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).