IS THE COVID-19 LOCKDOWN IN NIGERIA UNLAWFUL?

BY SAM ELEANYA

To address the declaration of a global pandemic by the World Health Organisation, WHO, the federal government of Nigeria, the Lagos State Government and other States in the country rolled out various legal instruments, with unprecedented and sometimes outright draconian measures aimed at containing the same deadly virus. Are they valid under the Nigerian Constitution and legal complex?

• The COVID-19 Regulation 2020 of the President of Nigeria was made pursuant to the Quarantine Act, 1926. Its Lagos counterpart, the Infectious Diseases (Emergency Prevention) Regulations 2020 was made pursuant to the Lagos State Public Health Law and the Quarantine Act. Both owe their ultimate validity to the 1999 Constitution of the Federal Republic of Nigeria.

The Quarantine Act 1926 is deemed an existing law under s.315 of the 1999 Constitution. In other words, since it pertains to a subject matter which falls under the Exclusive Legislative List which only the National Assembly has powers to legislate upon, Its application in Nigeria is only valid to the extent that any of its provisions is amenable to the framework of the 1999 Constitution, including the fundamental human rights it recognises, guarantees and protects.

The Quarantine Act under section 2 defines clearly how an Infectious disease can be designated for recognition throughout the whole of Nigeria. It needs to be one of a number specifically named in the Act or an additional one designated by Notice of the President (or where he fails to do that, a Governor for his State alone). Thus, it seems that the President and the Governor are in compliance of that provision.

Designation as a ‘dangerous infectious disease or contagion’ is different from declaration of the location over which special rules of law will apply so as to contain an active incidence of a dangerous infectious disease.. The Quarantine Act under S. 2 also mandated that an infectious diseases or contagion be narrowly identified within a ‘local area’ as defined by the Act. Instructively, such an identification did not include ‘State’ or ‘Region’ or ‘protectorate’ or anything approximating to either of those entities even in 1926. Instead, the Act used this well-known phrasing: ““local area” and defined it to mean “a well-defined area, such as a local government area, a department, a canton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such areas.”

That definition alone is fatal to every Regulation or Notice made by either the President (which purported to apply to Ogun State, Lagos State and FCT) and the Lagos State Governor’s which purported to apply to Lagos State as a whole instead of as disparate Local Governments by name. (Lagos State adopted a creative but disingenuous way of sidestepping the legal hurdle by making the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020’s local area declaration applicable to “all the local government areas in the State”. The response is that medically, nothing is local if it covers every part. The essence and substance of declaring something to be local is that it is not general and widespread.)

The reason is because the Quarantine Act does not envisage or cover the unprecedented lockdown of healthy people and the wanton derogation from their fundamental rights and freedoms as presently obtains. It was designed to isolate and contain as narrowly as possible the source of any infectious disease. That is the right way as there remains no hard scientific data that lockdown makes any significant difference in the short to long term in containing an infectious disease already within the community and which manifests asymptomatically in a large number of the population. Even if there was such a data, the Quarantine Act would still not be a basis for that invocation. Its ambit is the containment, at source point, if possible of any infectious disease or contagion.

Another fatal failure of the federal and Lagos Regulation is that both engender and promote the discriminatory treatment of people based on their professional undertakings, allowing some to operate and others to stay proscribed because they do not satisfy the Federal Government’s or Lagos State’s spurious concept of essential services. The truth is that the concept of ‘essential services’ as a basis for suspension of some economic activities and the promotion of others is unknown neither to the Constitution or the Quarantine Act and can not legally constitute any valid ground to sustain discriminatory interference with the livelihoods of Nigerian citizens. The patent failure to device protocols which allow for the equal treatment of citizens under such draconian measures are inexcusable.

The Quarantine Act is inferior to the Constitution. It does not by its express wordings or implications warrant the massive curtailment of the rights of Nigerians to movement, worship, assembly, dignity as to work and employment, etc. Being antecedent to the 1999 Constitution, it is by virtue of s.315 only applicable in a mode that would best promote, not attenuate the express objectives of the 1999 Constitution.

s.7 makes clear that neither the President or Governor is allowed or has the power to impose any derogation from the rights of a citizen that is beyond the jurisdiction of a Magistrate Court viz: “Proceedings for imposing any fine or imprisonment under this Act or for recovering any expenses incurred or charged by the Government in carrying out the provisions of this Act may be commenced before and determined by any magistrate.” Extensive derogations from fundamental human rights and freedoms are not within the jurisdiction of a magistrate. Pursuant to the Fundamental Rights Enforcement Procedure Rules, the High Courts (State or Federal) would be the first place to properly ventilate many of the so-called impositions that have been made by the President and Governor pursuant to their COVID-19 Regulations.

Directly, section 1(1)(2)(3)(4) of the COVID-19 Regulation are a nullity in so far as their import is to (1) suspend citizen’s constitutionally guaranteed right to movement and dignity of person in the pursuit of lawful economic activities within a space greater than the local area recognised by the Quarantine Act; and (2) to enable the president embark on a fishing expedition in hope of using the unlawful ‘containment’ of healthy citizens for long periods to “identify, trace and isolate all individuals that have come into contact with confirmed cases’.

That is a classic case of putting the cart before the horse as well as a lazy government’s attitude to policy engagement pursuant to the express intendment of the Quarantine Act. The Quarantine Act only allows the president to take steps within the strictures allowed after identifying where he infectious disease is – not before. Steps to be taken thereunder by government is to contain the identified source(s0 of the dangerous infectious disease. It is not to enable the government start the identification.

Section 4 (1)(2)(3) of the Act are superfluous and sentimental and of no legal usefulness whatsoever in so far as they purport to appeal to citizens to donate and subjugate their fundamental rights to the President’s non-existent authority to suspend them pursuant to a dangerous infection simply because ‘many other countries have taken far stricter measures in a bid to control the spread of the virus with positive results’. While there are socio-political arguments to the views expressed under the section, it is enough to say they are utterly lacking in legal effect.

Likewise, section 5, 6 and 7 of the Regulation contain wishes and promises that the President hopes to implement which offers no framework for citizens to appropriate them as rights or entitlements. They are thus, another superfluous sentiment expressed within the confines of which should be properly a legal instrument: an indictment of the draughtsmen who developed the Regulation. Legal instruments are not the place for wishes and sentiments preferred by the President which has no legal consequence in themselves strictly speaking.

CONCLUSIONBased strictly, on the Constitution, the Quarantine Act and the COVID-19 Regulations, 2020 of the President, Nigerian citizens fully retain their right to movement. work, assembly, freedom of worship, etc.
The President’s power (from where every Governor derives theirs) is narrow and extends to the containment of source-point of already identified dangerous infections or contagions. It does not extend to measures embraced by the president to make the work of identifying the source point easier at the cos of citizens.

That there may countries where draconian and authoritarian measures have been embraced is no justification for same to be deployed in Nigeria. Nigeria is a federal Republic: not a monarch or President led Parliamentary system as obtains in many European countries (where Parliament or president is deemed sovereign or supreme). We are also not a communist authoritarian regime like China or even its variant in Russia. Ut us wrong to deny Nigerians of the benefits of authoritarianism and unleash the worst externalities on Nigerians when it is convenient for those trusted with governmental powers.

Sam Eleanya is the Editor of lawnigeria.com