By Prof Mike Ozekhome SAN

INTRODUCTION

In our last episode, we looked at the requirements of citizenship under the law, taking our cue from 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. Today, we shall consider whether Olisa Agbakoba’s case was rightly decided and also whether a passport issued to a citizen by birth can be withdrawn or forfeited. After which we shall take a cursory look at some laws- international and Nigerian laws guiding passport seizure, retention, revocation and deprivation, consider the human and legal implications as well as provide some remedies. Read on please.

Was Agbakoba’s Case Correctly Decided?

This is the million naira question. It can be seen that the apex court in the case affirmed the prerogative of the Minister of Internal Affairs under Section 5 of the Passport (Miscellaneous Provisions) Act to suspend, withhold or revoke the passport of a Nigeria on the ground, inter alia, of national interest. I believe that, to the extent that the Supreme Court did not consider whether that provision was a valid derogation from the fundamental right to freedom of movement within parameters of Sections 41(2) and 45 of the Constitution, that decision was given somewhat per incuriam.

I submit that, that right (and its concomitant right to a passport) cannot be derogated from merely on the vague, blanket ground of ‘public interest’ (as provided under Section 5 of the Act) but rather on any one or more (if not all) the grounds specifically set out in the Constitution i.e., in the interest of defence, public or defence, public safety, public order, public morality, public health or for the purpose of protecting of rights and freedom of other persons. While it can be argued that those grounds are all in the public interest. I believe their specification under the Constitution is to prevent abuse and to check arbitrariness.

I believe that this view would be consistent with the contra-profremtum rule of statutory interpretation which states that any statute which seeks to deprive a person of his proprietary rights must be construed strictly against the law-maker and sympathetically in favour of the citizen whose right is at stake. Such laws should be interpreted narrowly and if their provisions are not strictly observed in any given case, they will be struck down. See FCDA V SULEI (1994)3 NWLR pt. 332 pg 257 per Ogundare, JSC, PROVOST, LACOED V EDUN (2004) LPELR- 2929 (SC) Per Tobi, JSC and THE ADMINISTRATORS & EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA V EKE-SPIFF (2009) LPELR-3152 (SC) PER Aderemi, JSC, at pg 41E-42B.

Can A Passport Issued To A Citizen By Birth Be Withdrawn Or Forfeited?

I believe this question is the most fundamental of all and is at the heart of the debate which is subject of this paper. This is because, if a person’s citizenship by birth can neither be forfeited nor taken away from him or by executive fiat, he or she ought not to be denied or deprived of the symbol of that status by the same or any other means except, of course, by personal choice (i.e., renunciation). In other words, I believe that the question is not so much about the invalidity of the provisions of Section 5(1) of the Passport (Miscellaneous Provisions) Act vis-a vis those of Sections 41 and 45 of the Constitution, (although this is crucial) but rather, of the unconstitutionality of any law which purports to empower any person whatsoever (including the president) to withhold, revoke or withdraw the passport of a citizen of Nigeria by birth on ANY GROUND other than those spelt out in section 45 of the Constitution.

The reason is simple: as stated earlier, if the President cannot deprive a citizen by Birth of his or her citizenship (as he can do in respect of citizens by naturalisation or registration under SECTION 30(1) AND (2) OF THE CONSTITUTION), he should not possess the power to withdraw or withhold the pre-eminent symbol of that status: his passport. If the President, as the CEO of the country (under Section 130 (3) of the Constitution) cannot do that, I believe that neither should any of his subordinates or even appointees (such as the Minister of Internal Affairs) in the manner in which Section 5(1) of the Passport (Miscellaneous Provisions) Act stipulates.
Summary

Nigerian Law

1. Constitutional Rights: The Nigerian Constitution guarantees the right to freedom of movement (Section 41) and the right to a passport (Section 42).
2. Passport Act: The Passport Act (1961) regulates passport issuance, revocation, and seizure.
3. Immigration Act: The Immigration Act (2015) empowers the Nigeria Immigration Service to seize and revoke passports.

