….. Olisa Agbakoba v. The Director, State Security Services & Anor., revisited
By Awa Kalu
Very recently, acres of newsprint have been dominated by controversy arising from a memo allegedly despatched to some of our missions abroad directing Embassy and Consular Staff to deny consular services to some of our citizens particularly Mallam El Rufai, erstwhile Minister of the Federal Capital Territory and Nuhu Ribadu, former Chairman of the Economic and Financial Crimes Commission (EFCC).
The particular service allegedly withdrawn from these eminent gentlemen concerns the renewal of their travel documents notably, their International Passports.
It has to be said that this is not the first time that the mass media has been awashed with tales concerning the seizure or confiscation of the International Passport of a Nigerian including tales of the deportation of a Nigerian politician in the 1980s from Nigeria to Chad.
Only recently, we were regaled with tales of what the press labelled internal deportation. However, more relevant to the field at issue is the question whether in this country bearing a passport is a right or a privilege? This issue will be examined in the context of the seizure of Mr. Olisa Agbakobaâ€™s (OON, SAN) passport in the heydays of Military rule.
The matter was litigated up to the Supreme Court and the facts disclose that: In the High Court (Lagos) the appellant vide the provisions of the fundamental Rights Enforcement Procedure Rules, 1979, applied for leave of the Court to enforce his fundamental rights.
Pursuant to the leave of the Court, the applicant by Motion on Notice applied for redress for infringements of his fundamental rights, particularly, his right to freedom of movement. In the affidavit accompanying his motion it was alleged that the applicant was invited by the Netherlands Organisation for International Development and Co-operation (NOVIB) to attend and participate in its conference on â€œHuman Rights, Democratisation and Developmentâ€ which was scheduled to take place at the Hague between 22nd and 25th April, 1992.
The applicant decided to attend the said conference and on the 21st of April, proceeded to the Murtala Mohammed International Airport, Ikeja to board an aircraft for the purpose of travelling to the Hague.
At the airport, officers of the Department of State Security Services (SSS) aborted his journey by seizing his Passport No. A654141 without assigning any reasons. Rather, the applicant was directed to report to the headquarters of the State Security Services at No. 15A Awolowo Road, Ikoyi on April 22, 1992 at 10.00a.m in the morning. The applicant thereafter paid several visits to the SSS headquarters as directed but his visits did not yield any dividends.
He thereafter initiated other administrative procedure to enable him retrieve his passport but his efforts proved fruitless. It was in this connection that the applicant filed his application for redress of his infringed fundamental rights at the High Court, Lagos.
The respondents, namely, the Director of the State Security Services and the Attorney-General of the Federation did not file any Counter-Affidavit and were therefore, by operation of law, deemed to have admitted all the material facts deposed to in the applicantâ€™s affidavit. Prima facie therefore, the applicant was entitled to the reliefs sought in his application, namely, a declaration and an injunction.
In a ruling dated the 31st of July, 1992, the learned trial Judge, rightly in our view, affirmed that by failing to file a counter-affidavit, the Respondents had accepted as correct, all the material facts deposed to in the Appellantâ€™s affidavit.
The trial Judge equally affirmed that the constitution does guarantee a right to freedom of movement which includes the right of exit from and entry into Nigeria. The learned Judge was equally of the well considered view that in modern times, international travel would imply the necessity to possess a valid travelling certificate or passport.
It is worthy of note that the Judge did not grant the appellant any of the reliefs he sought at the High Court on the essential ground that the possession of a passport is merely a privilege and not a constitutional right. The High Courtâ€™s other reason for refusing the application, namely, that a declaration ordinarily, cannot be granted in default of pleadings, appears to be outside the scope of the field at issue. What we propose to review is the Courtâ€™s conclusion that the possession of a Passport is a privilege and not a right which is the kernel of the Judgment of the Court of Appeal (Lagos Division).
