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).

By Prof Mike Ozekhome SAN

INTRODUCTION

“Samuel Adams once opined that it does not take a majority to prevail… but rather an irate, tireless minority, keen on setting brushfires of freedom in the minds of men”. Such was the case of Justice Onnoghen as he was proven innocent and acquitted by the Court of Appeal on the 4^th of November, 2024. We commenced this treatise last week in which we x-rayed how Onnoghen fought valiantly in three different appeals – CA/A/375/2019; CA/A/37/SC/2019 and CA/373C/2019, to regain his freedom after which we looked at The Precedent of Jurisdiction and Judicial Independence. Today, we shall continue with same and later delve into and conclude with the Political undertones and the quest for judicial autonomy. Please come with me.

THE PRECEDENT OF JURISDICTION AND JUDICIAL INDEPENDENCE (continues)

Justice Walter Onnoghen’s acquittal by the Court of Appeal is not just a victory for one individual, but a landmark affirmation of a fundamental principle of law, that jurisdiction is the bedrock of any valid legal proceeding. Without proper jurisdiction, any judgement rendered is, as many legal scholars have agreed on, will merely be an exercise in futility. This principle is enshrined in our legal jurisprudence to protect the sanctity of judicial offices and prevent arbitrary persecution. The Court of Appeal’s decision to vacate Justice Walter Onnoghen’s conviction reaffirmed this core legal tenet, sending a clear message that the judiciary is not a toothless bulldog and tool to be wielded by the executive or any other arm of government.

“Injustice anywhere is a threat to justice everywhere” – Martin Luther King Jr. The Nigerian legal framework, supported by landmark cases such as FRN v. NGANJIWA (Supra) and OPENE v. NJC & ORS (Supra), outlines that the NJC must first investigate and make recommendations regarding any allegations against judicial officers before any trial can commence at the CCT. This process serves as a bulwark against arbitrary trials, ensuring that judges are not subjected to undue pressure or political intimidation. I had also then warned about the dangers posed whenever these procedural safeguards are disregarded: “The CCT was unrelenting: it discarded its earlier precedents; ignored court rulings barring it from trying Onnoghen. It was the case of the falcon not hearing the falconer”– Prof. Mike Ozekhome, SAN (https://www.thecable.ng/ozekhome-onnoghen-resigned-because-the-cabal-had-sealed-his-fate/). (6^th April, 2019).

Thus, five years ago (2019), I was nothing short of prophetic. I had foreseen the critical blunders and overreaches that would compromise the integrity of the judiciary in the Onnoghen saga. My warnings were very clear then about the dangerous precedent that was being set in bypassing due process and using the judiciary as a tool for political manoeuvring. As events have now unfolded, my observations then have proven me to be a visionary critic who critiques (not criticises) a justice system that was then on the brink. I had cautioned against the erosion of judicial independence in the face of executive influence. I had given nine reasons why the CCT’s arrest order on and trial of Justice Onnoghen could not stand. See:

(https://dailypost.ng/2019/02/13/ozekhome-gives-nine-reasons-cct-arrest-order-onnoghen-cannot-stand/).

My list was not just a check-list of procedural irregularities; it was also an indictment of a system seemingly hijacked by political buccaneers. Each point landed like a blow, revealing layers of oversight that were by-passed; up to the requirement for humane treatment under the ACJA that was ignored. I meticulously built my case, demonstrating that Onnoghen’s trials were not just about one man, but about the sanctity of the judicial process itself. It was persecution, not prosecution.

My vivid metaphor of the then CJN being “mob-lynched,” painted a grotesque picture of a judiciary cornered by hidoues forces intent on humiliation rather than achieving justice.

Justice Onnoghen’s acquittal by the Court of Appeal thus serves as a reaffirmation of judicial independence, reminding all branches of government that the rule of law cannot be compromised for political expediency. As the Bible says in Psalm 82:3, “Defend the weak and the fatherless; uphold the cause of the poor and the oppressed.” These words resonate deeply in the context of Onnoghen’s trial, encapsulating the judiciary’s duty to protect the innocent from unwarranted persecution and uphold the principles of justice.

