ADEDOYIN JOHNSON
Human right lawyer, Mike Ozekhome has called the recent announcement of the government’s ban on certain Nigerians as unconstitutional and an extreme panicky measure of desperation.
In a statement posted on his Facebook page on Sunday, Osekhome said the measure by Federal Government is unconstitutional. “It is a descent into totalitarianism, absolutism and fascism. It is highly condemnable for being absolutely unconstitutional, illegal, wrongful, immoral, vindictive, dictatorial, panicky and presumptuous of the victims’ guilt, without any trial or conviction.”
He said: “the order shows a government wallowing in narcistic self-righteousness, brazen glorification and a false sense of redemptive messianism. It will surely boomerang on the government in this electioneering campaign period and strip the government bare of any pretensions towards democratic credentials. Presumably anchored on Executive Order 6, it made earlier in July,2018, the recent clamp down on opposition elements and persons suspected to be against the desperate attempt by this government to cling to power at all cost is nothing but a draconian Decree, a piece of legislative enactment without a NASS and an unconstitutional judicial pronouncement outside the orbit of a court of competent jurisdiction. It is a vile coup against Nigerians, democracy and constitutionalism. The government by the order turned itself into a court of law to trail citizens, deprive of their freedom of movement and monitor and seize their accounts by fiat, without a valid court lose.”
He further said the right to freedom of movement is guaranteed by section 41 of the 1999 Constitution, and it cannot be subject to derogation by any Executive Order outside the pronouncement of a court of law.
The statement reads further: “It dresses the Executive branch of government with the despotic garbs of arbitrariness, whimsicality and capricsciousness, to determine which citizens should be prevented from traveling, l and have their accounts and properties attached. The Supreme Court of Nigeria, in Director of SSS v Olisa Agbakoba (1999) 3 NWLR (or 595) 340,quoted with approval, the Indian case of Meneka Ghandi v Union of India (1978) AIR 597,(1978) SCC (1) 248,where the Indian Supreme Court held ,on Ghandi’s passport being seized, and he filing a writ of petition under Articles 21 and 32 of the Indian Constitution, that:
“the Indian Constitution safeguards the right to go abroad against executive interference which is not supported by law; law here means enacted law or state law ..thus, no person can be deprived of his right to go abroad unless there is law made by the state prescribing the procedure for so depriving him and the deprivation is effected strictly in accordance with such procedure”. Neither the Executive Order no 6, nor the new travel ban and accounts monitoring and property attachment constitute any such law, by any stretch of the imagination, or constitutional imprimatur. In Agbakoba’s case, the apex court made it clear that ownership of a travelling passport was part and parcel of and concomitant to the freedom of movement.
Thus, 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, or for the purpose of protecting the rights and freedom of other persons” This is because it is not a law and , but a mere executive order. Nothing more. Those affected should head for the courts immediately and get it struck down.
Executive Order no 6 violates the doctrine 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, barbaric, pristine, capricious, whimsical and arbitrary. It violently erodes hallowed 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. It usurps the functions of a court of law and the NASS that has already promulgated the EFCC, ICPC and Money Laundering Acts, 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 judgement. She made it clear that although Executive Order no 6 was not itself wrong, 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 derogate from the doctrine of separation of power, or the fundamental rights of Nigerians. No one has ever doubted the legality of Executive Orders, which are regularly issued by American presidents, where from we borrowed our presidentialism, but same must conform with laid down procedure, due process citizens’ rights, and rule of law. That is the way to go.”
