A CLOSE LOOK INTO THE AGITATIONS OF KENYAN LAWYERS AND A CALL FOR NIGERIAN LAWYERS TO FOLLOW SUIT
In all democratic and constitutional government around the world, one major inevitable feature,is the supremacy of the Rule of Law. A. V. Dicey’s exposition is more elaborate on this issue. In the words of Aristotle, ” At his best,man is the noblest of all animals; separated from law and justice he is the worst”. Accordingly, the tenor of our constitutional democracy controls all affairs of governance and individual rights, privileges, immunities and limitations as well.
The Constitution accordingly guarantee’s the right to employment, trade and profession of different kinds, providing and allowing attendant laws, institutions and pressure groups/organizations to pilot their policies. Germane to our discourse are laws regarding to essential service workers in Nigeria.
This paper seeks to interrogate the laws vis-a-vis essential services, the sectors privileged therein, as well as a critical delve into the present curfews or restrictions relating to the coronavirus pandemic and the urgent need for lawyers to be exempted from any restrictions whatsoever,as ministers in the temple of Justice. This paper finds solace in the recent agitations of the kenyan lawyers,common sense anchored on the role of the judiciary and instrumentality of law even in the darkest situation. Although in times of war, the laws are silent (inter arma enim silent leges).However,i dare to say that in times of war, the laws are not silent. Hence,in this time of pandemic the laws cannot be silent.
The author however writes as an appeal to the Presidency ( majorly to include lawyers as service providers exempted from curfews/restrictions through executive order pursuant to the Quarantine Act), the National Assembly, Supreme court and the Nigerian Bar Association (NBA) to look into the matter as it is desirable and sacrosanct for the continuous protection of the civil Rights and liberties of Nigerian Citizens.
ESSENTIAL SERVICE DEFINED:
The word essential pertains to what is crucial, critical, vital, important, expedient etc. Therefore an essential service is a service that is sacrosanct and maintains steady services to the society without which life becomes miserable. It is in the light of the above that I strongly contend that lawyers ought to be among this service providers.
Although,this varies according to country.It is however pertinent to distinguish between what an essential service is during a pandemic and what is usually described as critical national infrastructure. There is, however, a great deal of overlap. A legal definition of essential services is contained in the Network and Information Security Directive (NIS Directive), Annex II, which lists essential services as energy (electricity, oil and gas), transport (air, rail, water and road), banking, financial market infrastructure, healthcare (hospitals and clinics), water and digital infrastructure. On the other hand, essential services may refer to a class of occupations that have been legislated by a government to have special restrictions with regard to labour actions such as, not being allowed to legally be on strike.
In Nigeria, the Trade Disputes (essential services) Act empowers the president to proscribe any Association or Union causing unrest to the society. The interpretation section of this Act defines the essential service in section 7(a,b and c). The definition is akin with the one proffered by NIS Directive above, but it however excluded lawyers. It should be parenthetically noted that,the Act was created for the president to control and proscribe any Association that embarks on strike.
CORONAVIRUS PANDEMIC AND ATTENDANT CURFEW’S BY GOVERNMENT SAVE FOR ESSENTIAL WORKERS : A COMPARATIVE THINKING ON THE NEED TO EXEMPT NIGERIAN LAWYERS ( KENYA AND USA AS A CASE STUDY)
This discourse shall take into consideration a comparative analysis of lawyers clamour to be essential workers. The paper takes solace from the role of a lawyer in all ramifications of life,even during a pandemic. We shall also examine the present trends in Nigeria compared to other nations to expose the necessity of law.
The Fundamental Human Rights guaranteed in chapter 4 of the 1999 Constitution remains sacrosanct subject to laid down exceptions. Section 36(6)(c) provides for the right to legal representation by any citizen. If it is borne in mind that the right to legal representation is one of the provisions under the twin pillar of Justice, then and only would we appreciate that the duty of a lawyer knows no season nor bounds.Thus, the exclusion of lawyers and legal services,violates the right to fair hearing.
