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‘Lockdown announced by FG not well planned’

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Chief Sebastine Hon (SAN)


As a result of the threat posed by the ravaging coronavirus pandemic, the federal government recently made some interventions aimed at tackling the disease. Constitutional lawyer and author, Chief Sebastine Hon (SAN) in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE assesses government’s response to the scourge and gave the verdict that the lockdown announced by President Muhammadu Buhari was not well planned.

How do you assess the response of the government so far to the coronavirus pandemic?
So far, the response of the Government has been rather sluggish and largely without any discernable focus. Why the delay in quarantining the whole of Nigeria, as soon the pandemic started rearing its ugly head? In other words, why wait for a whole one month plus before closing our borders? I say this because returnees or foreign visitors to Nigeria did over 99 percent of the initial transmissions. Government’s response even after the closure of the borders is also below average. For instance, after his long silence, one had expected President Muhammadu Buhari to announce strong and comprehensive countervailing measures to tackle the scourge. But alas, the speech was far, from my personal expectations, of a presidential readiness to arrest the rapidly evolving national disaster. Pray, why are foreign countries, which are even worse hit by the pandemic evacuating their nationals from Nigeria but are not doing same to their nationals in Ghana, South Africa, etc? The answer is very simple; they have seen that Nigeria is not serious in combating the killer disease.

Why do you say that president Muhammadu Buhari’s address on covid-19 is far from being satisfactory?
How much of the speech involves spending of money at this time when such is needed most? At what most needful time will Nigeria flex its financial muscle? Look, death is menacingly advancing towards us; and Nigeria needs to organise itself on the largest scale ever, in terms of mobilising men and resources to face the enemy that is already in our territory. If we cannot get it right now, I wonder when we would. Mr. President stated that he had directed N15 billion initial interventions and then he plummeted into talking of postponing moratorium of moneys borrowed. How will that translate to urgently needed cash? Then, he talks of continuing with the school feeding programme even when he acknowledges in the same speech that schools have closed and even when he has directed total shut down of some States.

Is this not contradictory – especially in view of the social distancing measures necessary for the curtailment of the disease? What we are facing now is more threatening than when a sovereign nation declares open war on us; because unlike when there is such open confrontation, our enemy now is rather sneaky, dodgy and invisible. Extraordinary measures are needed to apprehend and deal with him. I will give some few examples of how countries are responding to the scourge, including poorer countries than Nigeria. In Ghana, President Akufo-Addo ordered the release of the sum of US$100 million to stop the plague.

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This is the equivalent of N37.7 billion, which is more than double the amount our President boasted about in his speech. The UK, on March 17, announced that it would be dolling out the princely sum of US$399 billion as loans to individuals, companies and other entities. Prime Minister, Boris Johnson, in a joint press briefing with the Chancellor, Rishi Sunak, proclaimed that Britain “must act like any war-time government and do anything it takes to support our economy.” Canada has in the month of March alone deployed over C$100 billion made up of C$52 billion direct financial support for individuals and businesses; C$55 billion tax deferrals and $27 million to aid research in corona virus.

Similarly, the Central Bank of Brazil directly injected $240 billion into the financial sector of the country, through commercial banks and finance houses. Also, the Colombian Central Bank announced, on March 23, 2020, that it would spend about US$2.5billion to buy debt instruments issued by private credit institutions. The Central Bank of South Africa, called the South African Reserve Bank, on March 25, 2020, announced that it was directly buying government bonds, to unblock that country’s beleaguered local money market. In a statement it issued, this swift interventionist policy is aimed at “providing liquidity and promoting the smooth functioning of domestic financial markets.”

In also announcing a huge financial intervention, the head of the US Fed Bank, Jerome Powell, announced a cut in lending rates to range from zero percent to 0.25 percent. He further announced that at least US$700 billion will be released in treasuries and mortgage-backed securities’ purchase in the next-coming weeks. The Central Banks of New Zealand, Japan, South Korea, Australia, etc, have announced similar measure. Indeed, Haruhiko Kuroda, the Governor of Japan, announced that the BOJ will “continue to pump ample liquidity into the market.” The Reserve Bank of Australia not only injected $3.6 billion into the economy, but also said it was prepared to buy government bonds. The Bank of Korea also lowered lending rates to as low as 0.75 percent. Even the European Central Bank unveiled a 750 billion Euro stimulus. I can go on and on. What is needed now is the free flow of cash. Don’t we have presidential advisers on economy again? Where is our Central Bank? Where is our CBN Governor, Godwin Emeifele? They must act now.

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Can you explain to Nigerians why you want more money to reach them at this period? Will that not cause reflation?
I boldly state that I don’t want to know what will happen to us after we survive the scourge with the least possible number of casualties. In any case, the economic advisers and Central Bank Governors of those countries mentioned above are not robotic or braindead. The Holy Bible, whilst condemning the love of money, says money is a defence! The all-knowing Holy Spirit who inspired the writing of that scripture is not and cannot be a liar. Let me remind you that there was one scourge that shook the whole world in the 14th century. It was the Bubonic Plague, also known as the Black Death Plague, which also emanated from China and lasted for as much as seven years, 1346 to 1353. It reduced the world population from an estimated 475 million to between 350 and 375 million.

