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whether Olisa Agbakoba’s case was rightly decided and also whether a passport issued to a citizen by birth can be withdrawn or forfeited.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

“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.