At last count, Coronavirus has affected over a million people and killed several thousands, worldwide. Across the globe, multibillion-dollar businesses and social activities have been brought to a standstill. The disease simply known as Covid-19 has put the world under extremely dangerous times, hence, the desperate measures to curb the pandemic. The emergency situation has provided fertile grounds and seemingly justifiable reasons for the executive to bypass constitutional procedures.
Of particular concerns are the breach of fundamental human rights, extrajudicial acts and non-adherence to constitutional procedures in issuing and implementing orders. The Supremacy of the 1999 Constitution of the Federal Republic of Nigeria (CFRN, 1999) is clearly stated in section 1(1) thus: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Section 1(3) states that if any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency, be void.
Fundamental Human Rights contained in Chapter IV of the CFRN are a group of rights requiring a high degree of protection from government’s encroachment. They are inalienable rights for which the law made specific and special provisions to protect. Sadly, overzealous Nigerian security operatives, have a long history of using excessive and often brutal force in utter disregard to the constitutional provisions. Admittedly, many of them conduct themselves in an exemplary manner, working in difficult and often dangerous conditions. But to many Nigerians, they are more of predators than protectors.
On April 2, Joseph Pessu, 28, was allegedly killed by a soldier in Warri, Delta State over alleged violation of lockdown order. It was alleged that the deceased was flagged down by security operatives for proper identification but he refused to stop. The officers chased and shot him dead. On Sunday, March 29, drivers of newspaper distribution vans were harassed by security agents in some states. The Nigerian Guild of Editors while strongly condemning the act noted that the media is a strategic partner in national affairs, with the Constitutional mandate of providing information to the populace. The body of Editors restated that media personnel are rendering essential services and Journalists should be commended for carrying out their Constitutional mandate of sourcing stories and monitoring compliance with government directives in the midst of the COVID-19 pandemic, instead of being harassed.
Also March 28, 2020 in Katsina State, one person was allegedly killed and 90 arrested by the police. The command’s spokesman, Gambo Isah, said that this particular group organised themselves in such a tumultuous manner, rioting and attacked the police station and over-powered the policemen on duty at Kusada Division. They set ablaze the police station, DPO’s Quarters, seven vehicles and 10 motorcycles over the suspension of Friday congregational prayer by the state government.
Director of Amnesty International Nigeria, Osai Ojigho, said that as the nation observes the 14-day lockdown, the rights of citizens must be respected and protected, including the right to health care, security, and access to sufficient food and water. Also, Human Rights activist and lawyer, Mr. Femi Falana (SAN), pleaded with security agents and the Federal Government to ensure the protection of citizens’ dignity.
At the outset of lockdown orders, the Executive Secretary of the Nigeria Human Rights Commission, Mr. Tony Ojukwu pre-empting the highhandedness of some security operatives said: “Any arrest connected to implementation of the Covid-19 lockdown directives must be treated in accordance with national and international best practices. We appeal to the law enforcement agencies across the country to ensure that they carry out their lawful duties in this regard without undue violation of the rights of Nigerians.”
Ojukwu stated that Article 2 of the Convention against Torture and other Cruel, Inhuman or Degrading or Punishment (CTCIDP) which Nigeria is a signatory to, states that: “Each state party shall take effective, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. No exceptional circumstances whatsoever, whether a state of war, threat of war, international political instability or any other public emergency, may be invoked as a justification for torture”, he said.
Mr. Festus Keyamo, a Human Rights activist and Minister of State for labour and productivity condemned the killing of Joseph Pessu as well as other reports of high-handedness by security personnel in the enforcement of the lockdown. “I unreservedly condemn this barbaric act by men of the armed forces who should exercise restraint when dealing with the civilian populace,” he said.
Keyamo, said he would forward a petition to relevant authorities to thoroughly investigate the incident and bring the offending officer(s) to book. “In the interim, let us not take the laws into our hands, please. I appeal to you my brothers and sisters in Delta State to be law-abiding and obey the orders of restrictions imposed by both the Delta State Government and the Federal Government,” Keyamo said.
Member representing Warri Federal Constituency at the House of Representatives, Chief Thomas Ereyitomi, condemned various human rights violations in form of torture and inhuman treatment. “I unequivocally condemn the actions of the men of the Nigerian Army who carried out this barbaric act, as I believe they should have been more disciplined in enforcing the sit at home order. We are not at war against ourselves but against the dreadful Covid-19 pandemic. These barbaric and unlawful acts do not form part of the rules of engagement for enforcing the State Government’s directive. We cannot afford to add military brutality to the lot we have on our plate presently,” he said.
