Lagos — Refusal by any government to issue passports and denial of access to consular assistance to citizens constitute acts of civicide

There are two ways to kill in human community: you can kill a human being or you can kill the citizen. The first is biological; the second is sociological but no less real. The former is called homicide; the latter is civicide. Both are wrong, unlawful, and criminal. In addition, civicide is an egregious act of abuse of power.

Most people are quite familiar with homicide, which can occur as either murder or manslaughter. Most have not heard of civicide, although they may recognise it when described. Civicide destroys the existence of a political community or accomplishes the same goal with respect to the existence of a person as a citizen. In other words, civicide changes the citizen into a stateless person. In one stroke, civicide reduces an individual to a non-person.

In her book, The Origins of Totalitarianism, Hannah Arendt describes citizenship as "right to have rights and a right to belong to some kind of organised community."

The United States Supreme Court considered in the case of TROP v DULLES, 356 U.S. 86, at p.101, that civicide or the creation of statelessness is "a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in the development".

The crime of civicide requires the act or complicity of a public official. There are many ways to accomplish it, such as, for instance, through the denial or destruction of identity documents like passports, or through official acts of de-nationalisation of citizens, forced exile, or denial of consular services to citizens already outside the country.

In October 2009, Nigeria's Federal Government was caught in the act of civicide. On September 17 2009, the Permanent Secretary in Nigeria's Ministry of Foreign Affairs, Joe Keshi, an Ambassador, communicated to all of Nigeria's foreign Missions a decision "taken at the highest level" not to grant any Consular assistance to Nuhu Ribadu and Nasir El-Rufai, two former senior public officials who now reside outside Nigeria in not entirely voluntary circumstances. The Nigerian government does not dispute that these two individuals are Nigerian citizens. On the contrary the directive recognises that they are citizens and confesses that it seeks to curtail their freedoms of movement and expression by denying both of them access to a passport and to basic obligations owed to them by the Nigerian State to offer and facilitate their access to consular protection and assistance.

Nearly one month later, on 17 October, public indignation that followed the leaking and subsequent publication of this official directive forced the government to announce a climb down. A directive signed by Minister of State for Foreign Affairs, Bagudu Hirse, claimed that the first directive of September 17 "had no authority of Mr. President", and reversed it.

In the latest installment of this tortured tale, the government let it be known that the original directive was issued at the instruction of the Director of the National Intelligence Agency (NIA), Mr. Emmanuel Imohe, who, we are told, thereafter became the latest victim of natural attrition in the public service. None of this makes sense because it was not meant to make sense to begin with.

This entire episode beggars belief. It is impossible to understand how anyone can credibly claim that all or any of this occurred on the President's blindside. To believe the official line in this sorry saga would require us to accept that the institutional channels of government have collapsed, the Presidency is comatose and the President himself is irredeemably somnolent.

The NIA has no role in authorising passports. That is the role of the Immigration Service in the Internal Affairs Ministry. Created by the National Security Agencies Act of 1986, the NIA is responsible for monitoring external threats to Nigeria's security and exists under the direct control of the President. Moreover, the Permanent Secretary in the Foreign Ministry does not have any business transmitting any directives through the Director-General of the NIA unless such directives have been cleared by the Foreign Minister or come directly from the President.

Henry Wotton may have been half facetious in his famous witticism describing an Ambassador as "a man of virtue sent to lie abroad for his country". More importantly, international law insists that the role of an Ambassador is to protect the citizens of his or her country abroad. Article 5(d) of the Vienna Convention on Consular Relations, 1963, clearly enumerates the functions of consular officials to include "issuing passports and travel documents to nationals of the sending State". This is not an optional extra in job description of consular officials. It is the essential core of what they do. Ambassadors, like Joe Keshi, host consular officials and lead and facilitate their work. When Joe Keshi signed the directive denying two Nigerian citizens access to consular protection, he surrendered any claims to be called an Ambassador.

Citizenship is a human right. The Universal Declaration of Human Rights, now recognised as customary international law, recognises this right in Article 15 and prohibits its arbitrary denial. Article 13 of the same Declaration also guarantees a right to freedom of movement, prohibits forced exile and binds all countries to the promise that "everyone has the right to leave any country, including his own, and to return to his country."

The denial of consular services is the latest ploy in among many others so far deployed by successive Nigerian regimes to repudiate these undertakings and procure civicide. In 1980, the then Federal Government of President Shehu Shagari arranged to expel to Chad without notice or due process, Alhaji Shugaba Abdurahman Darman, then Majority Leader of the opposition-controlled State of Borno, in Nigeria's north-eastern border with Chad. There was no question that Alhaji Shugaba was Nigerian. Nigerian courts rightly took umbrage at this and promptly ruled it unlawful and unconstitutional.

During the prolonged period of military rule that followed the fall of the Shagari regime, the seizure or denial of passports was a routine form of persecution of activists and opposition politicians. Successive military regimes claimed that a passport was a privilege granted at the pleasure and prerogative of the government. Olisa Agbakoba, former President of the Civil Liberties Organization and of the Nigerian Bar Association challenged the seizure of his passport and in a 1994 decision of the Court of Appeal affirmed by the Supreme Court in 1999, Nigerian courts settled quite firmly that the possession of the passport is a right not a privilege to be enjoyed at the whim of public officials.

Many African countries have come to similar conclusions. In NYIRONGO v ATTORNEY GENERAL, (1991-92) ZR 82, Zambia's Supreme Court established the existence of a constitutional right to a passport. Similarly Kenya's High Court in 2007 decided in CHAMANI v PRINCIPAL IMMIGRATION OFFICER, [2007] EKLR that the right to a passport, including "the right to travel is an expressed constitutional right and its existence does not have to depend on a prerogative."

Refusals to issue a passport and denial of access to consular assistance are all acts of civicide. These acts cannot be condemned enough because they destroy the very bases of statehood and the duties of the government towards the citizens from whom it derives its legitimacy. Governments that feel able to deny or exclude their citizens from the civic space lose the right to exist or essentially assert that the citizens are irrelevant to their existence and legitimacy.

The regime may have perfected the art of stealing elections. In the outpouring of indignation that greeted this latest installment of civicide, Nigerian citizens make it clear that any attempt to steal citizenship will be fought bitterly. That is as it should be.

Professor Odinkalu is co-Chairperson, Citizenship Rights in Africa Initiative (CRAI), Uganda