Passport Seizure, Retention, Revocation and Deprivation: Legal and Human Rights Implications (Part 2)

Introduction 

We commenced this treatise last week addressing the legal and human rights implications of passport seizure, 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 recognises 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 recognised by the Constitution, as aforesaid (that is, by naturalisation 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, SSS & Anor v AGBAKOBA (1999) LPELR-954(SC). 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 Organisation 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 Sections 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 judgement, the Appellants appealed to the Supreme Court. The important issue which the court had 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 judgement 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 pleases. 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 judgement 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 judgement 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(1) of the Constitution and Section 5(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, accordingly, guaranteed by the Constitution, but the right to hold a passport was subject to the provisions of the Act. 

The leading and majority judgement of the Apex 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 judgements 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)