Buhari’s Travel Ban vs Nigeria’s Constitutional Order

Buhari’s travel ban vs Nigeria’s constitutional order
Published October 15, 2018
PUNCH

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.