As has been mentioned, the constitution of the Federal Republic of Nigeria, 1979 under which the matter was litigated as well as the present constitution of 1999 guarantee to every Nigerian, the right to freedom of movement. For the avoidance of doubt, the constitution provides as follows: Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit there from.
The constitution validates any law that is reasonably justifiable in a democratic society; (a) imposing restriction on the residence or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria. (b) providing for the removal of any person from Nigeria to any other country: (i) to be tried outside Nigeria for any criminal offence, or (ii) to undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty; provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.
There is no doubt that the Constitution does not guarantee the right to freedom of movement in absolute terms. There is also no doubt that no person is allowed to trample upon the rights guaranteed under the constitution without justification. It is therefore necessary to emphasize that in our view, what the constitution seems to permit, is that a personâ€™s freedom of movement may be curtailed in the following circumstances, that is to say: (a) to prevent a person who has committed or is reasonably suspected to have committed a criminal offence from leaving Nigeria. (b) to remove a person to a place outside Nigeria for purpose of 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. (c) pursuant to a law that is in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.
It is necessary to observe at this stage that except in order to prevent a person who has committed or is reasonably suspected to have committed a criminal offence from leaving Nigeria, it does not appear necessary in the other circumstances listed above, to seize or impound a personâ€™s passport. At any rate, there is no arbitrary power enuring in the State Security Service to seize a passport. Our efforts to trace any such power have been unsuccessful.
The State Security Service is created by the National Security Agencies Decree, 1986. By virtue of S.2(3) thereof, the service is charged with responsibility for the prevention and detection within Nigeria of any crime against the Internal Security of Nigeria; the protection and preservation of all non-military classified matters concerning the Internal Security of Nigeria and such other responsibilities affecting Internal Security within Nigeria as the Head of State may deem necessary.
It may therefore be argued, that the enabling statute which establishes the State Security Services does not grant it power to seize passports. While it may be conceded that in the course of the duty to prevent and detect crime against the Internal Security of Nigeria, it may be necessary to prevent a person from leaving Nigeria, we must note that the State Security Service can only at best, enlist the authority of the Minister charged with matters relating to passports.
This is because the power to cancel or withdraw any passport issued to any person is vested in the Minister charged with responsibility for matters relating to passports. For the time being, that Minister is the Minister of the Interior. The circumstances under which the Minister may cancel or withdraw any passport are those permitted under section 5(1) of the Passports (Miscellaneous Provisions) Decree.
The Minister may do so if – (a) the passport is obtained by fraud; (b) the passport has expired; (c) a person unlawfully holds more than one passport at the same time; (d) it is in the public interest so to do.
Having regard to the circumstances under which a passport may be cancelled or withdrawn, there appears to be no rational justification for the High Court in Agbakobaâ€™s case to hold that: â€œ…there is no doubt whatsoever that a Nigerian Passport is the property of the Nigerian Government and it is only a privilege and not a right to be in possession of a passport.â€
The learned Judge came to this awful conclusion after taking judicial notice of the standard endorsement on Nigerian passports indicating that such a passport â€˜remains the property of the Government of the Federal Republic of Nigeria and may be withdrawn at any timeâ€™. Although there is no statutory authority for this endorsement, we must agree with the decision of Uwaifo JCA (as he then was) that â€œ…a passport cannot lawfully be impounded simply on the basis that it is the property of the Federal Government.
Not even an atmosphere of a Police State can justify that. If it becomes necessary to impound a passport in circumstances falling under section 40(1), due process of law demands that not only that a relevant law must exist, any one of the situations specified under section 41(1) must be present, and in addition, the holder of the passport must be informed promptly what he has done to warrant the impoundment of his passport in order to curtail his freedom of movementâ€.