POLITICAL UNDERTONES AND THE QUEST FOR JUDICIAL AUTONOMY

Justice Walter Onnoghen’s journey from indictment to acquittal reflects a deeper narrative about the political undertones that permeated his trial. His suspension by then President Muhammadu Buhari which took place only weeks before the 2019 presidential election, had raised significant concerns about the timing and motivations behind the charges. Many saw it as an attempt to influence the judiciary ahead of a critical election, a sentiment I shared and eloquently captured in “Onnoghen… knew that his fate had been pre-determined by the cabal, signed, sealed and delivered”- Prof. Mike Ozekhome, SAN (https://www.thecable.ng/ozekhome-onnoghen-resigned-because-the-cabal-had-sealed-his-fate/). (6^th April, 2019)

The timing of the charges, as well as the swiftness with which Onnoghen was brought to trial, laid validation to public perception that Justice Onnoghen was merely targeted for his position and influence within the judiciary. Like I put it then, “Many facts bear this simple deduction out. The petitioner, an NGO, actually committed the Freudian slip by anchoring its petition on ‘bearing in mind the imminence of the 2019 general elections’” – Prof. Mike Ozekhome, SAN (https://dailytrust.com/ozekhome-charges-judiciary-to-shut-down-courts-over-onnoghen/). (13^th January, 2019).

The Bible, in Proverbs 21:15, declares, “When justice is done, it brings joy to the righteous but terror to evildoers.” The acquittal of Justice Onnoghen, in this light, is therefore not just a personal victory but a broader triumph for all who value justice and integrity.

Like I noted then, “Justice Onnoghen’s removal was also an attempt by the executive arm of government to have a firm control of the nation’s judiciary”- Prof. Mike Ozekhome, SAN (https://dailypost.ng/2019/02/13/ozekhome-gives-nine-reasons-cct-arrest-order-onnoghen-cannot-stand/). (13^th February, 2019).

CONCLUSION

Ultimately, Justice Walter Onnoghen’s acquittal is a landmark victory for judicial independence and a testament to the enduring principles of justice and due process. His journey from indictment to acquittal serves as a potent reminder that the rule of law must remain inviolable, even in the face of political pressures.

Onnoghen’s case will remain a watershed moment in Nigeria’s legal history, a vivid reminder that the judiciary’s role is to safeguard the rule of law, protect citizens’ rights and ensure that democracy even when faced with formidable forces of political influence, triumphs. It should be able to skillfully navigate through the ever present interplay of centripetal and centrifugal forces.

As Nigeria continues to evolve as a work-in-progress, Justice Onnoghen’s exoneration stands as a powerful reminder to us all that, in the words of Proverbs 21:3, “To do what is right and just is more acceptable to the Lord than sacrifice.” Congratulations, Milord. Enjoy your hard won-back integrity, honour and dignity. (The end).

THOUGHT FOR THE WEEK

“The overreach of the judiciary can be attributed to, one, the inability of the executive to deliver; and two, the tendency to issue judicial pronouncements for national good. The second element is dangerous because that’s the function of the government”.- Kapil Sibal.

By Prof Mike Ozekhome SAN

INTRODUCTION

The first part of this treatise commenced appropriately enough with a diagnosis of the problem, with an analysis of how we ‘lost it’ after which we considered the depth of the challenge, the critical situation which presently confronts us. Today, we shall x-ray the prognosis – poor leadership, lack of an autochtonous Constitution and the ambiguous status of local governments. We shall then consider whether peace separation is a solution or not. Please read on.

PROGNOSIS

So, what is the way forward? How do we achieve the Nigeria of our dreams? How can we make democracy work for us? To be sure, there is no fail-safe or fool-proof prescription which, when applied, will suddenly transform Nigeria into an Eldorado or utopia overnight. The cliché might be well-worn, but it is nevertheless, apposite: democracy is a journey, not a destination. Therefore, the challenge – our challenge, all of us collectively – is to commit to imbibing, applying or adopting time-tested ethical values or ethos which have worked for more successful democracies across the world, including some (like the Asian Tigers, Singapore, Hongkong, South Korea, and Taiwan) which – like Nigeria – were once (not too long ago) classed as developing or third-world countries. Indeed, at independence, some of them were arguably less developed than Nigeria. So, what did they get right and we got right? That is the question.