Constitutional procedures in issuing orders by the President and the governors attracted serious review. A Senior Advocate of Nigeria (SAN), Ebun-Olu Adegboruwa declared President Buhari’s restriction order in Abuja, Lagos and Ogun states, illegal. “We are running a constitutional democracy and it is illegal for the President to take over the affairs of any State of the Federation without the express consent of the people of that state through their elected representatives,” he said.
Adegboruwa said the president lacks the power to solely declare any state of emergency without approval from the National Assembly.
Also, the Nobel laureate, Wole Soyinka, said the country was not in a war emergency. “Does President Buhari have the powers to close down state borders?” he asked. “We want clear answers. We are not in a war emergency. Appropriately focused on measures for the saving lives and committed to making sacrifices for the preservation of our communities, we should nonetheless remain alert to any encroachment on constitutionally demarcated powers. We need to exercise collective vigilance, and not compromise the future by submitting to interventions that are not backed by law and constitution. The universal imperative and urgency of this affliction should not become an opportunistic launch pad for a sneak re-centralisation, no matter how seemingly insignificant its appearance.”
Senior Advocate of Nigeria, Femi Falana explains, “No-movement order in the FCT, Lagos and Ogun states was not enforceable because the order had no legal backing and therefore unconstitutional. He argued that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly.
Another Human Rights lawyer, Inibehe Effiong, said he would approach the court to stop the President from restricting the movements of Nigerians. Effiong, said that the President had no right to do so without recourse to the National Assembly. “After a deep reflection on President Buhari’s decisions to lockdown all movements in Lagos, Ogun and Abuja by Presidential fiat for 14 days, I have resolved to challenge this unconstitutional action in court,” he said. “No responsible, democratic and civilised country will throw its constitution and laws into the dustbin in an effort to tackle a pandemic like Covid-19 the way President Buhari has done. Freedom of movement is a fundamental right guaranteed by Section 41 of the constitution,” he said. While this debate raged on, President Muhammadu Buhari on Monday, March 30, signed the COVID-19 Regulations, 2020, into law in Abuja.
The Attorney-General of the Federation, Abubakar Malami, SAN, in a swift response before the Quarantine Act was signed, said the declaration earlier made by the president was valid, legal and enforceable. He said, “It is important to inform the discerning members of the public that the president did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both Houses of the National Assembly. He said that sections 5, 14, 20 and 45 of the 1999 Constitution of the Federal Republic of Nigeria were misconstrued.
Malami said that even the Section 305(6)(b) of the 1999 Constitution (as amended) permits a proclamation of a State of emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down. He said, “It is clear from the president’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious disease.
He said that Mr. President took the patriotic step in overriding national interest and acted legally under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN.
Malami said that the International Treaties to which Nigeria is signatory, recognize the need to depart or derogate from fundamental rights.
Professor Fabian Ajogwu, SAN, explained the constitutional provisions on restriction and derogation from Fundamental Rights as enshrined in section 45, Constitution of Federal Republic of Nigeria (CFRN), 1999 and the need for balance. “Derogation from human rights refers to a temporary suspension of certain rights recognized in human rights instruments or constitutional bill of rights. It is the right of states to depart from their treaty obligations in certain exceptional circumstances as it enables the government resort to measures of extraordinary but temporary nature during a state of emergency,” he stated.
Professor Ajogwu explained that states are often allowed to suspend or derogate from certain human rights under international conventions.
A lawyer, Kazeem Olusola stated that the derogation provisions in the 1999 Constitution of Nigeria was couched in general and vague terms which created opportunities for unwarranted interference with the fundamental rights by the government. He found after a study that other laws placed the Constitution of the country on a lower pedestal compared to an ordinary legislation.
He noted that in times of emergencies, the extent and scope of rights which could be derogated was very wide. “Derogation from human rights has been done with circumspection in the United States and United Kingdom during the peace time and state of emergencies because of the culture of obedience to laws and the Constitution by the rulers and the ruled. A more acceptable formula for derogation should be one which made derogation law invalid, unless it was reasonably justifiable in a democratic society and not the existing formula of making the rights subordinate to derogation law.”
Former president of Nigerian Bar Association and human rights activist, Dr. Olisa Agbakoba, SAN, said the Quarantine Act would deal with safety, welfare, peace and good order of Nigeria to confront the monstrous Covid-19. He said that invoking the provisions of the Act would legalise the lockdown order for at least 14 days. Agbakoba explained that the Quarantine law empowers the president to issue regulations for the safety and protection of Nigerians when in the opinion of the president or state governor, there is reason to believe that there is a grave medical or other like danger as a result of an infectious or contagious disease which may pose a danger to the common good of Nigerians.