THE LEGALITY OF THE EXECUTIVE ORDER OF RESTRICTION OF MOVEMENT PASSED BY PRESIDENT MUHAMMADU BUHARI AT THE OUTBREAK OF COVID-19 PANDEMIC.

With the recent happenstances as regards the widespread of the epidemic ‘COVID-19’, His Excellency, President Muhammadu Buhari has issued some regulations and orders restricting the right of movement in certain states in Nigeria such as Ogun State, Lagos State and Abuja. 

While some jurist has argued that the said restriction order is an infringement on the right stipulated in Sec. 41 of the 1999 Nigerian Constitution, others have argued that the said restriction order is rooted in the law and as such serves as a limitation of the said rights in section 41 of the constitution.

The writer will toll the line of these other jurists in this article by giving legal backgrounds and standing on which the said restriction of movement order is rooted in.  

It is no news that the world today is being ravaged by a deadly virus – Corona Virus (COVID-19) which has gained a widespread all over the nations of the world.  The pandemic of this deadly virus has stampeded the development of most nations and countries by keeping their economy at a standstill. 

The drastic nature of the widespread of the epidemic – COVID-19 has led the Presidents of various countries to also take quick and urgent steps by making certain orders that will help to curtail the further widespread and increase of COVID-19. 

The President of Nigeria does not constitute an exception to this move of curtailing the virus by making some orders.  

Just recently, President Muhammadu Buhari made an order restricting movements in states like Lagos, Ogun and Abuja.  This order has aroused some criticisms by some jurist who tend to argue that the said order is an outright violation of the right to freedom of movement prescribed for in Sec. 41 of the 1999 Constitution.  

It is a truism that the doctrine of Separation of Power operates in a democratic society as Nigeria and  as such, the Legislature is charged with the responsibility of making laws while the Executive arm implements already made laws.  

However, an exception to this principle of separation of power is founded in the principle of Checks and Balances. 

This principle of checks and balances has diffused the function of making certain regulations and orders to the Executive arm of government basically to the President. 

This underscores the reason Mr. President made his order restricting the movement of people in some areas in the country.  

Section 41(1) of the 1999 Constitution no doubt provides for an inalienable right that is right to freedom of movement. 

The Section provides that every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom. 

Despite the express provisions of Section 41(1) of the constitution, Section 45(1) of same constitution serves as a clawback clause to the provisions of section 41(1). 

Section 45 of the constitution provides that nothing in sections 37, 38, 39, 40 and 41 of the constitution shall invalidate any law that is reasonably justifiable in a democratic society. 

Section 45(1)(a)  specifically indicates that such law that is reasonably justifiable in a democratic society must be for purposes of interest of defence, safety, public order, public morality or public health.  

This goes to buttress the fact that the enjoyment of the fundamental right of movement is not an absolute one as it is limited by Section 45(1) of the constitution based on certain grounds. 

The Quarantine Act CAP Q2, Laws of the Federation of Nigeria, 2004 is no doubt an archaic colonial legislation but it is an existing law deemed to have been made by the National Assembly subject to Section 315(1)(a) of the constitution and as such it is reasonably justifiable in a democratic society as Nigeria. 

By virtue of Section 3 of the said Quaratine Act, “the President may by notice declare any place whether within or without Nigeria to be an infected local area and thereupon such place shall be an infected local area within the meaning of the Act”. 

Furthermore, Section 4 of the same Act states that ‘the President may make regulations for all or any of the following purposes : 

From the above, it can be garned that Section 4(c) of the Quarantine Act specifically confers on the President the powers to legislate in order to prevent the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria. 

Obviously, during the course of exercise of this power, locomotion or movement must be halted in other to contain the spread of the virus. While the lomotion is limited, it’s important to note that man is the primary host of the virus and as such would have his freedom of movement curtailed.  

The cumulative gamut of Section 4 of the Quarantine Act, 2004 grants authority and binding force to the restriction of movement order of Mr. President. 

The whole essence of the enactment of the Qurantine Act is for a time like this as espoused in the long title of the said Act which reads thus : 

Given the fact that Fundamental human rights are not absolute and as such any law reasonably justifiable in a democratic society can operate to serve as a limitation of such human right(s), the order made by Mr.President restricting movements in certain states in Nigeria which his power to do so is rooted in the Qurantine Act, 2004 is legally valid with the full force of law. 

This goes to state that Quarantine Act can provide powers for restriction of movement during this COVID-19 pandemic. 

CONCLUSION 

Albeit Mr. President may not have made his orders restricting movements in the specified states without reference to any law as a backup, that does not mean that his orders are of no effect in law nor without validity so far as such law exists. 

The legality of the restriction of movement order by Mr. President is one that is strongly rooted and founded in law. This goes to state that it is justified. 

RECOMMENDATION 

No doubt that the Nigerian Government in a bid to contain the widespread of the epidemic – COVID-19 in the country especially in specific states as espoused above, has restricted the movement of people in such states but however the government are also expected to provide reasonable means of livelihood to the average Nigeria Citizens for their survival in this period. The distribution of foodstuffs and other means of livelihood needed to sustain the citizens especially the indigent citizens should be given quick attention and response to. 

This recommendation is predicated on the preamble of the 1999 Nigerian Constitution which states : 

Also, Section 14(2) of same constitution states thus: 

A due consideration of the above provisions will suffice to show that the welfare of every Nigerian Citizen is paramount and primary no matter the circumstance or situation. 

The Nigerian Government are hereby implored to do the needful as regards the welfare of its citizens in a time like this and not just restrict movement. 

Sylvester Innocent is a 400l Student of Abia State University, Uturu. He is currently the General Secretary of the ABSU BAR COUNCIL. He is an avid reader and a prolific writer.