E.O. Ayoola JCA (as he then was) in his lead judgment had underscored this point when he noted that â€œit will be an affront to all known human rights norms were the right to freedom of exit specifically guaranteed by our constitution to be drained of all effect by arrogating to the Government a discretionary and almost arbitrary power to withhold, withdraw, or revoke a passport.â€ We have not chanced upon a modern authority where a passport was withdrawn arbitrarily except the decision of the Kenya High Court in Re Application by Mwau. Simpson, C.J., while construing S. 81(1) of the Constitution of Kenya, 1969 which provides that â€œno citizen of Kenya shall b deprived of his freedom of movement, that is to say, the right to move freely through Kenya, the right to reside in any part of Kenya, the right to enter Kenya, the right to leave Kenya and immunity from expulsion from Kenya, held that it was entirely the prerogative of the President to withdraw or issue passports upon the direction of the appropriate Minister.
This discretion was not subject to judicial review. The Court said: â€œ…we think that in the absence of any statutory provision regulating the issue of passports, the issue and withdrawal of passports is the prerogative of the President…Section 81 recognises that a citizen has a right to leave Kenya. The right is not absolute.
Parliament contemplated circumstances under which a citizen could be deprived of that right although appropriate legislation has not yet been enacted. The section does not it may be observed impose any obligation on any authority to take active steps to secure this right to leave Kenya by issuing a document provided for in International law requesting other sovereign states to give certain facilities to a Kenyan Citizen…â€.
On the other hand, the High Court of Solomon Islands (another member country of the Commonwealth) approached an incursion into a citizenâ€™s right to freedom of movement in a more liberal way even though the constitution of the country did not expressly guarantee the freedom of movement to include the right to leave the country.
Section 14(1) of the Constitution of Solomon Islands 1978 provides as follows: â€œ14(1) No person shall be deprived of his freedom of movement, and for the purposes of this section the said freedom means the right to move freely throughout Solomon Islands, the right to reside in any part of Solomon Islands, the right to enter Solomon Islands and immunity from expulsion from Solomon Island.â€ This section came up for interpretation in the case of Jamakana v. Attorney-General and Another.
The applicant sought a declaration (among other reliefs that his prevention by an immigration officer from boarding an aircraft for the purpose of leaving Solomon Islands constituted a breach of his freedom of movement. Construing the above section, Daly C.J., held as follows: â€œ…in my judgment the â€˜right to move freely throughout Solomon Islandsâ€™ must include a right to board a vessel or aircraft which will cross part of Solomon Islands to reach the frontiers or cross them…â€
Upon this premise, the High Court adjudged the respondents liable to compensation for the contravention of the applicantâ€™s freedom of movement. Even if for the purposes of argument it is conceded that a passport is the property of the government, can it be seized at will? An analogy, a useful one indeed, may be drawn in this regard from the power of a Governor under the Land Use Act to revoke a certificate of occupancy. Under the Act, all land comprised in the State is vested in the Governor of such State where the land is situate and any person may apply to the Governor for a Certificate of Occupancy in and over the land in which such a person has interest.
The Governor cannot revoke a certificate of occupancy without assigning reasons, as his right to revoke is tied to over-riding public interest which is clearly defined under the appropriate section of the Act. Thus although the Governor is the â€˜ownerâ€™ of all land comprised in his State, he cannot at his whim, deprive any person of land duly granted under a Certificate of Occupancy.
Bearing the philosophy of this analogy in mind, Olayinka Ayoola JCA (as he then was) in the course of his judgment forthrightly declared that: â€œThere is no conflict in the statement 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 that the holder cannot deal with it as he pleases. He cannot transfer, sell or otherwise dispose of it.â€ His Lordship emphasized that â€œif the right to hold a passport and not to have one held by the citizen arbitrarily impounded is a concomitant of the freedom of exit guaranteed by the constitution, that right cannot be whittled down or abrogated by such statement as is contained in the passport that the passport â€˜may be withdrawn at any time.â€™
Where a statement in any document issued by the Government is in conflict with a clear and unambiguous provision of the constitution or any statute, such statement is of no consequence and cannot define, delimit or abrogate the right of the citizenâ€.