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Nwabueze: Deportation of citizens in a democracy (3)

By The Rainbow
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• Continued from yesterday
THE deportations, carried out without an authorising law, recall to mind a similar event in 1931 when, on the ground that he was considered by the colonial government to constitute a threat to peace and order, the traditional ruler of Lagos, Eshugbayi Eleko, was deported from Lagos to another part of the country by the colonial Governor of Nigeria. There was no law authorising the deportation, but the Governor claimed that as the executive of the country he had an inherent power, independently of legislative authorisation, to do whatever he considered necessary or expedient to maintain peace and order in the country. The colonial Governor at the time was the sole legislative (as well as the sole executive) authority for the country, and could easily have made a law by proclamation to back the deportation, but he did not, believing that he had an inherent power to act as he did.

The legality or otherwise of the Eleko's deportation was fought all the way to Judicial Committee of the Privy Council in London, which held that the power to execute the government is subject to the fundamental principle, which is a pre-supposition of our constitutional system, that, in the absence of authorisation by law, validly made by the legislature, the executive has no inherent power to interfere with the rights and freedom of a citizen. Eleko's deportation was accordingly declared illegal and void. In a judgment that has become a great constitutional landmark, the Privy Council said that the Executive 'can only act in pursuance of powers given to him by law. In accordance with British jurisprudence, no member of the Executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice' - see Eshugbayi Eleko v. Government of Nigeria [1931] A.C. 662.

That a power not possessed by an autocratic colonial Governor of Nigeria in 1931, and emphatically denied to him by the courts, should, in 2009 - 2013, be assumed and exercised by our State Governors whose powers are severely limited by the Constitution of a constitutional democracy seems to reflect a predilection for arbitrariness and perversion on the part of our democratically elected rulers.

In contrast to the illegality of the deportation of the traditional ruler of Lagos, the deportation of Overami, the then Oba of Benin, from Benin City to another part of the country, was authorised by law, though one made specifically for him alone, the Overami Deportation Proclamation 1911, i.e. an ad hominem law, which is frowned upon by 'British jurisprudence', but held justified by the peculiar difficulty of the problem of maintaining peace and order in a backward colonial country.

Next in the trio that constitutes the essence of the concept of human rights is the equal treatment of citizens by the state and equality of all citizens before the law generally or freedom from unfair discrimination guaranteed in Section 42(1) of the Constitution. This right partakes of the essence of the concept of human rights because it rests upon our common humanity as living human beings, with a body and a soul, the ability to breath, think, speak, move about and to act, and a capacity for emotions and sensations. Every human being feels pain, anguish and happiness, and is endowed with a conscience that enables him to judge between right and wrong, and to form beliefs, just like everyone else.

The differences which undoubtedly exist between individuals because of differences in physical, intellectual and will power - 'rights,' says Lord Bryce, 'which nature has bestowed on some and denied to others' James Bryce, Modern Democracies, vol. 1 (1920), p. 70 - are only differences of degree, which leave unaffected our basic common human nature (Friedrich Hayek seems to disagree with what he calls the widely held uniformity theory of human nature; see his The Constitution of Liberty (1960), p. 86.) Because of our basic common human nature, all citizens have more or less the same need for the security of their persons and property, for justice in their dispute with others, for peace and order, for happiness, the good life and for welfare care generally, for obedience to the laws on the part of all, and the protection of their basic human rights.

The rationale for the state to treat all citizens equally arises partly from our common humanity as human beings with the very same basic needs noted earlier, and partly from the need to avoid the incidence of unfairness in the administration of government, except where such is reasonably justifiable in a democratic society. If the state is the product of a social contract, then, all citizens should count equally in relation to it. In this view, a democratic state is an organization in which the relationship of all members to it is on equal terms, whether it pertains to the conferment of rights, the imposition of obligations, the security of lives and property, the administration of justice, the distribution of social amenities or the exercise of legislative and executive power generally.

Subject to exceptions that are not relevant here, the principle of equality before the law and of equal treatment of citizens by the state as well as the right to freedom from unfair discrimination obliges each State government to treat equally, and not to discriminate between, indigenes and non-indigenes of the State who are Nigerian citizens, to treat beggars, vagrants, mad men and other destitute persons alike with other Nigerian citizens present in the State.

Every government in the Federation, both Federal and State (Section 318(1) of the Constitution defines 'government' as including 'the Government of the Federation or of any State') has a constitutional duty under Section 14(2) to cater for the 'welfare of the people' within the area of its jurisdiction, indigenes and non-indigenes, beggars, vagrants, and mad people and destitute alike, and is not authorized in the use of its funds to discriminate between them as by deporting beggars, vagrants, mad people and destitute to their 'States of origin', because public funds available to it, much of which is derived from allocations from the Federation Account, can only be used to cater for beggars, vagrants, mad people and destitute who are indigenes of the State, but not non-indigenes.

The deportations strike at the very foundation of Nigeria as one 'indivisible' political entity (Section 2(1) of the Constitution), with one aggregated society (though its diverse constituent groups are yet to coalesce into one social body or nation), one common economy, and a common citizenship, one of the incidents of which is the right to 'move freely throughout Nigeria and to reside in any part thereof' (Section 41(1). In more specific terms, they (the deportations) are subversive of the national integration objective declared in the Constitution, and of the duty laid on the state under Section 15(3) to '(a) provide adequate facilities for and encourage free mobility of people, goods and services throughout the Federation; (b) secure full residence rights for every citizen in all parts of the Federation' – emphasis supplied.

I take personal pride in these provisions; for, these are the words I used when I drafted them in 1975/76 as Chairman of the CDC Committee on Fundamental Objectives and Directive Principles of State Policy. (The term 'state' for this purpose is defined in Section 318(1) to include government). 'All organs of government, and all authorities and persons exercising legislative, executive or judicial powers' are enjoined to 'conform to, observe and apply' the declared objectives (Section 13).

The answer to the issue of resettling, rehabilitating and caring for the teeming number of beggars, vagrants, mad people and other destitute persons that roam about the Federal and State capitals and other cities does not lie in deporting them to their 'States of origin'. It is a problem calling for collaboration by the Federal and State Governments, with a view to devising a concerted national policy and implementation action. It demands of the President as Leader of the Nation to assume the initiative.

• Concluded.
• Prof. Nwabueze wrote this article in his capacity as Chairman of The Patriots.