By way of introduction, let me start with looking at the meaning of some key terms.
DEFINITION OF TERMS
CORONAVIRUS: This is an infectious disease popularly called COVID 19 which is newly discovered. The virus has never been in existence until December, 2019 when it broke out in Wuhan, China. The virus causes mild to moderate repertory illness in the case of older people and those with underlying medical problems like cardiovascular disease, diabetes, chronic respiratory disease and cancer are more likely to develop seems illness. However some unverified source claimed that 5G is the cause of the coronavirus pandemic.
The disease spreads primarily through droplets of saliva or discharge from the mouth or nose when an infected person coughs or sneezes. The virus responsible for COVID 19 was entirely known as 2019 novel coronavirus. The official names now is coronavirus disease (COVID 19) whereas the virus is called severe acute respiratory syndrome (SARS-COV-2) (world Health organization 2019) this was announced an 11th Feb 2020.
The best way to prevent the spread of the disease and bring down its transmission is to be well informed about the virus and the disease it causes and its mode of transmission. The most effective preventive method is to wash hands regularly with soap for at least 20 seconds, using alcohol based rub in the hand frequently, avoid touching the face, nose or rubbing hand on the eyes and avoid body contact as much as possible. Currently there is no known vaccines or treatments for COVID -19 though many in the medical profession believed that chloroquine can be effective for treatment.
PANDEMIC: This in the other hand is a term used to describe a disease that affects the whole world. It is an epidemic of a disease which spreads among a large region like several continent, or worldwide.
It usually occurs on a scale that crosses onto international boundaries, affecting people on a worldwide scale. A disease cannot be referred to as pandemic simply because it spreads worldwide, it must also be infectious or contagious.
Therefore, coronavirus primarily known and referred to as COVID 19 is called pandemic disease because it has spread to several continents and countries of the world. It is now a national issue in most countries according Aljazzeera news on Monday 6th of April, the virus has been confirmed on at least 184 countries including countries with more resilient economy with over 50 million people being infected. Because I am not a health expert, I am concerned with the relationship between the coronavirus pandemic disease and the law. So the big question here is how does it relate to law.
It is no more a story that the coronavirus pandemic has affected almost all the sectors across the globe such as economy, businesses, academic among other things. And because of the effect of the virus many legal question and issues arose such as:
Whether the government’s stay at home order in several states in Nigeria is unconstitutional and against the human right freedom of movement.
Whether the quarantine/isolation of those with the infectious disease is against their civil liberty.
Whether the Governors of some states in Nigeria were right in closing their boundaries.
AS FOR WHETHER THE GOVERNMENT’S STAY AT HOME ORDER IN SEVERAL STATES IN NIGERIA IS UNCONSTITUTIONAL AND AGAINST THE HUMAN RIGHT FREEDOM OF MOVEMENT.
This question of the constitutionality of the stay at home order was first asked to Chinese lawyers probably because China was the seminal coronavirus epicenter, after the declaration of stay at home in Wuhan China some months ago, several other countries who were stricken by the disease followed suit in the declaration. Such as UK, Italy, US, Hungary, even in Nigeria.
Let’s use Nigeria as a case study, the question of whether the stay at home order is unconstitutional has attracted many reaction from well meaning Nigerians and reputable lawyers. There has also being differing view on the issues.
Some are of the view that the stay at home order was not done accordingly to the law because the said order violate section 41 of the 1999 constitution of the Federal Republic of Nigeria which guarantees freedom of movement.
According Prof Akin Oyebode (Rtd), he said the stay at home order declared by some governors in Nigeria is an overreaction. In his words, “There seems to be outright overreaction occasioned by the prevailing COVID 19 pandemic. The attempts to establish barriers to constitutionally guaranteed freedom of movement of citizens is gregariously untoward and utterly ridicules. It is a thinly-veiled effort to transform Nigeria into a confederation and is condemnable in its entirety. The Nigerian governor’s forum should rein its ignorant members by upholding the sanctity of the country’s constitution”.
The former President of the Nigeria Bar. Association (NBA) Dr Olisa Agbakoba (SAN), in his view seems to agree or argue in the same line with Professor Akin by stating that it is illegal to impose sanctions or restrictions on citizens’ movement without a legal framer work.
He stated that since Nigeria has a law that addresses emergency situations, it safe to invoke the law as a matter of urgency or government should immediately enact a new law to cover that.
The law makers must as a matter of urgency pass a coronavirus Act 2020 to deal with several challenges facing Nigerians at this time. Just like their counter parts in UK and Hungary etc. So far, it is only Lagos State House of Assembly that enacted a law about COVID 19 in Nigeria.
Kano-base lawyer Abubaka Sami said “government restrictions on the citizens amount to flagrant violations of the fundamental human right of freedom of movement unless it is justified under a law, which conforms with the provisions of sections 45 of the constitution which detailed under which situation the right may validly be degraded form.
He opined that such law must be reasonably justifiable in a democratic society in the interest of public safety, public order or public health as in the instant case with COVID 19.
However, where no such law exists as the basis for such restrictions they are illegal and unconstitutional.
Human rights lawyer Mr Effiong said the ban by Lagos state and other states in Nigeria are illegal without appropriate laws and regulations enabling them, he said human rights are not enjoyable at the pleasures of the government that is why they are fundamental rights.