THE BANE IS LEADERSHIP

The answer to this all-important question lies in the socio-political environment in which those seeming miracles took place. While, virtually all those countries had their fair share of military dictatorships and non-democratic (or unelected) central governments, the unmistakable common thread or denominator that they all share is that their leaders were able to galvanize their people to focus on and pursue a common goal: national unity as a bedrock for economic prosperity and sustainable growth. In other words, LEADERSHIP is key. It might also be axiomatic, but a truly effective and pan-Nigerian, selfless, patriotic and committed leadership has been the single most problematic factor behind our nation’s woes. Without such leadership, any talk of transformation is simply a mirage.

Indeed, democracy itself might even be imperiled. This self-evident fact requires little elaboration, as it takes a patriot – a genuine, committed patriot – who prioritizes that nation’s well-being above petty, partisan, political or ethnic/religious interests to deliver on Nigeria’s promise and potential. In other words, a statesman who can see the big picture and envision a country that thrives on the basis of the supremacy of the rule of law.

THE LACK OF AUTOCHTHONOUS CONSTITUTION

This takes us to the next most important ingredient in the tool-kit: legal and/or constitutional reform, and its sub-text: electoral reform. I have spoken extensively about my belief in the shortcomings of the present Constitution. Those views have not changed. Let me reiterate my position that nothing short of a total overhaul of the military-bequeathed contraption called “the 1999 Constitution” (a mere Schedule attached to Decree 24 of 1999) will have the credibility and legitimacy needed to secure the legitimacy, credibility and acceptance (if not obedience) of the overwhelming majority of Nigeria.

We must fashion a brand new Constitution in the style of the independence (1960) Constitution which was negotiated by the then three regions, North, East and West through their elected leaders; as did America between May and September, 1787 in Philadelphia, Pennsylvania.

Unfortunately, military adventurists did not allow that experiment to stand the test of time before truncating it along with the 1st Republic. A corollary to this constitutional overhaul is the (arguably even more important) issue of Electoral Reform. The tradition or practice of a 4-year review of our Electoral Act has not stemmed the incidence of pre-election and post-electoral disputation in courts and tribunals – and even violence. The challenge in his regard (like the other aspects of our multidimensional ills) has been – more than anything else – attitudinal: our political class and their foot soldiers should adopt and internalize the culture of good sportsmanship.

Electoral contests should cease being so bitterly disputed and, should, instead be replaced with the spirit of the winners being magnanimous in victory while the losers are gracious in defeat. Elections are not do-or-die affairs. No. Even in a party democracy where the winner takes it all, our electoral outcomes ought to reflect the spirit of our old-new national anthem so that its revival will be meaningful.

This prescription (coupled with the often-suggested establishment of an Electoral Offences Court as well as the reduction in electoral cases which go up to the Supreme Court) ought to ensure a perceptible (if not quite dramatic) drop in election-related cases – at least those which directly challenge the outcome or results of elections.

AMBIGUOUS STATUS OF LGAs

Still on legal/constitutional reform, a related issue is the ‘ambiguous’ status of the lowest tier of government: local governments. While the Constitution (under Section 7) has always recognized their autonomy, the experience (to everyone’s knowledge) is that they have always been hostage to State Governors who stage-manage their elections and – when the tenures of their ‘elected’ officials expire – replace them with hand-picked cronies who will do their bidding and condone the non-remittance of their statutory allocations directly to them.
To his credit, the Attorney-General of the Federation, Lateef Fagbemi, SAN, has interviewed boldly through the pending case at the Supreme Court, which for that very reason, I will say no more.

PEACEFUL SEPARATION?

