Can FG issue travel ban without court order?

The chairman of the Special Presidential Investigation Panel for the Recovery of Public Property, Chief Okoi Obono-Obla, on Monday December 17, 2018 announced that he has submitted 29 names of persons to the Nigeria Immigration Service (NIS) because they are banned from traveling abroad over pending corruption cases.

Obono-Obla who disclosed this at the media briefing, added that the 29 people are banned from traveling until their cases are determined, saying his action was premised on the Executive Order 6 signed by president Muhammadu Buhari.

Although Obla didn’t mention names of the 29 people said to be banned from traveling abroad, instead he gave names of those he said his committee is investigating for corruption and that they include: Deputy Senate President Ike Ekweremadu, Senator Hope Uzodimma and the former Senate President, David Mark.

According to Obono-Obla, others are former House of Representatives Speaker Dimeji Bankole, former Deputy Speaker Usman Nafada, former aviation minister Stella Odua, Folake Oke, Senator Peter Nwaoboshi, Abubakar Yar’Adua, Olisah Metuh, former Sokoto State governor Attahiru Bafarawa, and the Tumsa brothers.

Obla led journalist by the nose when he didn’t disclose the names of the 29 people said to be travel banned but instead said that the people are being investigated for corruption.

All he wanted was for the reporters to report that the few names he mentioned are among the 29 people under the travel ban list, just to hide behind his finger in the event of actions brought against such reporting.

It is just infantile display of brigandage. Such crass pronouncements smack of official exuberance and equally exhibiting the emptiness in our criminal justice system, and more importantly among the officials in the anti-corruption war prosecution in the country.

Such pronouncement makes caricature of the anti-graft war drive of the current administration on the ground that Obla is neither a judicial officer nor a court of competent jurisdiction mandated by Section 6 of the 1999 constitution (as amended).

It is perhaps necessary to state that only a court in the strict Constitutional sense as provided in section 6 of the Constitution can convict and sentence an offender for a criminal offence.

Travel ban placed on any person is punishment that runs contrary to the letters of Section 35(1) of the 1999 Constitution as amended.

Section 35(1) provides; “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law.

Section 35(1) (3) even explained that even if it is for the purpose of bringing him before a court, it must be in execution of the order of a court.

Section 34(a) of the 1999 Constitution provides; “Every individual is entitled to respect for the dignity of human person, and accordingly – no person shall be subjected to torture or to inhuman or degrading treatment.”

It is sheer media trial to release names of some people being investigated, just as it is poignant and degrading treatment to such persons, all for the purpose to show that such official is doing a work.

The presumption of innocence is the legal principle in criminal cases that one is considered innocent until proven guilty.

This basically means that until a judicial pronouncement on the guilt or otherwise of the accused person is made, he/she is to be treated the same as a regular person; any suggestion to the opposite would be a breach of the Fundamental Human Rights of the individual.

The 1999 Constitution in Section 36(5) guarantees this right. Specifically, it states, “every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty…”

The 29 persons banned from traveling have not been tried and convicted. Even where prima facie evidence is reasonably leading to a person being declared guilty, such person still remain innocent until the court of competent jurisdiction pronounces him guilty and consequently sentences him or award him punishment.

Of course, no matter what indictment or formal charges are brought against the defendant, and no matter what the personal feelings of those involved may be, if government prosecution cannot decisively demonstrate the defendant’s guilt in trial, then that person is legally “not guilty” and free to go.

There is plethora of court pronouncements against Federal Government’s action of placing travel ban on people without valid court order or pronouncement.

His Lordship AGUBE JCA in ALI V. STATE (2012) 10 NWLR PT. 1309 P. 624 PARA D-E held that; “It is trite law that an accused is presumed innocent until his guilt is established by credible evidence.

The presumption of innocence is a constitutional right of every person as provided in section 36(5) of the 1999 Constitution (as amended) which states that: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty”.

