On constitutionality or otherwise of FGN’s imposed lockdowns affecting FCT, Abuja, Lagos and Ogun States
By virtue of Section 299 of the Constitution, the imposition of lockdown imposed by the Federal Government on the Federal Capital Territory, Abuja, is constitutional to the extent that all the legislative and executive powers vested in the State House of Assembly and Governor of each State of the Federation are vested in the National Assembly and the President of the Federation as far as the FCT, Abuja, is concerned.
However, by virtue of section 4 subsections (6) and (7), section 5(2)(a) & (b), section 305 subsections (4) & (5) and section 45 of the Constitution, the lockdown and the extended lockdown imposed on Lagos and Ogun States are unconstitutional.
Section 4 subsections (6) and (7) of the Constitution vest the power to make laws for the peace, order and good government of the State or any part of the State in the State House of Assembly while sections 5(2)(a) & (b) of the same Constitution vest the Executive power to execute and maintain the provisions of the Constitution and the laws made by the State House of Assembly in the Governor.
It is only under Section 305 of the Constitution that the Federal Government may find some justification in the imposition of lockdown on any State, in this case, Lagos and Ogun States. But this power of the Federal Government or the President under section 305 is subject to two conditions, which were not fulfilled before the declaration and imposition of lockdown by the President on the two States affected.
Section 305(1) provides for declaration of a state of emergencyin the Federation or any part of the Federation. This power is however subject to the existence of six listed conditions and fulfilment of prescribed procedures.
The six conditions are as listed in section 305(3)(a)-(f). They are when: (a) the Federation is actually at war; (b) the Federation is in imminent danger of invasion or imminent danger of involvement in a state of war; (c) there is actual breakdown of public order and public safety in the Federation; (d) there is clear and present danger of an actual breakdown of public order and public safety requiring extraordinary measures to avert such a danger; (e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity; (f) there is any other public danger which clearly constitutes a threat to the existence of the Federation.
In the context of COVID-19, it is my opinion that a declaration of a State of Emergency may be justified under Section 305(3)(e) and (f) on the ground that the disease is not only a national disaster constituting a threat to Nigeria, it is indeed a global disaster, which threatens the continued existence of humanity or our present world.
However, there are certain procedural requirements, which have to be fulfilled before Mr. President can validly impose a State of Emergency under which the lockdown that has been imposed and extended can be valid under the Constitution. The procedural requirements are as follows:
Proclamation of a State of Emergency in an Official Gazette (S. 305(1); transmission of the Official Gazette to the Senate President and the Speaker of the House of Representatives, each of whom shall forthwith convene sessions of the respective Houses to consider whether to approve the Declaration (S. 305(2); the Declaration shall cease to have effect within two days if the National Assembly is in session and the Declaration is not supported by two thirds majority or it shall cease to have effect within 10 days if the National Assembly is not in session and there is no resolution supported by two thirds majority of each of the two Houses of the National Assembly (305(6)(b); if approved by the National Assembly, the Declaration shall cease to have effect after the lapse of six months, provided that where necessary, the National Assembly may extend the period before the lapse of six months (305(6)(c); the Declaration is also revocable by the National Assembly at any time after its approval if so revoked by a simple majority of each of the two Houses of the National Assembly.
Where the State of Emergency affects a State of the Federation, the President is only empowered to so declare only at the request of the Governor, with the sanction of the resolution of the State House of Assembly supported by two thirds majority of the members of the State House of Assembly (S. 305(4), provided that the President may still impose a State of Emergency where the Governor fails to make a request, within a reasonable time.
However, we have seen that the President did not invoke Section 305 of the Constitution before making pronouncements affecting fundamental right to movement in two States of the Federation. The President imposed the lockdown through a Presidential Speech of 29th March 2020. Paragraph 34 of the said Speech prohibits “cessation of all movements” in Lagos and Ogun States, as well as the FCT, Abuja. Paragraph 36 states that “the Governors of Lagos and Ogun States …have been notified”, among other measures.
It was only after criticisms challenging the constitutionality and legality of the lockdown, particularly in Lagos and Ogun States that the President issued the “COVID-19 Regulations, 2020” under the Quarantine Act, CAP Q2, LFN, 2004.
