STATE OF EMERGENCIES, HUMAN RIGHTS VIOLATIONS AND THE COVID-19 PANDEMIC IN NIGERIA
By Comrade Deji Adeyanju
Generally, human rights are deemed almost sacrosanct in most part of the world where democratic tenets are upheld, and this is why they have universal appeal. However, there are certain instances where these rights have been restricted or suspended in Nigeria. These instances range from war, state of emergencies, coup, outbreak of pandemics, etc. The Constitution of the Federal Republic of Nigeria, 1999, as amended, (CFRN 1999) at Chapter 4 thereof, provide for certain rights that cannot be easily extinguished. These rights includes, right to life, right to dignity of person, right to personal liberty, right to fair hearing, right to private and family life, right to freedom of thought, conscience and religion, right to peaceful assembly and association, right to freedom of movement, right to freedom from discrimination, right to freedom of expression, right to acquire and own immovable property anywhere in Nigeria, etc. In this paper, the writer’s concentration will mainly be focused on the exception to some of these rights as it bothers on the subject matter, particularly in times of emergency. I will attempt to briefly discuss the concept of human rights and make a distinction between human rights and fundamental human rights. Thereafter, I will examine specific rights that have been suspended or restricted during the COVID-19 pandemic. The paper will also examine the justification or otherwise of this restriction. Effort will equally be made to examine instances where these rights have been restricted in the past and juxtapose them with present day restrictions. Particular emphasis will be made to emergencies during military rule, emergency under civilian rule, emergency as a result of force majeure and other emergencies. Lastly, the paper will examine the COVID-19 pandemic, the attendant world health organization regulations and its effect on fundamental human rights of the citizens. Many may argue that even when there are no such extraordinary circumstances like state of emergencies, military coups or a pandemic, human rights are rarely respected in Nigeria as we witness daily extrajudicial killings of citizens by law enforcement officials, unlawful arrests of critics, etc -myself included. These views are justified considering the human rights index ranking of Nigeria but this paper will be restricted to human rights violations under state of emergencies and the Corona Virus pandemic in Nigeria.
HUMAN RIGHTS, STATE OF EMERGENCIES & THE COVID-19 PANDEMIC IN NIGERIA:
Human rights are freedoms, immunities and benefits that, according to modern values, all human beings should be able to claim as a matter of rights in the society in which they live. In Ransome-Kuti vs AG Federation fundamental human rights was defined as a right which stands above the ordinary law of the land and which, in fact, is antecedent to the political society itself. It is therefore a primary condition to a civilized existence as guaranteed in the constitution. It is in the light of the foregoing that the famous constitutional lawyer, Professor Ben Nwabueze defined fundamental rights as what the constitution says it is. It is important to point out the fact that while human rights are universal in nature, fundamental human rights are territorial and is determined by the culture, values and tradition of the people within a particular nation state. For example, the fundamental human rights in Saudi Arabia will be different from that of Nigeria. In Nigeria, the fundamental human rights are contained in section 33 to 46 of the CFRN 1999. These rights have been held to be sacrosanct, save for instances that are equally be provided in the Grundnorm, as aptly captured in Omnibus part of section 45 of the CFRN 1999 which restricts the fundamental human rights guaranteed in sections 37 to 41, i.e, rights to private and family life, rights to freedom of thought, conscience and religion, rights to freedom of expression and the press, rights to peaceful assembly and association, rights to freedom of movement. Specifically, section 45 of the CFRN 1999 provides that nothing in the aforementioned sections shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defense, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. It is in this light of the foregoing, that the court, in N.U.E.E Vs B.P.E while considering the provision of section 45 of the CFRN 1999 heard as follows:
The fundamental rights under section 40 as well as other rights, i.e, under section 37, 38, 39 and 41 has to be read subject to what is reasonable within the democratic society. That is to say, the defendant appellant rights under section 37 and rights to privacy, among other fundamental rights under the CFRN 1999 are not absolute.
