Coronavirus: Lawyers differ on restriction of citizens’ movement without a law
Follow the threat posed by the rapid spread of the deadly coronavirus pandemic and the subsequent stay-at-home order slammed on citizens by state governors, some senior lawyers have declared such restriction of movement without any legal backing as unconstitutional.
The lawyers are of the view that the State of Emergency ought to have been activated according to law because such actions violate section 41 of the 1999 constitution, which guarantees freedom of movement.
Retired professor of law, University of Lagos, Akin Oyebode, described it as an overreaction. He said: “There seems to be outright overreaction occasioned by the prevailing Covid-19 pandemic. The attempt to establish barriers to constitutionally guaranteed freedom of movement of citizens is gregariously untoward and utterly ridiculous. It is a thinly-veiled effort to transform Nigeria into a confederation and is condemnable in its entirety. The Nigerian Governors’ Forum should rein its ignorant members by upholding the sanctity of the country’s constitution.”
Also, former president of the Nigerian Bar Association (NBA) Dr. Olisa Agbakoba, (SAN), toeing the same line of argument, agreed that it is illegal to seek to impose sanctions or restrict citizens’ 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.
“The UK passed the Coronavirus Act of 2020 in just two days. On the part of our government, I call on the president and governors to invoke the provisions of the Quarantine Act to order a complete lockdown of the country for at least 14 days, as only the toughest possible measures will ensure we are safe.
“The Quarantine Act was passed in 1926. The law empowers the president to issue regulations for the safety and protection of Nigerians when in the opinion of the president or state governor, there is reason to believe that there is a grave medical or other danger as a result of an infectious or contagious disease, which may pose a danger to the common good of Nigerians.
“Coronavirus is real. Remember the Spanish flu, it killed 50 million people. With the increased spread of coronavirus also called Covid-19, it is urgent that we cooperate with the government to stop the spread of the virus. Please help the government by complying with regulations, staying at home, maintaining social distance and washing your hands regularly.”
Kano-based lawyer, Abubakar Sani, said such restrictions amount to flagrant violations of the fundamental right of freedom of movement unless it is justified under a law, which conforms with the provisions of Section 45 of the constitution, which spells out the circumstances under which such a right may validly be derogated from.
According to him, such a 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.
“To the extent that no such law has yet been deployed as the basis for such restrictions, they are invalid and unconstitutional,” he declared.
Human rights lawyer, Mr. Inibehe Effiong, said the ban by Lagos and other States are illegal. Without appropriate laws and regulations enabling them, he said no governor in Nigeria could alter, restrict or encroach on the fundamental rights of citizens to religion, peaceful assembly and movement.
His words: “These rights are not enjoyable at the pleasure of the government. That is why they are fundamental rights. What the governors are doing is blatantly illegal and unconstitutional.
“The Court of Appeal in 2016 in the case of Faith Okafor versus Lagos State Government & another, made it abundantly clear that the order or directive of a governor is not a law and its violation cannot attract criminal sanctions.
“The Constitution is clear. If there is an emergency, the proper legal step is to declare a state of emergency. None of the governors has asked the president to declare emergency in his state. None of the governors to my knowledge has made regulations pursuant to the Quarantine Act to curb the spread of coronavirus.”
Effiong, therefore, held that those restriction declarations amount to mere advisory and advised the governors to desist from militaristic way of doing things.
The lawyer argued that no governor could lead outside the dictates of the law, irrespective of the fact that the coronavirus pandemic has endangered public safety and warrants taking drastic measures to curb.
Referring to Rivers State which is governed by a lawyer, he said: “Section 305 (4) of the Constitution gives you, with approval of 2/3 of the members of the House of Assembly, the right to ask the President to declare a state of emergency in Rivers State. Section 8 of the Quarantine Act gives you the authority to issue regulations to tackle Covid-19 pandemic.
“To the best of my knowledge, the president has neither declared a state of emergency in Rivers State nor made regulations pursuant to the Quarantine Act. I am also not aware of any law passed by the Rivers State House of Assembly that empowers you to stop entry into or exit from Rivers State. The resort to executive fiat is thus an act of brazen illegality and unconstitutional. If non-lawyers say that we do not need enabling laws to impose restrictions on the fundamental rights of citizens, they can be pardoned. But a lawyer cannot. You are a governor, not a monarch.
“I support the restriction of movement, but not through tyrannical means. All democratic countries that have imposed such restrictions over Covid-19 relied on enabling laws. We should stop behaving as if we are in a zoo where might is right. Despotism is incompatible with democracy.”
