NOT long after Executive Order 6 was signed and published, Nigerians again received news of a travel ban, also listing the names of several prominent Nigerians whose liberty was being circumscribed. Like its parent “legislation” (as indeed that is what EO 6 is), the travel ban also listed the names of prominent citizens who are already listed as defendants in several criminal cases pending and continuing before various courts across the land.
The executive order banning about 50 Nigerians from travelling abroad flagrantly violates the provisions of Section 41 (1) of the 1999 Constitution which guarantees freedom of movement for every citizen. The freedom of movement is key to the exercise of the right to life, as indeed a person restrained hardly has access to meaningful life of his own. Thus, in Agbakoba’s case, though the Supreme Court agreed with the Federal Government on the ownership of the international passport, it nonetheless makes its arbitrary seizure unconstitutional, simply because the passport is tied to the right of ingress and egress. To, therefore, deprive a citizen the right to move is to deprive him of life in itself. This shouldn’t come through the fiat of the Executive, subject to its usual abuses as we have witnessed in similar circumstances.
The presumption of innocence is the legal principle in criminal cases that states that one is considered, treated and regarded as innocent until otherwise proven guilty. This basically means that until a judicial pronouncement is made by a competent court of law on the guilt or otherwise of a person, he is to be treated the same way that a regular and free person in the society will be treated; any suggestion to the opposite would constitute a breach of the fundamental rights of the individual citizen, as guaranteed under section 36 (5) of the 1999 Constitution. The purport of this section means that where an individual is charged to court with an offence under the Nigerian criminal laws, we cannot presume his guilt until he has been so adjudged by the court, after a full trial.
The logic of this is simply that for one reason or the other, the accused person may turn out to be innocent, whereas if his innocence had not been presumed and preserved at the outset, certain damning decisions may have been taken against him, wrongly. This was indeed the reason behind the change in nomenclature, in the various criminal procedure statutes, of referring to citizens undergoing criminal trials as “defendants” instead of “accused persons”, as in some cases ultimately, they may have been wrongly accused. If it is odious enough to describe a person going through criminal trial as “accused”, will it not be more defamatory and judgmental to even restrain him from travelling or having access to his property, when his guilt has not been properly established?
The other element to Section 36 (5) of the 1999 Constitution and presumption of innocence is that the burden of proving the guilt of the defendant lies and will forever lie on the prosecution, which has the duty and obligation to produce sufficient evidence and material facts, to prove the guilt of the defendant “beyond reasonable doubt” and once the prosecution cannot decisively convince the court of the defendant’s guilt through full and proper trial, then the latter remains legally “not guilty” and free to exercise the freedom of movement. Surely a person cannot on his own raise criminal allegations against his own self and be begging to be dragged to court; so it is the body that prefers the criminal charge that should be held accountable to prove it. To this extent, tampering with the assets or liberty of the defendant whilst the prosecution is yet to establish its case beyond reasonable doubt, is to cleverly shift the evidential burden to the defendant.
The other issue is delay in trials generally, as we now know in Nigeria, it takes average five to 10 years for a criminal matter to be concluded up to the final court. If the sole reason by the executive in digging up the executive order and the subsequent travel ban is to deny the defendant access to his assets whilst undergoing criminal trial, two disturbing issues arise from this. First, it shows clearly that the government itself is aware that prosecution lawyers are not well paid, and so criminal prosecution is not attractive to the very good lawyers.
So, how do you then transfer the burden of inadequate funding, or poor prosecution, to the defendant? The second issue is that of state oppression. It is established in our laws already that one of the factors that the court will consider in granting bail to a defendant in very serious criminal trials is the likelihood of his incarceration affecting his financial capacity to defend his case or prosecute his appeal, if already convicted. To strip the defendant who is yet to go through full trial of access to his finances and his liberty and freedom is for the state to indirectly seek to castrate its opponent in legal battle and thus render the trial an unfair exercise. It is to muzzle the defendant and cripple him and in that wise, force him to surrender to a conviction that he may otherwise not have suffered, had he had access to his funds and liberty. Ultimately therefore, it is prosecution through oppression, just to secure the “guilt” of the defendant, at all cost.
A case in point in this regard is that of Lakanmi & Anor. v. A-G., West & Ors (1971) 1 U.I.L.R 201, wherein the executive tried unsuccessfully, to usurp and trample upon the powers of the court. And even when the Supreme Court eventually struck down the odious executive order, the military still purported to annul judicial authority. But that was a military regime, which we have all now swore never to tolerate in governance again, forever. See also, Emezue & Ors v. Governor, Delta State & Ors (2014) LPELR-CA/B/286/2009.
The other aspect of the travel ban is the usurpation of the power of the judiciary. In virtually all the cases pending in court, the defendants have all been arraigned and granted bail by the court. Under and by virtue of Section 35 of the Constitution, every citizen is entitled to right to personal liberty, but one of the restrictions to the exercise of that right as expressed under section 35 (1)(c) is where it is necessary to bring him before a court to be arraigned. That is where the Executive comes in, namely to bring the defendant to court. However, once the arraignment has taken place, the opportunity for bail is a temporary restoration of the right to personal liberty. According to the learned authors of the authoritative text, “The Criminal Law and Procedure of the Southern States of Nigeria,” Akinola Aguda, page 76 at paragraph 253, “Bail are sureties taken by a person duly authorized, for the appearance of an accused person at a certain day and place, to answer and be justified by law.”
Thus, in Ekwenugo v. F.R.N (2001) 6 NWLR (Pt. 708) 171 at 187 para G, bail means to set at liberty a person arrested or imprisoned, on security being taken for his appearance, on a day and place certain. In the case of Elisha v C.O.P. (1974) 4 ECSLR 362 at page 367, it was held that: “The essence of bail is that the accused person appears to take his trial.” See also, Eyu v State (1988) 2 NWLR (Pt. 78) 602, where it was held that the sole purpose for granting bail is to enable an accused person to come back to face his trial; Dogo v. COP (1980) 1 NCR 14 at 19, where it was held that the sole requirements as to bail are primarily to secure the attendance of the accused person at the trial.
A court granting bail to a defendant is a temporary restoration of his right to personal liberty, upon certain conditions. And this being the case, he remains on bail for the entire duration of his trial, subject to good behaviour. In that regard, nobody or authority should have the power to intermeddle with the right to personal liberty or movement, of a defendant who is already enjoying an order of court admitting him to bail. The bail is an order of the court, which should not be subject to another variation from the executive arm of government. This being the case, a travel ban, upon the life and liberty of a defendant already admitted to bail by the court, is a direct affront by the executive upon judicial power.
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