International Law

1. Universal Declaration of Human Rights (UDHR): Article 13(2) guarantees the right to leave and return to one’s country.
2. International Covenant on Civil and Political Rights (ICCPR): Article 12(2) protects the right to freedom of movement.
3. African Charter on Human and Peoples’ Rights: Article 12(1) guarantees the right to freedom of movement.

Human Rights Implications

1. Right to Freedom of Movement: Passport seizures, retention, or revocation can restrict movement, violating this right.
2. Right to Nationality: Deprivation of a passport can lead to statelessness, violating the right to nationality.
3. Right to Family Life: Passport restrictions can separate families, violating the right to family life.
4. Right to Education and Work: Passport restrictions can limit access to education and employment opportunities.

Legal Implications

1. Administrative Justice: Passport seizures or revocation must follow due process, as outlined in the Nigerian Constitution.
2. Judicial Review: Affected individuals can seek judicial review of passport-related decisions.
3. International Obligations: Nigeria must uphold international human rights obligations, including those related to passport rights.

Remedies

1. Judicial Review: Challenge passport seizures or revocation in court.
2. Administrative Appeals: Appeal to relevant authorities, such as the Nigeria Immigration Service.
3. Human Rights Commission: File complaints with the National Human Rights Commission.
4. International Mechanisms: Petition international human rights bodies, such as the African Commission on Human and Peoples’ Rights.

Conclusion

A passport is a symbol of one’s citizenship. It is the pre-eminent marker which identifies its holder as a citizen of a particular country. While you can be a citizen without necessarily holding a passport, you cannot possess a passport unless you are citizen of a country: they are two sides of the same coin.

Our Constitution has covered the field of citizenship, vide Chapter III, Sections 25 to 32 thereof which recognises three categories of citizens by birth, by naturalisation and by registration. While the last two can be taken away by the President under the Constitution, the former cannot.

The Constitution empowers the President (vide Section 32) to make regulations prescribing matters required or necessary for effectuating or carrying out the provisions of that chapter, subject only to one condition: that any such regulation should be laid before the National Assembly. Crucially, there is no role for a Minister or any other person under the Constitution in this regard in terms of conferring or depriving a person of citizenship of Nigeria.
In other words, the Constitution has covered the field. Accordingly, to the extent that the National Assembly purports to empower the Minister of Internal Affairs to withdraw or cancel any passport issued to any person on the ground, inter alia, of public interest (vide Section 5(1) of the Passports (Miscellaneous Provisions) Act), that provision is not only otiose, it is ultra vires, invalid, null and void because it is inconsistent with the aforesaid constitutional provisions which specifically empower only the President to deprive a person of his citizenship. The mere fact that those clauses refer to ‘citizenship’ and not ‘passport’ is irrelevant; as previously submitted, the latter is but evidence of the former: you can’t have the latter without the former.

The power conferred on the Minister of Internal Affairs to revoke or withdraw passports under Section 5(1) of the Passports (Miscellaneous Provisions) Act, should, ideally, be conferred on the President. This would be consistent with the spirit and letters of Chapter III of the Constitution which clearly manifests an intention by the framers of the Constitution to confer on the President absolute control of the citizenship ecosystem – including, of course, passports. As the apex court famously held in OSADEBAY V. ATTN-GEN OF BENDEL STATE (1991) 1 NWLR Pt. 169 pg. 525, S.C, per Nnaemeka-Agu, JSC, “it cannot be presumed that the framers of the Constitution intended to confer a right with one hand and to take it away with the other”

The Constitution should be construed as a whole and its makers cannot possibly intend to set the President up against his own appointee. The Minister is not a bean-stalk planted by Jack: he cannot outgrow himself. Under the Constitution, only the President can deprive a person of his or her citizenship and then only in two instances: citizenship by naturalisation and citizenship by registration. Not by birth. If otherwise, it would mean that the President’s appointee or agent- the Minister is more powerful than the President, which would not be a travesty, it would be a constitutional aberration.