Other records even estimate that it killed nearly 200 million people! In April 2012, the Middle East Respiratory Syndrome broke out and has so far spread to 24 countries and has so far consumed over 400 people. The Ebola, which emanated from Congo, is still killing people, after consuming thousands. The Severe Acute Respiratory Syndrome (SARS) of 2002 affected 8,098 and led to the death of 774 persons. Look, we need more money to provide more hand sanitisers, more fumigation equipment, more screening and isolation centres and more medicine and food to reach the poorest of our people. It is also needed to train more ad hoc and volunteer staff. The Federal Government should give humongous amounts to each State of the Federation and the FCT and should ensure that at least three screening and isolation centres are established in all the 774 Local Government Areas of the country. This is a case on national emergency. Money, money, money! That should be the immediate raw material to counter the scourge. The Federal Government, which has over the years resisted restructuring and has centralised resources should not shirk from its responsibility when we need it most. The time to act is now.

You have so much harped on the federal government deploying massive financial resources. In the light of dwindling oil revenue, which is our mainstay, and in the light of section 80(2), (3) and (4) of the 1999 constitution, how will the government fund the establishment of more screening centres at this point in time?
It is true that by virtue of the above-named provisions of the Constitution, the president can only spend moneys provided for in the national budget or approved by the National Assembly or the Constitution itself. But I have shown above how various countries have resorted to their Central Banks to provide the necessary escape valves. Nigeria should not be an exception. We should not soon forget what former CBN Governor, Muhammadu Sanusi, did in 2013; when he caused the CBN to release the sum of N150 billion to manufacturers, at the rate of seven percent interest, to wake up the sinking manufacturing sector.

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The laws under which Sanusi acted are still available for use now. Besides, the presidency has always summoned the National Council of State or the National Economic Council to take critical decisions. Since the membership of these bodies is rather small, to summon them for a meeting at this time will not take much. They will come and take the decision, for instance, that money from the excess crude account or our foreign reserves be deployed to arrest the emerging disaster. Since the funds in these two accounts are not part of the Consolidated Revenue Fund of the Federation, they can be spent at this momentous time and account thereof given to us either immediately or later. We have travelled this path for even less-deserving situations. Why not now? Let me also make this point. Even though section 83 of the Constitution has authorised the National Assembly to establish a Contingencies Fund – to enable the national government tackle such national emergencies like the Corvid 19, section 15 of the Finance (Control and Management) Act, 1958, which had set up that Fund, provided, due to the economic realities of that time, that the meagre sum of N100 million be kept in that Fund! Resort to this Fund, therefore, seems futile. The remedy to our quagmire is the CBN. No other person or authority can lawfully, satisfactorily and immediately rise to the occasion.

In the event that the virus is not contained in 14 days, should the lockdown be extended and how will that impact on the lives of citizens, especially the poorest of the population?
I am neither an economist nor a health worker; but let me attempt to piece together what I can gather from the information available to every common educated person. We are informed globally that the symptoms of the disease manifest from the 2nd to the 14th day of the victim’s contact with a person already infected. Let’s look at the following hypothesis: If Mr. ‘A’ is infected today, but symptoms manifest between day 2 and 14 days, within this period, including the 14th day, other persons who come into contact with him will be infected. The 14 days of the successive victims will then start counting differently, making the killer chain to continue running almost endlessly! In short, if Jehovah God Almighty does not come to our aid, coupled with the lackluster handling of the pandemic by the Government, we will be living in a fool’s paradise to think that the Corvid 19 plague will vanish within weeks. The lockdown was not well planned, forcing many to queue up at banks and other places where the locals scramble for food and other essentials, thereby weakening the social distancing mode, the common man is put at an immeasurable amount of risk. This is the time to act, if I must shout even hoarse.

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What is your position on the legality or otherwise of the presidential directive for a lockdown in two states and the FCT, which involves restriction of movement of citizens guaranteed by the constitution as a fundamental right?
My answer is simple and straightforward. Section 45 of the 1999 Constitution empowers a breach of some of the provisions guaranteeing fundamental rights on the grounds, inter alia, of securing public health. This exception fits four-squarely into the situation at hand. My only worry is that Nigerians were not put on proper and enough notice prior to the lockdown. Having committed that initial error, however, the government should take some of the steps analysed above, with a view to not only cushioning the effects of the virus, but also stamping it out. What I also find worrisome is the federal government’s directive that States should not ban interstate movement. This is again one area the government has gravely erred. This is a federal as opposed to a unitary government, where the centre barks out orders to the components. Each State has power to take decisions that are in the best interest of its indigenes. Except when the commuters are ‘quarantined’ or cocooned in the vehicles traversing such States, which in any case will be extremely difficult to monitor, the States should be left to carry on as they deem fit, within the confines of the law. After all, section 45 of the Constitution is applicable to the States as it is to the government at the centre.