Another instance where fundamental human rights of citizens can be restricted is under section 33 of CFRN 1999 on right to life. Similarly, at section 33(3) of CFRN 1999 as amended, the fundamental rights to life is restricted if such life is taken in a manner permitted by law, i.e in defense of self, property or others, in order to effect a lawful arrest or to prevent the escape of a person lawfully detained. Furthermore, at section 35 (1)(E) the rights to personal liberty can be derogated from in the case of a person suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrant for the purpose of their care or treatment or the protection of the community. It is in the light of the foregoing that the supreme court in Osawe vs Registrar of trade unions held that one has to bear in mind, that the rights guaranteed under section 34, 35, 37, 38 of the CFRN are “qualified rights”. There are not absolute rights.
Looking at the above, certain issues stands out, to wit, infectious diseases as a ground upon which fundamental human rights can be restricted. Infectious disease as, defined by the W.H.O, are disorders caused by pathogenic micro organisms such as bacteria, viruses, fungi, etc, and they can spread directly or indirectly from one person to another. Recently the World Health Organization designated the novel corona virus, otherwise known as COVID-19, as a pandemic which will be exhaustibly discussed in this paper. This pandemic has therefore led to the suspension or restriction of some of the otherwise guaranteed fundamental human rights in the CFRN 1999 constitution.
PERIODS OF EMERGENCIES IN NIEGRIA.
Nigeria has witnessed several states of emergencies since its independence in 1966. A major feature of the military rule as seen during the first coup in 1966, second coup in 1975, December 1983 coup, Babaginda 1985 led coup up to the general Abacha palace coup of 1993, is a declaration of state of emergency which usually result in the partial suspension of the constitution, particularly, chapter 4 thereof. In the inaugural military coup broadcast the restriction of fundamental human rights targets freedom of movement, association, liberty, press etc. In Lakanmi v AG Western region and William v Majekodunmi the then military government in both cases suspended the constitution and ousted the jurisdiction of the courts. In the case of Ismaila Isa v ors v president FRN, decree number 85 of 1992 which promotes sedition was declared by the court as a violation of the fundamental human rights, freedom of speech and that of the press. Throughout the military regime in Nigeria, the country is run by decrees, which in itself is a violation of the constitution and an assault on chapter 4. These decrees become the subject of interpretation by the court.
One will be mistaken to assume that these flagrant departures from the constitutionally guaranteed fundamental human rights is restricted to the military regime. Under civilian governments we have also witnessed some state of emergencies. The history of civilian state of emergencies started in 1962 under the then prime minister, Abubakar Tafa Balewa who declared a state of emergency in the entire western region claiming there was a plot to overthrow his government by some Action Group elements in the Western Region. These subsequently led to the arrest, detention and trial of Chief Obafemi Awolowo and other notable members of the then Action Group. In 2004, relying on section 305 of the CFRN 1999, president Olusegun Obasanjo declared a state of emergency in Plateau state as a preventive measure to avoid break down of law and order, and in the process removed the democratically elected governor, suspended the House of Assembly and appointed an administrator. Similarly, president Goodluck Jonathan declared partial state of emergency in parts of Borno, Yobe and Adamawa states. Some of the major reasons for these declarations are the prevention of a breakdown of law and order. However, in enforcing this state of emergency, the citizens’ rights as provided for in chapter 4 of the CFRN 1999 are restricted. Accordingly, the government of the day is often faced with the task of balancing the interest of the state and individual rights of the citizens. This has never been an easy task. More often than not, resistance have been posed from familiar quarters, against the declaration of a state of emergency, as was seen in Plateau State v A.G Federation, where the declaration of a state of emergency in Plateau State was challenged at the Supreme Court, even though same ultimately failed on technical grounds. However, it is submitted that where the functionality of the state as an entity is threatened, the peculiar human rights of the citizens will take a back stage. This does not however, give the government the power to infringe on the citizens rights at the slightest hint of criticism. By the clear provisions of section 305 of the CFRN 1999, a declaration of the state of emergency is not a decision that should be taken lightly. The procedure for the declaration of the state of emergency as captured in the aforementioned section shall only be valid if the president:
A. By an instrument published in the official gazette of the government of the federation, issues a proclamation of state of emergency in the federation or any part thereof.