Once the Constitution has covered a legislative field, no other person, body or authority is permitted to legislate in respect of same subject matter: ATTORNEY GENERAL OF ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2002)6 NWLR PT.763 Pg 264 at 39q per Kutigi and Uwais, JSC and CJN. (The end).

Thought for the week

“As a global community, we face a choice. Do we want migration to be a source of prosperity and international solidarity, or a byword for inhumanity and social friction” (Antonio Guterres).

Prof Mike Ozekhome SAN

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 22nd and 25th April, 1992. On 21st 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.
2. 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).

By Prof Mike Ozekhome SAN

INTRODUCTION

No document is more critical to free movement of people across international borders than that rectangular booklet commonly called a ‘passport’. Without it, a person is without an identity – at least outside his or her country of origin. Neither a driver’s licence, voter’s card or other means suffices in such circumstances and he or she is effectively stateless and a citizen of the world.

Unfortunately, such people have few, if any, legal and diplomatic protection and are often in a legal ‘no-man’s’ land, where they belong to no one and are on their own. A case in point is the curious story of a man who lived in Charles de Gaulle airport in Paris, France, for 18 years (between 1988 and 2006). Mehran Karimi Nasseri had arrived at the airport without proper documentation and couldn’t get on a plane without a passport. If he left the airport to go into France, he would be arrested for not having ID papers.

While Mr Nasseri’s case is probably the most dramatic (it even attracted interest from famous Hollywood director, Steven Spielberg, who reportedly paid him $250,000 for the rights to his story) illustration of the value of a passport, it is by no means an isolated one. Countless people have found (and continue to find) themselves in the same legal limbo and black hole- sometimes, through no fault of theirs, but rather, as a result of State action in the form of passport seizures, retention, revocation and deprivation. So what exactly is a ‘passport’, and what are the implications of its denial, seizure or revocation under the law? Let’s find out . . .

MEANING OF ‘PASSPORT’

According to Black’s Law Dictionary Eighth edition, page 1156, ‘a passport is a formal document certifying a person’s identity and citizenship so that the person may travel to and from a foreign country’.

It is universally accepted evidence of a person’s identity and nationality (Burdick H. Brittin, International Law for Sea Going Officers, 4th edition, 1981, pg. 183). It does not (however) give its bearer the right to travel to another country, but it does request that other governments permit him to travel in their territories or within their jurisdictions (ibid). It also entitles him to the protection and assistance of his own diplomatic and consular officers abroad (ibid).

A similar definition is contained in Webster’s New Explorer Encyclopedic Dictionary, page 1335, thus:
“A formal document issued by an authorised official of a country to one of its citizens that is usually necessary for exits from and re-entry into the country, that allows the citizen to travel in a foreign country in accordance with visa requirements, and that requests protection for the citizen while abroad.”

Case law is replete with similar definitions (See, for example, R. v. Secretary of State ex parte Everett (1989) 1All E.R. 655; and Sawhney v. Asst Passport Officer (1967) 335 C.R. 252). However, the leading Nigerian judicial authority on the subject is the decision in the famous case of AGBAKOBA v THE DIRECTOR, SSS (1994) 6 NWLR Pt. 351 pg. 475 @ 495., where the Court of Appeal, Ayoola, JCA as he then was) opined that: “in so far as a passport is a certificate or 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 a 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.”