Also, Lagos lawyer, Mr. Theophilus Orumor, citing some constitutional provisions, stated that Section 5(2) of the 1999 constitution generally vests the executive powers of a state in the governor 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; and 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 the House of Assembly has for the time being the power to make laws.
Under section 5(3) of the constitution, he noted, the executive powers vested in a state under subsection (2) of the section shall be so exercised as not to “impede or prejudice the exercise of the executive powers 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.”
According to Orumor, 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.
“Under Section 9(1)(d) of the said Act, the Internal Boundary Technical Committee (IBTC) shall promote the development and effective management of internal boundaries (i.e. boundaries between states). Under Section 13 (j) of the said Act, the State and Federal Capital Territory Boundary Committees shall each- liaise with the State Boundary Committees of neighbouring states with the view of taking joint measures that shall promote good inter-community relationship.
“It is important to note that unlike most international boundaries, which are bounded by physically built gates and frontiers, state boundaries are generally not so physically delineated by physical gates and frontiers. In most cases, they are delineated by rivers, mountains, bridges, valleys, etc. The point I am making is that I do not see how these state governors want to close a border that is not physical. I stand to be corrected, I have not seen the law that mandates state governors to close state borders.
“It is my view that a state government can only work for hand in hand with the IBTC and the State Boundary Committees of neighbouring States with the view of taking joint measures that shall promote good inter-community relationship,” he explained.
Continuing, he said: “I concede that the issue at hand requires that urgent steps be taken by all stakeholders, but you cannot close out a state border from a Nigerian or prevent any Nigerian from entering any state of their choice. From the above elucidation, it is safe to submit that state governor asserting that they want to close their state borders (on their own) in view of the outbreak of the Convid-19 is a misnomer.”
Orumor said what state governments can do is specified under Section 13 (J) of the aforementioned National Boundary Commission Act. According to him, state governments can set up checking points manned by a combination of National Centre for Disease Control (NCDC) officials and local government health inspectors to conduct general inspection and scanning of persons making ingress and egress into their states, with a view to identifying Covid-19 infected persons and quarantining them in isolation camps.
He noted that most of the state governors seeking to close their state borders could have hidden their misnomer and anomaly under section 45(1)(a)&(b) of the constitution, but lamented that the unfortunate reality on the ground was that many of their State Houses of Assembly has not made any such law under which the governors can rely on.
“One would have expected these States Houses of Assembly to immediately make such laws and have them signed by their governors. A way out is for these governors to fall back on their various States’ Laws on Public Health Protection/Environmental Sanitation Laws. They will certainly find a leeway therein,” he summed up.
For Theophilus Akanwa, Lagos based legal practitioner, the act of preventing Nigerians from gaining entry into any state/place in Nigeria due to the spread of the coronavirus contravenes the Provisions of the 1999 Constitution, which guarantees freedom of movement and residence. “The governors can set machinery at their borders to carry out a test on those coming into their various states,” he suggested.
However, thinking differently about the restrictions, the Managing Partner, Foundation Chambers, Lagos, Mr. Donald Ibebuike, said although the right to freedom of movement guaranteed under Section 41 of the 1999 Constitution preserves the right of every citizen from being expelled from or refused entry into or exit from Nigeria, such right is not absolute.
According to him, such right can be derogated from under Section 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 Sections 41 and 45 of the Constitution is that the Governors can legitimately issue a declaration regulating the movement of people in the interest of public safety, order and public health aimed at preventing the spread of Covid-19. The above submission is strengthened by Section 8 of the Quarantine Act, which gives the Governors the power to issue such declaration and make any safety regulation to prevent the spread and transmission of infectious disease, where the President fails to make the relevant declaration and issue regulations under Sections 2 & 3 of the Quarantine Act. The President, in the circumstance, having failed to exercise his powers under the Quarantine Act, the Governors are, by operation of law, empowered to do so.
“In effect, the governors by closing entry points into their respective states for the sole purpose of preventing the spread and transmission of infectious disease (COVID 19) have not infringed on any citizen’s right as it is justified in the circumstance,” he declared.
Sharing a similar view, Dr. Abiodun Layonu (SAN), said no governor decreed a sedentary life for citizens, but are only discouraging movement and encouraging stay at home for most of us, which no one can deny is necessary for the circumstances.
“The exemptions are there for those who need to be out regularly and how they should conduct themselves and the opportunities are provided for shopping for necessaries. Let us comply in our own interest.
“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.
“We are not in any academic situation. This is about real life and death. Personally, I am disappointed that a lot of our people don’t seem to realise how serious this scourge is,” he lamented.
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