B. The President shall immediately thereafter, transmit copies of the official gazette containing the proclamation, to the president of the senate and the speaker of the House of Representatives each of whom shall convene a meeting of the House of which if the president or the speaker, as the case may be, to decide whether to pass a resolution approving the state of emergency. The constitution goes further to list instances where the president maybe permitted to declare a state of emergency. These instances include:
A. Where the federation is at war. It is in furtherance of a similar provision that the military government of General Yakubu Gowon declared a state of emergency in what was then known as the Eastern region prior to the commencement of hostilities that eventually resulted in the civil war.
B. In the state of imminent danger of invasion or involvement in a state of war. This can be seen in the ongoing hostilities between the members of the, now proscribed Islamic movement of Nigeria, popularly known as shittes and the federal government of Nigeria, resulting in the detention of Sheik El-Zakzaky, the leader of the Islamic group, on the ground that the group constitute a threat to the existence of the entity known as Nigeria.
C. Where there is actual break down of law and order and public safety in the federation or any part thereof to such extent as to require extraordinary measure to restore peace and security. Sequel to this, president Muhammadu Buhari relying on the quarantine Act, the section under consideration, and section 45 of the CFRN 1999 suspended the rights to freedom of movement, assembly and association in parts of the country in the interest of the public safety, aimed at curtailing the spread of the Corona Virus pandemic. While it is relatively easy to declare a state of emergency under a military government, it is quite a tedious process under a civilian government. This is so because the intention of the drafters of the constitution is that a state of emergency should only be declared when it is absolutely necessary. It is for this reason that the Plateau state government challenged the proclamation of a state of emergency in Plateau state on the ground that the president acted ultra-vise in removing the governor of the state and suspending the House of Assembly.
D. or there is an occurrence or imminent danger or the occurrence of any disaster or natural calamity or there is any public danger which clearly constitute a threat to the existence of the federation, etc.
It must also be noted that at section 45(2) of the CFRN 1999, the apex law stipulates that an act of the national assembly shall not be invalidated only by the reason that it provides for the taking, during a period of emergency, of measures that derogate from the provision of 33 to 35 of the CFRN 1999. The constitution goes further to define period of emergency to mean any period during which there is in force a proclamation of a state of emergency declared by the president in exercise of the power conferred on him by section 305 of the CFRN 1999. It has become necessary to examine the aforementioned section (305) extensively in order to examine comprehensively to what extent the rights of the citizens can be restricted or suspended. As we have seen above, the condition upon which these rights can be restricted particularly in the state of emergency are cast in stone like the rock of Golgotha and cannot be moved.
HUMAN RIGHTS VIOLATION UNDER STATE OF EMERGENCY:
From 1962 when the first state of emergency was declared in Independent Nigeria up to the present day restrictions declared by president Muhammadu Buhari, there have always been attendant violations either by state actors or even members of the public. Chief among these rights that have been violated is the right to life. The right to life is deemed sacrosanct and can only be derogated from in the rarest of circumstances. Section 33 of the CFRN 1999 provides that every person has the right to life and no one shall be deprived of his life save in the execution of a criminal offense of which he has been found guilty in Nigeria or in defense of oneself, others or property. However, in Nigeria, the rights to life is perhaps the least respected rights by state actors, as we have recently seen by the actions of security agents in enforcing the lockdown, as they have killed more citizens extra-judicially than the COVID-19 pandemic. The court has often depreciated all forms of extra-judicial killings. In Kaza V The State it was held that only the court could pronounce a man guilty of death when he has committed any crime. One must then ask, how do you justify the killing of citizens for flouting the lockdown order? Is the punishment commensurate to the crime? Some other fundamental human rights that have been violated or stand the risk of being violated are;
• Right to dignity of human person.