The issue went on appeal to the Supreme Court, where the apex Court affirmed the definition of the “passport” in Section 6 of the Passport (Miscellaneous Provisions) Act thus: “Passport means 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 subsections (3) and (4) or section 1 of this Act, the following-
(a) A standard Nigerian passport;
(b) A Nigerian diplomatic or official passport;
(c) A Nigerian pilgrim’s passport or Seaman’s card of identification.
The court then, opined that:
“Being in possession of and producing such passport granted as stated above allows the citizen to leave the courts and travel to another country without hindrances. It affords him assistance and protection when travelling in such other country”.
In the same case (ibid), the apex court affirmed the following definition of ‘passport’ in Section 52(1) of the Immigration Act (Cap. I1, LFN, 2004), viz:
“Passport means with reference to the person producing it, a travel document furnished with a photograph of such person and issued to him by or on behalf of the county which he is a subject of a citizen and for a period which according to the laws of that country, has not expired, and includes any other similar document approved by the Minister establishing the nationality and identity of the person to whom it refers to the satisfaction of a immigration officer”.

PASSPORTS UNDER THE CONSTITUTION

The foregoing demonstrates the centrality of passports as instruments of international travel; without one, movement across national borders – legitimate movement – is virtually impossible (or, at least, it is problematic). This invariably leads to a consideration of the constitutional right of freedom of movement. This is one of the fundamental rights guaranteed under chapter IV of the 1999 Constitution of the Federal Republic of Nigeria. Specifically, Section 41(1) thereof provides that “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 therefrom.”

It can be seen that this provision does not, in terms, prescribe the possession of a passport as a condition either for entry into Nigeria or exit therefrom. Nor does the immediate subsection (2) thereto, which, for ease of reference, is as follows:-
“(2)Nothing in subsection (1) this section shall invalidate any law that is reasonably justifiable in a democratic society- (a) imposing restrictions 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; or
(b) providing for the removal of any person from Nigeria to any other country to-
(i) 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 which other Country in relation to such matter”

Beyond the foregoing provisions, Section 45(1) of the Constitution adds a further layer of derogation to the right of freedom of movement by providing that nothing in that clause (i.e. Section 41, inter alia) shall invalidate any law that is reasonably justifiable in democratic society-
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.

That being the case, the question is whether the provisions of the Passports (Miscellaneous Provisions) Act and the Immigration Act which prescribe the possession of a passport by a citizen of Nigeria as a condition to exercising his fundamental right to ingress and egress out of Nigeria are reasonably justifiable with the parameters or circumstances spelt out in the aforesaid provisions of Section 41(2) and 45(1) of the Constitution. Is the requirement of a passport under the law a valid derogation from the fundamental right of a citizen of Nigeria to move freely across our international borders? Are the provisions of such laws “reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality, public health or for the purpose of protecting the right and freedom of other persons” within the contemplation of Section(45) of the Constitution?

Before going further, it is pertinent to point out that the qualification prescribed by subsection (2) of section 41 are more or less replicated (or at least contemplated and can, therefore, be accommodated) within the stand-alone restrictions on the right, i.e. of freedom of movement, (amongst others) under section 45(1) of the Constitution. Accordingly, we can safely concentrate on interrogating the legitimacy or validity of the requirements of passport vis-a-vis the right to freedom of movement under the Constitution.

As previously stated, the question is whether the possession of an international passport by a Nigerian citizen as a condition for entering or leaving Nigeria reasonably justifiable under any law? Is it a valid derogation from our right of free entry into Nigeria and free exit therefrom? Are there any concerns of, or risks to, public safety, public health, public morality, public order or defence involved, were such restrictions not in place? Can such concerns not be addressed by the scheme of national identification which is currently in place?
Are such concerns not more legitimate and valid in respect of non-Nigerians? Why should a Nigerian need a separate document (apart from his national ID card) in order to enter Nigeria? Why should the State be concerned about the requirements for entering other Sovereign States to the extent of appropriating to itself the right to seize, withhold or revoke a passport? Is it the passport that confers nationality or otherwise? Is a person a citizen of Nigeria only if he or she possesses a Nigerian passport? This conveniently leads us to the next question, which is…

Thought on the week

“No level of border security, no wall, doubling the size of the border patrol, all these things will not stop the illegal migration from countries as long as a 7-year-old is desperate enough to flee on her own and travel the entire length of Mexico because of the poverty and the violence in her country”. (Jeh Johnson).