As one who has been schooled in the nuances of constitutional law, under the watchful eyes of A. B Chiafor, a notable scholar of law, in the prestigious citadel of learning; the great Abia State University.
I seek to determine the legality or otherwise of the executive order on restriction of movement, vis-à-vis the Covid- 19 pandemic.
Follow the threat posed by the rapid spread of the deadly coronavirus, it is not a news that the sudden outbreak of the virus has brought most countries which Nigeria is a victim, to a seeming standstill.
In a bid to curb the virus, the Federal government of Nigeria issued out a directive(s) restricting the citizens rights of movement, the legality of such restriction, this work attempts to examine; with the view of determining its place in law.
I support the restriction of movement, but not through tyrannical means.
Legality when used in law, denote(s) an act or agreement that is consistent with the law or a state of being lawful or unlawful in a given jurisdiction.
I’m aware that the constitution under Sec. 41 preserves the right of every citizen from being expelled from, restricted or refused entry into or exit from Nigeria, such right is not absolute.
Such right can be derogated from under Sec. 45 of the same constitution in the interest of defence, public safety, order, morality or public health, or for the purpose of protecting the rights and freedom of other persons.
The implication of the combined reading of Sec. 41 & 45 of the constitution of the Federal Republic of Nigeria 1999 is that the president or the governor of a state can legitimately issue a declaration regulating the movement of the people, in the interest of public safety, order and public health aimed at preventing the spread of Covid-19.
The above submission is strengthen by Sec. 8 of the Quarantine Act, which gives the president or the governor of a state power to issue such declaration and make any safety regulation to prevent the spread and transmission of infectious disease.
The Application Of International Standards:
The International Human Rights Law guarantees everyone the right to the highest attainable standard of health and obligates governments to take steps to prevent threats to public health and to provide medical care to those who need it.
The Human Rights Law also recognizes that in the context of serious public health, threats and public emergencies, threatening the life of the nation, restrictions on some rights can be justified when they have a legal basis.
The scale and severity of the Covid-19 pandemic clearly rises to the level of a public health threat that could justify restrictions on certain rights, such as those, resulting from the imposition of quarantine or isolation limiting freedom of movement.
Under the International Covenant on Economic, Social and Cultural Rights which most countries such as Nigeria have adopted, governments are obligated to take effective steps for the prevention, treatment and control of epidemic, endemic, occupational and other disease.
Interestingly, under the International Covenant On Civil And Political Rights Law (ICCPR), any measure taken to protect the population that limit people’s rights and freedoms must be lawful, necessary and proportionate.
One would agree with me that the permissible restrictions on freedom of movement for the reasons of public health noted above, may not put in jeopardy the right it self.
The former president of the Nigerian Bar Association (NBA) Dr. Olisa Agbakoba(SAN) agreed that it is illegal to seek to impose sanctions or restrict citizen’s movement without a legal framework.
He noted that since Nigeria has a law that addresses such an emergency situation, it should be invoked as a matter of urgency or government should immediately enact a new law to that effect.
Agbakoba said: “Our lawmakers must as a matter of urgency, pass a coronavirus Act 2020 to deal with the multiple challenges Nigerians face. The law will deal with safety first and foremost welfare second and generally to promote peace and orderliness to confront this monstrosity”.
With greatest respect to the learned silk, should we wait for the entire process of lawmaking before taking the urgent actions that are required in the circumstance?
I agree with Dr. Abiodun Layonu (SAN) when he rightly said:
” The federal government may very well be enforcing the restriction and it would be right. We all need to be responsible for our own interest at this time. Are you not watching what’s going on in other climes? Do we realise the danger we are all in at this time?” He asked.
He argued that public health supersedes the individual right of movement and the constitution provides for the kind of situation we are presently in.
The pandemic is such that even the court has taken judicial notice of.
Any issue that affects the preservation of life is too Paramount and any other law that poses to be a stall to the restitution of the good health of the people can as well abate.
We are not in any academic situation, this is about real life and death. Personally, I’m disappointed that a lot of our people don’t seem to realize how serious this scourge is.
I submit that the logic and necessity of the directives in order to contain the virus cannot be questioned.
“In every law, there are some things which when they happen a man may break the words of the law itself; and such things are exempted out of the penalty of the law, and the law privileges them although they are done against the law, for breaking the words of the law is not breaking the law, so as the intent of the law is not broken. And that is, where the words of them are broken to avoid greater inconveniences or through necessity.”
Necessity creates the law, it supersedes rules, and whatever is reasonable and just in such cases is otherwise legal.
The preservation of life is a necessity, and necessity has no law.
Necessity is itself a law which can not be avoided nor infringed upon.
No law can oblige a man to abandon his own preservation.
In the words of justice Alfred Denning in Southwark v Williams1 Ch. 734 “ necessity would open a door which no man could shut….the plea would be an excuse for all sorts of wrongdoings..
It follows, then, that the act of a man in violation of law; or to the injury of another, may be justified by necessity because the actor has no will to do or not to do the thing.
There fore, it is urgent that we cooperate with the government to stop the spread of the virus.
Let the Federal government hear this;
A right respecting response to Covid-19 needs to ensure that accurate and up-to-date information about the virus, access to services, goods and services should be made available and accessible to everyone without discrimination, and affordable for all.
And other aspects of the response to the outbreak should be readily available and accessible to all.
Sources Referred To:
Constitution of the Federal Republic of Nigeria 1999( As Amended).
Quarantine Act 2004.
International Covenant on Civil and Political Rights.
United Nations Charter, 1949.
South London Borough Council v Williams(1971) 1 Ch. 734.
About the Author
ALAGOR, TOCHUKWU DANIEL is a law student of Abia State University Umuahia Campus Nigeria and can be reached via
E-mail [email protected]
For knowledge and Justice