Every citizen is entitled to have his dignity protected and respected by the state in furtherance of section 34 of the CFRN 1999. However, the implementation of the COVID-19 restriction has left much to be desired as it relates to the dignity of Nigerian citizens. All over the country, instances abound where state actors have subjected citizens to dehumanizing treatment either by flogging them, or by making them engage in what is popularly referred to as frog jump and other corporal punishments. Citizens have often been arrested and tortured all in the guise of implementing the present lockdown. Assuming it is even necessary for citizens to be arrested, their rights to personal dignity must be respected at all times. It is for this reason that the court held in Magaji v Board of Custom and Excise that it is wrong to torture a Nigerian citizen in the guise of carrying out a search.
• Right to personal liberty.
By virtue of section 35 of the CFRN 1999, every citizen has a right to personal liberty and no person shall be deprived of that right except in the manner provided for in the constitution. It must be noted that this right can be derogated from where a person is suffering from infectious or contagious disease, as is presently the case. However, the question that remains pertinent is whether these rights can be restricted without necessarily subjecting the citizen to inhuman and degrading treatment? The obvious answer to the poser is in the affirmative. It must also be noted that the restriction of the rights to personal liberty is of different variants. There are persons who are ordinarily infected by the infectious disease. There are equally persons who, though not infected, however, have their liberty restricted in the guise of “general good”. For these set of persons, the rights to liberty is a constitutional right that should not be taken away lightly.
Consideration must equally be made for those persons who may have escaped an isolation center and subsequently returned to the isolation center by state actors. For this later group the process of taking them back to the isolation center is usually littered with constitutional breaches. In Eze & Anor v IGP & 4 ors, the court specifically held that the police can not arrest any one for any offense not criminal in nature, therefore, those who have escaped from isolation center in the country and who have been subsequently rearrested by the Police are raising fundamental issues around rights to liberty as many of them believe that traditional medicine will cure them from the virus.
• Right to fair hearing
The doctrine of fair hearing is one of the great pillars of human rights. Without it justice cannot be served. The doctrine of fair hearing is largely based on two general principles, to wit, the fact that no man should be a judge in his own case, and every person should be given an opportunity to defend himself. Additionally, every citizen who is charged with a criminal offense must be given ample time and opportunity to prepare his defense and equally be given a right to engage a legal practitioner of his choice. This is perhaps one area where the COVID-19 government restriction has largely affected the fundamental human rights of the citizens. Citizens who otherwise have cause to go out in pursuit of essential services or daily bread have found themselves bundled before a speedily constituted mobile court where justice is sacrificed on the altar of speed. These citizens are denied the constitutional provision contained in section 36 and made to face a body of persons that have no semblance whatsoever to a functional court provided for in the constitution. They are denied the rights to call witnesses, denied the right to call their personal legal representative, denied the rights to seek for an adjournment all in an attempt to reach a preconceived judgment and enforce the COVID-19 restriction.
In Shugaba v Minister of Interior Affairs, the court held that the defendant was not given sufficient time and facility to defend himself before a decision was reached to deport him to Cameroun. Also in the case of Zamani Lekwot & ors v FRN, Saro-Wiwa & ors v FRN and Garba v University of Maiduguri, the courts were of the opinion that once fair hearing is breached, the entire case becomes a nullity.
• Right to privacy.
Section 37 of CFRN 1999 guarantees the rights of citizens to the privacy of their homes, correspondences, telephone conversation and telegraphic communication. The effect of the foregoing is that except in pursuance of a court order and just cause, as captured in section 45(1) of the CFRN 1999, as it relates to public interest, public safety, public order, public health, state of emergency and the protection of the rights of others, the aforementioned rights to privacy cannot be derogated from. However, the present restriction has overly threatened the sacrosancy of section 37. In the guise of searching for infected patient, citizens have had their home invaded and even means of communication tampered with in addition to receiving incessant unsolicited text messages from the Nigerian Centre for Disease Control (NCDC). In Ezedukwa v Madueke it was held that the police have no right to invade the home or residence of a citizen neither do they have any right to bug their phone.