On a larger level, yet another elephant in the room, is the possibility of peaceful separation from those who desire it. I prefer a big, prosperous, united and stable Nigeria. However, where peaceful co-existence is not possible, what do we do? Kill ourselves? No. this is where I borrow the analysis of a commentator (Aminu Sa’ad Bali – amazingtimesng.com, June 19, 2021), who opined that separation is not necessarily about war. He cited the following as examples of Peaceful Separations:

 In 1776, the USA split from the UK.
 In 1830, Belgium separated from the Netherlands.
 In 1965, Singapore split off from Malaysia.
 In 2002, East Timor got split off from Indonesia.
 In 1921, Ireland split off from the United Kingdom, and (possibly in the future) there will be secession of Scotland.
 In 1944, Iceland split from Denmark with remarkable ease.
 In 1905, Norway split from Denmark.
 In 1905, Norway and Sweden also peacefully split ways.
 In 1947, the British India Dominion was partitioned into India and Pakistan.
 In 1971, Bangladesh seceded from Pakistan.
 In 1992-93, the two parts of Czechoslovakia agreed to each go their own way, leading to two separate countries – the Czech Republic and Slovakia after what’s been named the “Velvet Divorce”.
 About the same time, another kind of separation occurred, in Yugoslavia. Unfortunately, this was accompanied by bloodshed.
 In 1965, Singapore split from Malaysia for reasons, which included religion (Malaysia is majority Muslim, Singapore isn’t), ethnic/racial (Singapore has a very large majority Chinese population) and concerns over the Malaysian Bumiputra policy, which was (and is) basically a form of “Affirmative Action” for Muslim Malaysians – who make up the majority population in Peninsular Malaysia.
 Ethiopia and Eritrea, Sudan and South Sudan are now separate countries.
 The old USSR (Soriet) is now broken down into several independent countries.

To the foregoing, I can agree only to the extent that separation is an avenue for healthy competition for development, as in the case of Singapore and Malaysia, India and Pakistan, Norway/Denmark/Switzerland, etc; but not for the sake of it.

In the case of Nigeria, I foresee a healthy rivalry among the original component parts, the North, West and South, each making useful progress while competing with the others. Accordingly, it is not about war; after all, there is nothing wrong for one to decide he is no longer comfortable with the union and wanting to opt out. We call it self determination – a concept recognized by the UNO Charter.

PERCEPTION OF PUBLIC OFFICE HOLDERS

Related to the question of attitude is public perception at the seeming insensitivity of our public officers. In this regard, a lot of disquiet (if not anger) was generated by the news of legislators earmarking the humongous sums of ₦160m to purchase SUVs for each member of the National Assembly. This development was particularly irksome against the backdrop of the lingering (often contentious) issue of a national minimum wage for public workers with government conceding a mere non-living wage of N60,000. This, coupled with other news of more humongous amounts of money – a minimum of ₦500m reportedly earmarked (in some cases, actually collected/received – as so-called constituency allowances by the legislators, contributes in no small measure in eroding public confidence in democracy – or at least our peculiar brand, if not practice, of it. What about two new presidential jets said to have cost a bleeding country like Nigeria a whopping billions of naira. Nigerians believe that the president and legislators should embrace the somber mood of the country and avoid lawlessness and ostentation.

Once again, it is a question of trust or perception that our leaders are either insensitive or simply out of touch with our common reality: the daily grind which is the reality of the common man, given the sheer (and rising) cost of living, rampant inflation and the ever falling nature of the Naira. So this is another issue that needs to be tackled if democracy is to remain attractive to the average Nigerian as a viable governance model: the insensitivity of our elected representatives to the public perception of their lifestyles and incomes/emoluments/perks of office as being out of sync with the hardship which is their lot, and which, has indeed become a new normal.

Our elected leaders must look inward, and do serious introspection and soul-searching by making conscious, deliberate choices which project them as considerate, frugal and sensitive to the economic realities of the time. They must address the popular belief that part of the pressure on the Naira is caused by their demand for foreign currencies (especially the dollar) which is publicly–perceived to be the currency of choice of the political elite, particularly public office holders. (To be continued).

THOUGHT FOR THE WEEK

“In politics, nothing happens by accident. If it happens, you can bet it was planned that way”. – Franklin D. Roosevelt.