In Nigeria, personal liberty of everyone is guaranteed and can only be deprived in exceptional circumstances.

These exceptional circumstances are in Sections 35(1) (a-f) of the 1999 Constitution (as amended).

Though this personal liberty guaranteed under the constitution can be deprived in exceptional circumstances, such accused person is not supposed to be detained for an undeterminable or endless period. The Nigerian constitution makes provision for bail.

It is a truism already that evidence of suspicion no matter how strong and/or evidence of the opportunity to commit the offence charged does not and cannot replace legal proof of the commission of the criminal allegation against the person charged with the offence (see Abieke and Anor. v. State (1975) N.S.C.C. 404 at 408; (1975) LPELR-8042 (SC).

This position is reinforced in the case of Samuel Bozin v. The State (1985) 7 SC 450 where the Supreme Court had declared: “suspicion, however grave does not amount to legal proof.”

In another Supreme Court case, Osarodion Okoro v. The State (1988) SC (Part II) 83, it was held that “the protection of the accused person who is presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion, however strong.”

This is why Obaseki, JSC, stated in the Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E, “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.”

We must realize that the rule of law is for all and for no one in particular.

The process of administration of criminal justice under a civilized constitutional democracy operating the adversarial criminal justice system requires as a matter of necessity that everything is and must be done to ensure the safety of citizens and that no one is punished or made to suffer unjustly or prematurely.

Further, a major part of the cardinal duties of the state or prosecutor in criminal proceedings as reinforced in the case of Enahoro v.

The State (1965) 1 All NLR 125 is to be just, impartial and fair and to not persecute or victimize accused persons to achieve illegal ends. The prosecutor has an added duty to refrain from trying to obtain conviction at all cost.

Hence in R. Sugarman (1936) 25 Cr. App. R. 109, the Criminal Appeal Court (UK) had warned that “the business of the state counsel is fairly and impartially to exhibit all the facts to the jury.

The crown has no interest in procuring a conviction but that the right person be convicted…” Put differently, the function of the state or the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; it is rather to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial (Hon JUSTICE WILLIAMS ORVILLE DOUGLAS).

Justice, though due to the accuser and the society, is due to the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true (HON JUSTICE BENJAMIN CARDOZO in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934).

The import of all these is that punishment for breach of any law must be done in line with procedures and processes set down by law. Therein lies the indispensability of the supremacy and applicability of rule of law.

Anything short of this takes us back to the age of “might is right,” which would usher in an end to constitutionalism and decency, civility and order.

It might as well be an end to the existence of an organized state. What is sauce for the goose is sauce also for the gander.

If a leader can do to any citizen whatever he or she (the leader) likes, likewise, citizens reserve the right to do to the leader whatever they (the citizens) wish, under the same guise.

This is what had informed the following warning by sir Thomas Moore: “If you cut all the laws down, and you are just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the devil benefit of law, for my own safety’s sake!”

Accordingly, the greatest and safest way to civility and progress for any society is for the society to embrace rule of law as its inviolable creed, to which both the leaders and the led are subject.

Any action of the people, the leaders and anyone, however well intentioned, if it runs contrary to the dictates of rule of law is an anathema and constitutes a grave threat to the foundation of society, being an invitation to chaos.

A society that ignores rule of law welcomes rule by arbitrariness and the subjective predilections of people in authority.

Rule of law is the basis for any functional democracy. And without rule of law in a democracy, chaos becomes the norm. As Mahmoud Abbas once declared, we cannot build the foundations of a state without rule of law.

Perhaps, the wise words of one-time American army general, statesman and 34th President of the USA, Dwight D. Eisenhower (1890-1969) would help to drive this point securely home: “The clearest way to show what the rule of law means to us in our everyday life is to recall what could happen when there is no rule of law.”

Finally on this, the rule of law establishes principles that constrain the power of governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules.

Eneyiramoh is Abuja based legal analyst.