• Right to freedom of thought, conscience and religion.
By the provisions of section 38 of the CFRN 1999, every citizen shall have the right to freedom of thought, conscience and religion. This implies that except for reasonable cause, the right to freedom of religion shall not be infringed upon. However, the Nigerian government COVID-19 restriction has affected the aforementioned rights. Citizens have been forced to avoid any form of religious gathering. One will therefore ask is this not a derogation from the constitution? The answer must be in the affirmative.
• Right to freedom of association.
Yet another fundamental human right that stand the risk of being violated and have, in fact, been violated is the rights to freedom of assembly and association. Perhaps, if there is any fundamental human right that is so cherished by the Nigerian citizens, after the right to life, it is the right to assemble freely and associate with other persons. Ironically, the central team of the government regulation on COVID-19 is the restriction of freedom of assembly and association. There is therefore a clash between the citizens’ rights to freely assemble even within their own personal home and the rights of the government to protect the general public against infectious diseases. The unreported case of AG of Lagos State v Funke Akindele and anor is noteworthy in this instance. Reference must also be made to the case of Adams Oshiomhole v IGP and ANPP v Commissioner of Police. In the last two cases the court held that it was unlawful and unconstitutional to prevent the appellants from holding a peaceful gathering.
• Rights to freedom of movement.
Pursuant to section 41 of the CFRN 1999, every citizen of Nigeria is entitled to move freely throughout Nigeria and reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereof or exit therefrom. The case of Shugaba v Minister of Interior solidifies this point. However, a major fallout of the COVID-19 restriction imposed by the Federal government of Nigeria is the total violation of the section under consideration. In recent days, citizens have been expelled and deported from their state of residence to their state of origin. Other citizens have had movement restricted to their state of residence and thereby banning interstate movement in an otherwise constitutionally guaranteed federation. It is for reasons like these, that the court held in Director SSS V Olisa Agbakoba that every citizen of Nigeria has the right to move freely within and outside Nigeria.
• The right to access to court (Section 46 of the CFRN 1999)
Under this section, anybody who alleges that any of the provisions of chapter 4 have been, is been or likely to be contravened in any state in relation to him may apply to a High Court in that state for a redress. Curiously, prior to the formal proclamation of the presidential order on COVID-19, the Chief Justice of Nigeria had issued a circular directing court across the federation to go on a break in the first instance. The effect of the forgoing is that in the event of the breach of the citizen’s right arising from the COVID-19 restriction, the right to seek redress in a court of law is extremely restricted if not totally absent. More importantly, those who have been unjustly convicted in the hurriedly constituted mobile court lack the avenue to appeal their conviction as a result of the COVID-19 restriction.
THE COVID-19 PANDEMIC AND ITS EFFECT.
The World Health Organization in furtherance of his foremost place as a universally recognised regulatory medical body has come up with certain policies/framework in an attempt curtail the spread of the Corona Virus globally, this framework is centered on eight pillars.
1. Country level coordination, planning and monitoring.
2. Risk communication and community engagement.
3. Surveillance, rapid response team and case investigation.
4. Points of entry
5. National laboratory
6. Infection, prevention and control
7. Case management
8. Operational support and logistics
The aforementioned framework have been adopted by various countries and modified to fit their peculiarity. Nigeria, in adopting the aforementioned framework has broken it down into smaller, more understandable concept. In fact, on April 30, 2020, the office of the Secretary to the government of the Federation, drawing inspiration from the WHO aforementioned pillars, came up with an implementation guidelines for the containment of COVID-19. These guidelines were broken down into three general groups, to wit; general information to the Public; Guidance to State and security Agencies; and description of the typical activities allowed under phase. The smaller components of the implementation guidelines covers the mandatory use of non medical facemask in public; prohibition of interstate travel; prohibition of mass gathering of over 20 people outside a work place; mandatory temperature check in public places; social distancing of 2 metres to be maintained between people in workplace and other public spaces; ban on all passenger flights; ban on religious gatherings and mandatory supervision of all persons arriving from outside the country for at least 14 days. These measures, as will be seen hereunder, have profound effects on the constitutionally guaranteed fundamental human rights of the citizens.