Presiding officers of the judiciary has also shut down courts. How is this going to impact on justice delivery?
There is no single doubt that all aspects of our national life are being and will continue for some time to be negatively affected by the outbreak of this scourge. Even critical sectors like justice delivery will, per force, not be spared; but the extent is what no one can accurately ascertain now. The dockets of the various courts are already overloaded, crying for speedy discharge of those loads. The situation on ground will further worsen the fate of the litigants whose matters are pending. Quick action steps, like securing Anton Piller Orders, Norwich Orders, interim injunctions, orders for preservation of property, detention of persons pending investigation, forfeiture orders and a wide range of other interim remedies, will surely not be taken, except in States where there is only partial lockdown. We also have issues like prolonged detention of accused persons, delay in justice delivery generally, etc. In such situations, sociological and economic problems become inevitable. For instance, and I pray this does not occur, communal conflicts that could have been avoided if the law courts were open, may erupt. The government will also lose big revenue, because litigants will not be paying filing fees. Another angle is that lawyers, especially the young ones, will suffer stupendous loss of revenue; because litigants only pay when matters are ongoing.

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In particular, will time still be running against litigants in filing of suits and other processes?
I do not think statutes of limitation will affect the filing of such suits or the taking of such steps. This is because time cannot begin or continue to run when there exists a stout impossibility for taking steps against litigants or intending litigants. The law cannot, in my humble judgment, be mechanically applied in such circumstances we have found ourselves. A cause of action is always to be separated from a right of action. While a person might possess a cause of action (a litigable circumstance or grievance), he must be in a position to exercise his right of action before any statute of limitation will catch up with him. If he has no opportunity to exercise such right, time of limitation cannot, and should not, start counting against him. After all, statutes of limitation in Nigeria are an offshoot of the evolvement of equity in the UK, where there was need to prevent a litigant from keeping his would-be opponent waiting perpetually in expectation of a lawsuit.

Equity stepped in to cushion the psychological effect on would-be defendants who had to labour almost endlessly in expectation that they would be sued. The same equity, which came to cover the space arid law could not cover, will stand in defence of would-be plaintiffs, in such situations we have found ourselves in today. What was good for the goose would now be good for the gander. Above all, however, I pray that the scourge comes to an end timeously. I did not move with my library to Gboko where I have self-quarantined, hence I cannot continue doing my work as I have over time. One’s knowledge will either be lost to some extent or will stagnate over time.

Do you have any suggestion to make to the National Assembly on how to also contribute in tackling such situations, in view of the seeming unpreparedness of the executive to handle the corvic-19 virus?
Lawmaking is a serious business and not a jamboree. This is because it is the quality of the body of laws and justice delivery system existing in any given body polity that makes or mars such a polity. Without qualitative laws in place, the two other arms of government will also not function well; the economy will be in doldrums; there will be social dislocation; crime rate will increase and a whole gamut of other consequences will follow with alacrity. Clearly, therefore, the National Assembly does not only need to do much in shaping our political and economic direction as a nation, it must also realise that it is constitutionally positioned to prepare the nation legislation-wise, to face drastically emerging scenarios like the current one. Section 4(1) of the Constitution, for instance, provides that the legislative powers of the Federation shall be vested in the National Assembly. Now, the Exclusive Legislative list has 68 Items upon which the National Assembly could exercise such legislative powers.

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This list, wide as it is, is exclusive to the National Assembly. In addition, the Concurrent Legislative list, which the National Assembly shares with State Houses of Assembly, has 30 Items. So, the National Assembly is at the epicenter of everything and it needs always to draw from this wide and long range of constitutional powers vested on it to prepare the nation for any eventuality. Having so said, I will first of all suggest that the Finance (Control and Management) Act 1958, as amended, be further amended and unbundled, meaning that the amount to kept in the Fund does not need to be stated. With due respect, it makes no legislative sense to make a law that would only last in efficacy for a few months or years. N100 million in 1958 is not the same in value today. This is an Act that was amended severally, and which has also clearly acknowledged in its provisions the extant provisions of the 1999 Constitution on the need for a contingencies fund.

That means some of the amendments were effected after the 1999 Constitution had come into force; yet section 15(1) thereof, which stipulated a meagre N100 million to be kept in the fund was retained! Apart from tinkering with the Finance (Control and Management) Act, the National Assembly should also, as has been suggested wildly and consistently, amend vital provisions of the Constitution to decentralise power. What is happening now is just one of the dangers of over-centralisation of power. If the federating units control the national resources substantially, you will see massive (call it competitive) efforts made by the federating units to fast-track development and also to arrest situations like the current one. Can’t you see how Lagos is tackling the Corvid-19 scourge? This is because Lagos has more money than all the States of the Middle Belt put together. Let the National Assembly jettison partisan loyalties and respond positively to our yearnings this time around. I so strongly urge.

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