supreme Court, was on course when he stated that: “While the rest of the civilized world is expanding the boundaries of freedom and reaping the consequences of such expansion in stability and economic and social development, it will be sad were we in this jurisdiction to define the boundaries of freedom so narrowly as to become meaningless”.

His Lordship therefore held that “…any interpretation of section 38(1) of our constitution and Art. 12(2) of the African Charter which would reduce, in effect, the freedom of exit to one that can be removed or obstructed at the discretion of Government or arbitrarily would offend against the spirit of the constitution and the fundamental rights and freedoms guaranteed by it”.

Having regard to this attitude, the Benin Division of the Court of Appeal held in Egamarenze v. Amaghizenwen, that an ex parte order of court restraining a party to a suit from proceeding to the palace of a traditional ruler to present himself for installation of a traditional title is an infringement of his right to freedom of movement. Such an order ought not to be made without hearing both parties.

The Court of Appeal was not only bold in making the right to exit from Nigeria guaranteed under S.38(1) of the constitution intelligible and meaningful but showed acuteness in its awareness of its responsibility to Nigerians. The Supreme Court also said as much and reaffirmed the words of Udo Udoma JSC (as he then was) who noted a few years ago that “…the approach of this Court to the construction of the constitution should be and so it has been, one of liberalism…”. Mr. Justice Udoma also said, “I do not conceive it to be the duty of this Court to construe any of the provisions of the constitution as to defeat the obvious ends the constitution was designed to serve where another construction equally in accord and consistent with the words and senses of such provision will serve to enforce and protect such ends.”

Bearing the foregoing in mind, we may pause to consider the question: What purpose will the right to exit from Nigeria serve if it did not carry with it the right to bear a passport? We venture to suggest, as did the Court of Appeal, that such a right would have been barren. A barren right is unknown to our jurisprudence.

The Court of Appeal rightly held that, “The constitution is an organic document which must be treated as speaking from time to time. It can therefore, only describe the fundamental rights and freedoms it guarantees in broad terms. It is for the courts to fill the fundamental rights provisions with contents such as would fulfil their purposes and infuse them with life.

A narrow and literal construction of the human rights provisions in our constitution can only make the constitution arid in the sphere of human rights. Making our constitution arid in the field of human rights will not only be unfortunate but will to a large extent turn the country into a pariah.

Although human rights have been known to mankind for several centuries, it was crystallized as norms in 1945 following the declaration by the United Nations of the rights of all mankind. Ever since, most countries have worked conscientiously towards actualising the contents of the declaration to the extent that a country may now be judged internationally, by its record on human rights issues.

As a third world country, in a hurry to develop, Nigeria cannot afford to make its constitution arid in the arena of human rights. Consequently, the Court of Appeal and the Supreme Court were perfectly in order when they affirmed that the right to bear a passport is a concomitant to the right of exit guaranteed under the constitution. It is not a privilege to bear a passport nor is it open to any official of Government to seize a passport without recourse to the law. It may further be emphasized that it is also not open to any Government Official to refuse to renew a passport without cogent and verifiable reasons.

In the prevailing atmosphere of human rights under the rule of law, the Courts must be liberal and activist without being venturesome or unduly adventurous. In addition, it may be useful to remember the warning sounded by Justice Learned Hand, so long ago that: “…Liberty lies in the hearts of men and women; when it dies there is no constitution, no law, no court can even do much to help it.

While it lies there it needs no constitution, no law, no court to save it.” Indeed, let liberty lie in the hearts of men as demonstrated by Agbakoba and all those who do not walk away when their liberty is threatened.


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