More also, citing section 5(2) of the 1999 constitution which vested the executives powers of a state in the governors of that state and may subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the deputy governor and commissioners of the government of that state or officers in the public service of the state, shall extend to the execution and maintenance of the constitution, all laws made by the House of Assembly of the state and to all matters with respect to which House of Assembly has for the time being power to make laws.
Under sections 5(3) of the constitution, it is noted, the executive powers vested in a state under section 5(2) of this section shall be so exercised as not to impede or prejudice the exercise executor power of the Federation endanger any asset or investment of the government of the federation in that state or endanger the continuance of a federal government in Nigeria.
In my view it is immaterial if the order affects right of freedom of movement of an individual because I do believe that human rights are not absolute in that there might be some exceptions, which can include preventing the spread of infectious disease such as COVID 19 and protecting public health, I can only encourage that such measures that infringes the right of a person should be exercised basically according to the law, transparently and in a necessary manner with close attentions to the needs of these persons.
More also, without trying to disprove the opinion of legal luminaries my simple answer to the constitutionality of the stay at home order by some Nigerian governors would be probably may be constitutional many be not constitutional but very likely to because according to schedule 7 of the 1999 constitutional of the Federal republic of Nigeria, the governors took an oath to do right do all manner of people and to devote themselves to the service and wellbeing of the people of Nigeria. Again, section 14(2)(b) states that the security and welfare of the people shall be the primary purpose of government. As much as I criticize the government I believe the stay at home order was in line with oath of office and for the interest of everyone and the society at larger.
WHETHER THE QUARANTINE/ISOLATION OF THOSE WITH THE INFECTIOUS DISEASE IS AGAINST THEIR CIVIL LIBERTY.
I am aware that several persons have their view regarding the quarantine/isolation. Many believe vehemently that it is against the right to liberty. However I think quarantine and isolation is a precaution and measures taken to prevent the spread of pandemic like COVID 19. In advanced countries people voluntarily comply with public health advise unfortunately not the same in Nigeria.
In Nigeria there is a quarantine Act which was enacted in 1926. The law empowers the executive to issue regulations for the safety and protection of Nigerians when in the option of the president or state governor, there is reason to believe that there is a grave medical or other dangers as a result of an infectious or contagious disease which may pose a danger to common good of Nigerian. Therefore it is the duty of every Nigerian to cooperate with the government and stay quarantined and isolated where necessary to stop the spread of coronavirus or any other pandemic that may occur in future, remember this coronavirus is real.
However, the order many have not followed the adequate legal processes which I can partly blame the House of Assembly of the affected states and the National Assemble too for their inability to see the urgency in enacting a law and an Act that can guide the executive in a time like this unlike their counter parts in Hungary, US, Uk, Italy etc.
WHETHER THE GOVERNORS OF SOME STATES IN NIGERIA WERE RIGHT IN CLOSING THEIR BOUNDARIES.
It is categorically clear that the issue of borders between states falls generally within the scope of the national boundary commission (NBC) set up under the National boundary commission (establishment) Act 2006.
Looking at section 9(1)(d) of the said Act, the internal Boundary Technical committee (IBTC) shall promote the development and effective management of internal boundaries (ie boundaries between states). Under section 13 (i) of the Act, the states and federal capital territory boundary committees shall each-liase with the state boundary committees of neighboring states with the view of taking joint measures that shall promote good inter community relations.
In the light of the above Act it is my view that a state government can only work hand in hand with the IBTC and the state boundary committees of neighboring states in taking joint measures that shall promote good inter community relationship since Section 13(j) of the national boundary Act provides that states government can set up checking points mannered by a combination of national centre for disease control (NCDC) officials and local government health inspectors to conduct general inspection and seaming of persons making ingress and egress into their states with a view to identify COVID 19 infected persons and quarantine them on isolation camps.
In conclusion, in the matter of using law enforcement agents like the police to arrest and criminally punish people who defy the stay at home order could be unconstitutional because it contravenes section 36(12) of the 1999 constitution of the Federal Republic of Nigeria which provides that before a person can be charged of a criminal offence the offence must be defined and penalty described in a written law, I could not blame the police however because it is not their duty to determine whether any law is constitutional or unconstitutional. This means that citizens are never to be punished because of this order since it cannot be found in any written law with the exception of Lagos State government because the state House of Assembly have enacted a law in that respect.
The case of Faith Okafor V Lagos State Government supports this assertion, in that case the monthly environmental sanitation in Lagos state was declared illegal and the court ordered the Lagos state government not to restrict people’s movement on that regard.
The court in its judgment banned the state government from further restricting anyone’s movement within Lagos state at any time or any day whatsoever on the basis of environmental sanitation as there is no written law to that effect.
The Justice of court of Appeal, Lagos division who delivered the judgment held that in the absence of a written law prescribing same, the governor’s directive for people in Lagos state to stay at home and not be move about thereby restricting movement of persons in Lagos state within the hours of 7am to 10am on the last Saturday of every month was unlawful, illegal and unconstitutional.
It is therefore clear that the illegality in the declaration of stay at home order by some state government is that it is against section 41 of the 1999 constitution hence infringes on the freedom of movement of the people which is their fundamental right. Also the use of police to enforce the said declaration contravenes section 36(12) of the 1999 constitution simply because the order is never a written law, neither is the closure of state boundaries by the state governors legal. A call to the National and State House of Assemblies to rise up and do their work.
ABOUT THE WRITER
UDEH BONIFACE ONYEKACHI is a law student of Chukwuemka Odumegwu Ojukwu University, Anambra State. He is a legal Reseacher and author.