In Nigeria:due to the spread of Coronavirus, President Muhammadu Buhari (GCFR) in line with his powers declared a 14-day curfew twice in Lagos, Abuja and Ogun being the epicenter of the pandemic in Nigeria. Subsequently following the outbreak in Kano state and the civil unrest nationwide the Presidency has relaxed the lockdown in these states, subject to restrictions of inter-state movements save for essential service workers to take effect on the 4th of May,2020. Our major concern are the trends,which took place the whole of April during these lockdown. The social media was filled with videos and pictures of assualt and inhumane treatment melted on citizens as well as lawyers who were mere pedestrians. The question that provokes my thought is whether upon an emergency of this nature, the role of the judiciary is simply rendered in Abeyance or whether a pandemic can sap citizens the benefits of legal representation? What is the fate of suspects in police cells and prisons awaiting trial?… The answer to these questions are in the negative.
I refer you to “ the Basic Principles on the Role of Lawyers:Adopted by the 8th United Nations Congress on the Prevention of Crime and the
Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990″
Presently in Kenya,the Law Society of Kenya (LSK) and the Indepedent Policing Oversight Authority (IPOA) received a ruling from Justice Weldon Korir of the High Court stating that “the government ought to include Lawyers and IPOA amongst the list of people exempted from restrictions of the curfew imposed over the coronavirus outbreak”. My Lordship further stated, “An order of mandamus is issued compelling the 2nd Respondent to amend, within five days from the date of this judgement, the Schedule to the Public Order (State Curfew) Order, 2020 so as to include the 3rd Interested Party (IPOA) and the members of the Petitioner [LSK] in the list of “services, personnel or workers” exempted from the provisions of the Public Order (State Curfew) Order, 2020,”
LSK briefed the court on the danger of violation of the rights of arrested persons if they fail to access their lawyers during curfew hours,They further argued that their non-listing went against the right to fair hearing and fair trial as spelled in Article 50 of the Constitution. However, the matter is on appeal by the Inspector General of Police Hillary Mutyambai, Interior CS Fred Matiang’i, Health CS Mutahi Kagwe, and the Attorney General Kihara Kariuki who want the decision reversed.
Again, the president of the American Bar Association (ABA) called for the Federal Government to deem legal services “essential,” so that lawyers are exempted from local shelter-in-place rules that prohibit legal employees from leaving their homes for work,in order to prevent the spread of the coronavirus.
In a letter to the Cybersecurity and Infrastructure Security Agency. Director Christopher Krebs, ABA and President Judy P. Martinez argued that people need access to essential legal services during a national emergency such as the current one, which was sparked by the coronavirus pandemic.
The American people and U.S. business community must have access to the legal services they need — when they need them most, in this time of crisis. Martinez asked series of question on the hope of criminal suspects pending trials, legal advice and aides to citizens. Although, some states in the U.S like Illinois, California, Indiana, Alabama, Alaska, Arizona, Connecticut etc have since included lawyers and legal services as essential service.
The ABA isn’t the only one urging for uniformity on what is considered an essential service. Attorneys representing government contractors told Law360 that one of the biggest challenges they have faced over the past two weeks is,trying to decipher conflicting messages about whether their clients’ businesses are considered essential.
It is contended that due to the vital role of lawyers who are charged with the responsibility of upholding the rule of law, President Muhammadu Buhari should deem it fit to include lawyers as essential workers, or the National Assembly and supreme Court should make laws and pass decisions respectively to achieve this. The President president of the Nigerian Bar Association should also take note of this issue and agitate for it.
In Nigeria, the Presidency listed some sectors as essential service workers without including lawyers/ Legal Services.However,is contended that lawyers and legal services ought to be very essential because even in this time of the pandemic, the government and every other sector including citizens still abides by law.Further,it is the legal instrumentality that controls the rights and limitations of everything.Hence, there is need for the custodians of law to also be on active duty.
It is accordingly contended that, Lawyers/Legal service provides essential services:as we cannot do with out the law.
ABOUT THE AUTHOR:
MBANG CONFIDENCE (S.A.S) is a final year student of the faculty of law, University of Calabar.He is a paralegal of the Godwinson Churchill and co law firm in Calabar.He has passion for exploring the law with his Articles and Agitations.
For knowledge and Justice