The Recent Executive-Travel Ban On 50 Nigerians By The President Of The Federal Republic Of Nigeria: A Valid Subsidiary Law By: Hameed Ajibola Jimoh Esq.

The Executive-travel ban on some fifty (50) Nigerians alleged of
corruption by the Federal Government of the Federal Republic of
Nigeria and under investigation in one way or the other has sparked
reactions from lawyers and other members of the public. The issue
mostly considered is as to whether such ban is legal or validly
made. This paper aims at contributing to this issue as silence of
the writer of this paper on the discourse will do no favour to the
issue and will aid in no way to the progress of this nation and the
legal profession, hence this topic.

First and foremost, care must be taken in not confusing the
Executive Order No. 6 issued by the
President of the Federal Republic of Nigeria and the Federal High
Court’s decision upholding and or confirming the powers of the
Federal Government to issue such Order with the banning Order.
The Executive Order No. 6 as would be
recalled is on restrictions on property of some persons alleged and
or suspected to have dealings in suspicious assets. This Order
banning these 50 persons restricts the movement of these 50
persons. Therefore, this paper would restrict its discourse only in
respect of the travel ban, more so, that the issue of the
Executive Order No. 6 had been discussed
by the writer of this paper as at the time of its issuance.

Now, it is the respectful view of the writer of this paper that
the power of the Federal Government and in this case the President
banning the said 50 persons without court order is validly
utilized. The reasons and or arguments of the writer of this paper
are sections: 5(1)(b) , 41(2(a) and 318(4) of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
and sections: 10(1)(2), 12, 18, 19 and 37 of the Interpretation
Act, Laws of the Federation of Nigeria, 2004. For
clarity, section 5(1)(b) of the Constitution provides
thus ‘(1)Subject to the provisions of this Constitution, the
executive powers of the Federation- (b) shall extend to the
execution and maintenance of this Constitution, all laws made by
the National Assembly and to all matters with respect to which the
National Assembly has, for the time being, power to make laws’.
Also, section 41(2)(a) of the Constitution provides thus
‘(1) 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. (2) Nothing in
subsection (1) of 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
;’  Also,
section 318(4) of the Constitution provides thus
‘(4) The Interpretation Act shall apply
for the purposes of interpreting the provisions of this
Constitution. Also see: section 45(1) of the
Constitution.

Furthermore, section 10 of the Interpretation Act
provides thus ‘10.
(1) Where an enactment confers a power or imposes
a duty, the power may be exercised and the duty shall be performed
from time to time as occasion requires. (2) An enactment which
confers power to do any act shall be construed as also conferring
all such other powers as are reasonably necessary to enable that
act to be done or are incidental to the doing of it. Also, section
12 of the Interpretation Act provides thus
‘12.   (1) Where an Act confers a power to make a
subsidiary instrument, proclamation or notification, the power
shall include- (a) power to make different provision for
different circumstances; (b)  power, exercisable in the
like manner and subject to the like consent and conditions (if
any), to vary and revoke the instrument, proclamation or
notification; (c) in the case of a subsidiary instrument,
power to prescribe punishments for contravention of provisions of
the instrument, not exceeding as respects a particular
contravention- (i) in the case of rules of court imprisonment for a
term of three months or a fine of fifty naira or both, (ii) in any
other case, imprisonment for a term of six months or a fine of one
hundred naira or both. (2) A contravention of a provision of a
subsidiary instrument may be prosecuted in a summary
manner.

Furthermore, section 18(1) of the Interpretation Act
defines ‘law’ as to mean ‘any law enacted or having effect as if
enacted by the legislature of a State and includes any instrument
having the force of law which is made under a Law’. Also, section
19 of the Interpretation Act provides thus ‘19.  
(1) An expression used in a subsidiary instrument has the same
meaning as in the Act conferring power to make the instrument.
(2) In a subsidiary instrument, the expression “the Act”
instruments. means the Act conferring power to make the
instrument.’. Furthermore, section 37.  
(1)  of the Interpretation Act, provides on the meaning
of ‘subsidiary instrument’ thus   ‘Without prejudice to the
provisions of section 18 of this Act, in this Act the following
expressions have the meanings hereby assigned to them respectively,
that is to say- “enactment” means any provision of an Act or
subsidiary instrument; “subsidiary instrument” means any order,
rules, regulations, rules of court or bye-laws made either before
or after the commencement of this Act in exercise of powers
conferred by an Act.’.

Furthermore, from the above provisions of the above laws, the
writer of this paper submits as follows without prejudice to the
above submissions in this paper:

1. The President of the Federal Republic of Nigeria’s ban of the
   50 persons is reasonably justifiable in a democratic society.
2. The said Order forms part of subsidiary laws as an
   administrative law having effect pursuant to the enabling laws as
   quoted above.
3. Any person who alleges that any of the provisions of the
   Constitution in Chapter IV has been or is likely to be contravened
   in any State in relation to him may apply to a High Court for
   redress, including by the Order of ban so that he could be exempted
   from the order with credible contrary evidence.
4. Whatever the naming or nomenclature of the Order is, in this
   banning instance, it is valid and needs no recourse to a court of
   law before the power can be exercised.

Finally, we as Nigerians and those of us as lawyers and human
rights activists should endeavor to always support government
whenever it acts in compliance and in respect for the rule of law
without any sentiment. And where government errs especially where
it acts in violation of the fundamental rights and the rule of law
in a situation which is not justifiable in a democratic society or
not supported by law, to challenge the said act or law within the
legal mechanism(s).

e-mail: hameed_ajibola@yahoo.com^[1]