But there are problems with issuing the “COVID-19 Regulations, 2020”, which restricts general movement under the Quarantine Act. Firstly, the Quarantine Act is essentially meant to restrict the movement of victims of an infectious disease, isolate, treat and take care of them. The Quarantine Act is not meant to restrict the movement of those not infected by an identified disease. Therefore, restriction of general movement is not excusable under the Quarantine Act. Secondly, and much more importantly, within the context of the provisions of the Constitution cited above, imposition of lockdown in Lagos and Ogun States, under the Quarantine Act, is unconstitutional. Section 1 sub (3) of the Constitution provides that any other law that is inconsistent with the Constitution shall, to the extent of the inconsistency, be void.
It is recognized that the national lockdown imposed by the Federal Government enjoys some sympathy from the standpoint of the “emergency” posed by COVID19. My take on this is that the Nigerian governments had sufficient time to have prepared for COVID19 and taken constitutional measures to curtail its spread. But for a long time, the Governments of Nigeria behaved as if COVID-19 were a Chinese or European disease, while the Federal Government still actively justified and encouraged “visa on arrival” policy at a time when European countries were shutting down their airports. The argument of “emergency” to justify unconstitutional and illegal measures would therefore not fly, with me. I reject it.
There is also a concern that encouraging Mr. President to declare a State of Emergency could jeopardise other fundamental rights beyond the breach of section 41 (right to freedom of movement), which the lockdown affects. My attitude to this is that by virtue of section 45 sub (2) of the Constitution, the Declaration of a State of Emergency does not necessarily involve measures that deprive all fundamental rights. Section 45(2) of the Constitution provides, in part, that no measures, pursuant to any period of emergency, shall be taken “save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency”. In the context of section 45(2) therefore, it would be expected that under the pressure of the public, the National Assembly would reject any other measure outside restriction of the right to free movement, as far as COVID-19 is concerned.
Therefore, between allowing a breach of fundamental rights subject to the whims and caprices of rulers and deprivation of fundamental rights subject to predetermined constitutional provisions, I would vote for deprivation, only subject to constitutional provisions, only. COVID-19 pandemic may require restriction of movement and closure of businesses in both the private and public sectors, but such should be under lawful and constitutional frameworks, if basic freedoms are not to be jeopardized ultimately under precedents that may not be easily reversed or corrected.
On the issue of the appropriate mechanism to adopt in enforcing lockdowns, it may be useful to do a kind of international comparison. In an online article posted on 30th March 2020 at <https://theconversation.com/state-of-emergency-how-different-countries-are-invoking-extra-powers-to-stop-the-coronavirus-134495> Alan Greene established that under the current covid19 pandemic, six European nations have declared a state of emergency under Article 15 of the European Convention on Human Rights (ECHR). They are Armenia, Estonia, Georgia, Latvia, Moldova and Romania. According to Greene, othercountries like Italy and Spain, have not used the ECHR mechanism but have declared states of emergency in accordance with their constitutional provisions. Italy’s constitution, for example, only allows an emergency to be declared by the government, subject to review by its legislature. My key message or central concern is that governments should not be allowed to do, just whatever they like in response to any kind of emergency in disregard of constitutional provisions.
MY GENERAL ATTITUDE TO GOVERNMENTS’ GENERAL RESPONSE TO COVID-19
The attitude of the Federal and State Governments to COVID-19 is characterized mainly by “lockdown”. This is a measure copied from China, Europe and elsewhere. While lockdown may be necessary, it ought to be properly domesticated by taking into account the peculiar Nigerian environment. For example, perhaps apart from some places in the FCT, Abuja, there is no safe pipe borne water for drinking and other purposes for majority of households in Nigeria. Majority of our people have to cover long distances, by trekking or by other means, on a daily basis, in search of water. Lockdown in such a context is to deprive ordinary people of access to water. Again, majority of our people eke out a living on a day-by-day basis such that not going out means starvation for them, their children and old people who depend on them. Moreover, lockdown in the context of people sleeping or staying in overcrowded face-me-I-face-you accommodation would violate the social distancing measure. Therefore, there is a need to domesticate the “lockdown” policy.
Properly domesticating lockdown means that arrangements should be worked out to ensure access to food, water, healthcare, sanitation, income security, etc, for ordinary people, self employed and the unemployed, who live by the day. Otherwise, the lockdown would be obeyed at the risk of having people dying of hunger or disease or the people may be compelled to defy the lockdown when driven by hunger to go out in search of means of livelihood. Hunger-virus could be as deadly as covid-19.
