Buhari’s Travel Ban On Targeted Nigerians: An Extreme Panicky Measure Of Desperation (3)

CURTAIN CALL

Ron DeSantis, rightly stated that when you’re allowing the
Executive Branch to deprive somebody of a constitutional liberty
without any process, that is something that affects all Americans
because that’s a precedent that can be used.

On this note we shall, today, continue with our discourse on the
above vexed issue.

EO6 IS AN AD HOMINEN LAW (continues)

“…It was beset by a grave situation and it took grave measures
to deal with it, thinking, one must presume, that it had power to
do so and was acting rightly.

But that consideration is irrelevant, and gives no validity to
acts which infringe the Constitution. What is done once, if it be
allowed, may be done again and in a lesser crises and less serious
circumstances. And thus, judicial power may be eroded. Such an
erosion is contrary to the clear intention of the Constitution. In
their Lordships’ view the Acts were ultra vires and invalid.”

In Kable vs. DPP (NSW) (1996) 138 ALR 577, the Australian High
court upheld Kable’s challenge to the legality of a 6 months
detention order made against him on the ground that the Act was
invalid.

The Community Protection Act, 1994, passed by Parliament of New
South Wales was a remarkable example of ad homine legislation. EO6
is even in a worse state, it not even being an Act of Parliament
(NASS), but a mere Executive or presidential directive. It is null
and void on account of its adhomine nature.

Quite aside the fact that Justice Ijeoma’s judgment never gave
President Buhari the power to arbitrarily ban citizens from
travelling, Section 5 of the 1999 Constitution from which the
President allegedly derived his powers to make EO6 only gives the
President powers for the execution and maintenance of all laws
already duly passed by the NASS, and not to turn the Executive into
a second law – making arm of government.

EO6 CANNOT DEROGATE FROM THE CONSTITUTION

Executive Order No. 6 cannot even enjoy the derogation
qualification granted under section 45 of the Constitution, which
permits restriction and derogation from the observance of section
41 under a law “reasonably justifiable in a democratic society in
the interest of defence, public safety, public order, public
morality, or public health, for the purpose of protecting the
rights and freedom of other persons”. This is because E06 is not a
law, but a mere Executive Order. Nothing more.

EO6 VIOLATES THE DOCTRINE OF SEPARATION OF POWERS AND
RULE OF LAW

Executive Order No. 6 also violates the hallowed doctrines of
separation of powers ably propounded in 1748 (sections 4, 5, 6, of
the 1999 Constitution), by Baron de Montesquie, the rule of law as
espoused by Prof A.V. Dicey and all tenets of constitutional
democracy. It is high-handed, obnoxious, pristine, capricious,
whimsical and arbitrary. It violently erodes cherished fundamental
rights that are inalienable and God-given.

It seeks to strike terror and fear in the minds of Nigerians,
especially the opposition and critical voices. EO6 usurps the
functions of a court of law and the NASS that has already
promulgated the EFCC, ICPC, Money Laundering Acts and Recovery of
Public Property (Special provisions) Act, all of which allow for
interim forfeiture and attachment of citizens’ money and
properties, but with an order of a court of law.

That was what Justice Ijeoma Ojukwu said in her judgment. She
made it clear that although Executive Order No. 6 was not itself
invalid, but that the Attorney General of the Federation must first
obtain an order of court under section 174 of the Constitution, and
that the enforcement of the order must never derogate from the rule
of law, or from the doctrine of separation of powers, or from the
fundamental rights of Nigerians.

EXECUTIVE ORDERS ARE NOT IN THEMSELVES
ILLEGAL

No one had ever doubted the legality of Executive Orders in
presidential systems, which are regularly issued by American
presidents, wherefrom we borrowed our presidentialism. We had
demonstrated this earlier with the 1803 Marbury case. But such an
order must conform with laid down procedure, due process, respect
for citizens’ rights and rule of law. After all, as far back as
1999, president Obasanjo had issued Executive Orders to abolish the
Petroleum Trust Fund (PTF) and also to proclaim May 29 as Democracy
Day (I have never agreed with this. June 12 is Nigeria’s real
Democracy Day). Also, in 1980, President Shehu Usman Aliyu Shagari
had issued an Executive Order to modify the Public Order Act.

However, in the OBJ instance, it was to bring the issues at
stake to be in conformity with the Constitution as provided for in
section 315 of the 1999 Constitution.

MERE SUSPICION IS NO PROOF OF AN OFFENCE
EO6

which seeks to attach a citizen’s property on mere suspicion of
being proceeds of crime is also unconstitutional for being in
conflict with section 36 of the Constitution, which provides that a
person is not guilty of an offence until proven to be so guilty
before a competent court of law. In the case of Ajaegbo vs. State
(2018) LPELR 44531 (SC) 36, the apex court held that “the law is
that suspicion, no matter how grave cannot take the place of legal
proof”. That evidence of suspicion, no matter how grave cannot
replace legal proof of the commission of the crime alleged against
a person charged with the offence is trite in law. See also Abieke
v. State (1975) NSCC 404.

Thus, the vain attempt by E06 to assault and circumscribe
citizens fundamental rights (even if it were an Act of the NASS,
which it is not), is unconstitutional. For the avoidance of doubt,
“the time honoured principle of law is that wherever and whenever
the Constitution speaks, any provision of an Act/ statute on the
same subject matter, must remain silent” (Saraki vs. FRN (2016)
LPELR 400 13 (SC).

GOVERNMENT’S TRAVEL BAN IS HIGHLY
UNCONSTITUTIONAL

Quite apart from the fact that EO6 never made provisions banning
any Nigerian from travelling (it would have been unconstitutional
to do so), the ban on about 50 Nigerians (names not disclosed till
date), from travelling, is a grave constitutional aberration. After
the right to life (section 33), right to dignity of the human
person (section 34), right to personal liberty (section 35), right
to fair hearing (section 36), the right to freedom of movement
(section 41), is so crucial that without it, a citizen is virtually
grounded, chained and manacled, both physically and mentally.

SOME JUDICIAL PRECEDENTS

The Federal Government’s travel ban is therefore akin to seizing
a citizen’s passport, an act which the Supreme Court deprecated in
very stringent terms in Director, SSS v. Olisa Agbakoba (1999) 3
NWLR (Pt. 595) 340.

In that case, Agbakoba had been invited to a conference in
Netherlands, which was to hold between 22nd and 25th April, 1992.
On getting to the airport in Lagos, the SSS (they prefer the new
sobriquet, DSS) stopped him and impounded his passport without
giving any reasons howsoever. It was during military tyranny (the
reason Agbakoba, my humble self and four other Human Rights
Activists founded the first human rights league in Nigeria, the
Civil Liberties Organisation (CLO). (To be continued).

THOUGHT FOR THE WEEK

“There is one way, only one way to solve it, and that is through
legislation. It cannot be through an unconstitutional executive
order that violates the Constitution.

That is, it doesn’t matter here what you think about
immigration: here you cannot violate the nation’s Constitution,
period.” (Marco Rubio).

LAST LINE

Nigerians, please continue to engage me in the national
conversation, whilst awaiting explosive topics of Sunday Sermon on
the Mount of the Nigerian Project by Chief Mike Ozekhome, SAN, OFR,
FCIArb, Ph.D, LL.D.

• Follow me on twitter @ MikeozekhomeSAN

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