Buhari’s travel ban vs Nigeria’s constitutional order

Eze Onyekpere

Laws, policies, rules and guidelines are made for specific
purposes and to take care of certain challenges facing a society.
They are made to suppress a mischief existing before their
enactment – to suppress the mischief and advance a remedy either to
the society as a whole or to segments of it that have suffered
under the mischief.

Thus, laws are not made for the fun of it, to confer an undue
advantage on a leader, to attend to the personal ego of the leader
or for selfish and discriminatory purposes. This explains the idea
of law as an instrument for the public good, its radiance and
majesty that attracts obedience as the command of the sovereign
backed by sanctions. However, when the law and its implementation
become distorted, society suffers and moves in the wrong
direction.

This is the context of the travel ban imposed by President
Muhammadu Buhari on 50 purported corrupt persons over the weekend.
There are so many questions begging for answers in this resort to
arbitrariness. As well, there are so many reasons why Nigeria has
grown beyond this siege and jackboot mentality, informing the need
for the country to take its place among the comity of civilised
nations. The first is that the right to freedom of movement is a
constitutional right provided in Chapter Four of the constitution
which is the Fundamental Rights chapter.

The provisions of Chapter Four of the constitution cannot be
amended unless the proposal is approved by the votes of not less
than four-fifths majority of all the members of each House of the
National Assembly, and also approved by a resolution of the House
of Assembly of not less than two-thirds of all states. Thus, to
buttress its importance, while other sections require two-thirds
majority of the National Assembly, it requires a higher proportion
to amend. It is not yet in the public domain that Section 41 on the
freedom of movement has been amended.

The relevant portions of Section 41 of the constitution on the
freedom of movement provide that every citizen of Nigeria is
entitled to move freely throughout the country and to reside in any
part thereof, and no citizen of Nigeria shall be expelled from the
country or refused entry thereby or exit therefrom. Nothing in
subsection (1) of this section shall invalidate any law that is
reasonably justifiable in a democratic society -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 them from leaving Nigeria. In Section
45 of the constitution, it is further stated that nothing in
Sections 37, 38, 39, 40 and 41 of this constitution shall
invalidate any law that is reasonably justifiable in a democratic
society in the interest of defence, public safety, public order,
public morality or public health; or for the purpose of protecting
the rights and freedom or other persons.

A clear understanding of these provisions will help in
confirming the constitutionality, legality and propriety of the
presidential travel ban.

Clearly, these claw back and derogation provisions of the
constitution provide that any such derogatory action in sections 41
or 45 must scale two hurdles: the first is that the action must be
done under a law and the second is that such a law must be
reasonably justifiable in a democratic society. It is also not in
the public domain that there is any specific law seeking to
derogate from the foregoing provisions which has been passed by the
National Assembly and given assent to by the President. For the
avoidance of doubt, the President purports to act under the
provisions of an Executive Order. An Executive Order is not a law
and thus fails the first hurdle of a derogation justifiable under a
law. Let us for once leave reality and assume that an Executive
Order is granted the status of a law, it still has to be reasonably
justifiable in a democratic society. For this second leg, the
question raised is; what purpose does it serve? How will
restriction of movement facilitate the recovery of stolen assets or
the quick disposal of the matter in court? Even if the National
Assembly enacts a law today to restrict movement of certain
category of persons, it can still be challenged if the restriction
serves no purpose and cannot be directed and targeted at providing
a relief for a mischief which is facilitated by the exercise of the
freedom of movement.

The second issue is about the disposition of the current regime
to abuse fundamental rights and freedoms and its avowed
disobedience of court orders where the President and the
Attorney-General of the Federation select the court orders they
obey and sit as appellate courts over judgements, including those
of the highest court in the land. Granting any set of individuals
with this mindset the right to abrogate the freedoms of others is
simply a throwback to dictatorship, a descent to tyranny and an
unequivocal licence to fascism. The President appears to be
romantic about his first coming when he used Decree No. 2 which is
the State Security (Detention of Persons) Decree and the infamous
Decree Four on Public Officers (Protection against False
Accusation) Decree to suppress alternative opinion, throw all
persons he did not like their face into jail and rule maximally
until he was overthrown.

Coming in the heat of the 2019 elections when the two dominant
political parties have elected their presidential candidates and
campaigns are about to start, it is imperative to remind President
Buhari and the ruling All Progressives Congress of the provisions
of Section 100 (2) of the Electoral Act 2010 (as amended). It
states that state apparatus including the media shall not be
employed to the advantage or disadvantage of any political party or
candidate at any election. The term “state apparatus” is wide
enough and includes all powers, functions and resources placed at
the disposal of the state for public purposes and this will include
administrative, legislative, coercive, law enforcement, media, etc.
powers. The war against corruption should not be an excuse for
targeting the resources and personnel of the opposition. It should
not provide the cover for the abuse of state administrative
resources because political parties and candidates are supposed to
go into the elections on a level-playing field for the elections to
be described as credible, free and fair.

When the purported Executive Order under which the President
gave himself a right to ride roughshod over the law was unveiled,
Nigerians had a huge debate on its constitutionality and legality
and reasonable men and women thought that the President would have
taken counsel and be properly advised. No, instead, he has plunged
headlong into its implementation without thinking through the
issues of legality and the crisis it may plunge the nation
into.

Nigerians did not place their lives on the line challenging
dictators, from Buhari’s first coming to the Babangida and Abacha
regimes, only to be shortchanged after more than 18 years of civil
rule. Nigeria is resilient and will always triumph over attempts to
foist dictatorship on the land. Trust, this attempt will not be
different and every weapon fashioned against democratic freedoms in
Nigeria shall fail.