To drive home the point I am making, let me quote the experience of one of my UK-based clients whose name I would not disclose. We were exchanging experiences in Nigeria and the period of lockdown in the UK. He said and I quote:
"...working people get 80% of their salary for staying at home. Even self employed are being paid in reference to their last tax returns.
People like me (who are categorised as disabled in the context of UK) are given a paid carer to do shopping and local pharmacist brought my medication home yesterday free of charge.
Homeless were taken off the streets and placed in hotels.
No banks or landlords can evict for non payments of mortgages or rent for the 3 months. Ditto for
Utilities. They cannot cut anyone off for non payment for water or electricity.
SMEs are given tax holidays and government-backed bank loans as a result of stay home order.
They keep giving everything that was asked for by groups, individuals, etc.
Despite being asked not to go out, buses and trains are being run empty for the few hospital personel who have to go to work"
The above speaks to what I mean by saying “lockdown” should be properly domesticated. The practical basic needs of the society must be addressed. In the UK, an hospital was built within 9 days. In China, an Hospital was built within 10 days. Similar efforts were made in the US, all with a view to attendingto the Challenge of COVID-19. In Nigeria, hospitals need to be built and social housing should be built wherein the homeless should be housed or empty houses seized and turned into accommodation for the homeless or converted into hospitals. The funds being set aside by governments and donations being raised ought to be for specified purposes and must be transparently managed, along with democratically elected representatives of trade unions, community associations, religious bodies, and so on. This is the time for the National Assembly to reconvene urgently to pass laws to give legal effects to appropriate measures to tackle COVID-19, based on the lessons we ought to learn from our experience so far. Not properly domesticating “lockdown” is the major shortcoming of the measures taken so far by governments in Nigeria.
But we must make it clear. Ordinary people in their communities and organisations, unions, labour centres and professional bodies have a responsibility to mount pressure on governments to do the needful.
On proposed Amnesty for Boko Haram insurgents
I think the seriousness with which the Chadian government claims it has wiped out Boko Haram from Chad shows the example to be copied by the Nigerian Government. There must be a minimum condition within which any individual or organization would be tolerated in any society – respect for the sacredness of human life. However, in the bid to rescue and safeguard the lives of the Chibok girls and others that are still in the custody of BOKO Haram, some form of negotiations may not be absolutely ruled out.
On security challenge
What ordinary Nigerians are experiencing, particularly during this period of “lockdown” shows sudden and unprecedented insecurity and banditry. According to reports, armed robbers, in Lagos and Ogun States and elsewhere, now attack residents in gangs of hundreds, demanding money and food, showing that extreme hunger is driving them. Rationality ends where hunger begins. Without solving the problem of hunger, poverty and unemployment, it would amount to self-deceit for the government to claim to be on top of the security situation.
On the presidency remaining in the North in 2023
Ordinary Nigerians do not bother about who is the President or the ethnic background of the President. Ordinary Nigerians wanta country that works in their interest. They want a party or President that has a programme predicated on regarding socioeconomic rights such as the right to food, medical care, housing, water, education, healthcare, and so on as fundamental rights. It is the lack of these basic rights that influences people to think that if someone from their ethnic background is in power, they would most likely be accommodated to one degree or the other. But none of the two major political parties has such a programme capable of addressing pervasive poverty. The failure of the two major political parties is the basis for the deepening of ethnic focused identity politics. The threat of the extinction of the human race on a global basis which COVID-19 has posed shows clearly that identity politics does not solve any problem and that it is better to determine political leadership based on pro-people programme rather than on primordial considerations. We must draw appropriate lessons from COVID-19 pandemic.
On allegation of corruption in the judiciary
It is unfortunate that the entire judiciary is being accused of rottenness whereas we have people who are of the finest character quality in the Nigerian judiciary. As far as I am concerned, the Executive arm is to blame for whatever allegations of corruption in the Judiciary in that the allegations being made are usually in connection with electoral disputes. Only those in the Executive arm of government can have access to the sums of money alleged to be involved in the allegations being bandied around. While we condemn corruption in any arm of government, we need to be careful not to accept a criminalization of all other arms of government, resulting in the impression that only the Executive Arm of government is saintly. That is the path to tyranny.
15/4/2020
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