In employing the country level coordination, the country has seen itself placing a ban on travel within and outside Nigeria especially for passenger’s flights. This has ordinarily infringed on the citizen’s rights to freedom of movement as enshrined in section 41 of the CFRN 1999 and several case laws. The case of Director SSS v Agbakoba on ingress and egress ,wherein the court upheld the rights of every citizen to go in and out of the country at will, in instructive on this point. Looking at the foregoing section and the case law, it is submitted that the W.H.O framework on the country level planning and monitoring as adopted by Nigeria restricts the rights provided for in section 41 of the CFRN 1999, relying on the provision of section (45) sub (1) of the CFRN 1999, particularly in view of the fact that even persons that are not infected cannot travel out of or into the country.
The second framework adopted by Nigeria from the world health organization is the risk communication and community engagement. In adopting this policy, the Nigeria government has empowered the NCDC to forcefully pass the information across irrespective of whether the citizen desire this information or not. Beyond the unsolicited messages, the NCDC has equally embarked on a house to house campaign in a clear departure and derogation from the rights to privacy contained in section 37 of the CFRN 1999, thereby creating a situation where the citizen is compelled to suffer a derogation of his personal rights for the benefit of the greater society. The above reference case of Ezedukwa v Maduekwe reiterate the rights of the citizens to enjoy and preserve the sanctity of their home.
The principle of surveillance, rapid response team and case investigation directly affect the citizen’s rights to personal liberty, private and family life as otherwise provided in section 35 and 37 of CFRN 1999 as amended. The import of the foregoing is that citizens who demonstrates any symptom remotely similar to that of the infectious disease can be forcefully tested for infectious disease, remove from their homes and forced to live in an isolated environment and therefore breaching his constitutionally guaranteed freedom of movement. In reaching this conclusion, one is not unmindful of the fact that while the citizen is in the government enforced isolation the right to freely assemble and associate with his peers, friends and family will be greatly hindered in contravention of section 40 of the CFRN 1999. The case of Eguamwense v Amaghizemwen is instructive on this issue.
INFECTION, PREVENTION & CONTROL: The Nigerian Framework:
This framework forms the thrust of the Nigerian government policy on the COVID-19 pandemic. It is equally the policy that has infringed on fundamental human rights of the citizens, the most. This infringement cut across the right to freedom of thought and religion, the rights to move freely within Nigeria, the rights to freedom to assemble and associate with other persons, the rights to personal liberty, etc. In furtherance of the above, the Nigerian government has adopted a range of microscopic policies cutting across social distancing, restriction of movement Nationwide, prohibition of religious and social gathering, etc. as aforementioned. All these policies are directly at variance with the aforementioned constitutional provisions and if not checked, may readily escalate to riot, civil disobedience and other anti state actions. For example, the Nigerian government social distancing policy, as adopted from the World Health Organization, makes it mandatory for persons to stay at least two metres apart at all times. This therefore makes it impossible for citizens to associate freely as they would ordinarily have done if the policy was not in place.
Similarly, in furtherance of the Infection, prevention and control citizens, have been made to obtain police permit to enable them move from one point to the other. However, in Anigboro v Sea Trucks Nig. LTD the court held that Police permit has outlived its usefulness. Status requiring such permit for peaceful demonstration, procession and rallies are things of the past. Police permit is the brain child of the colonial era and ought not to remain in our statute books. Accordingly in the absence of the evidence that a person has committed a crime or that he is a threat to the general public, his movement should not be unduly restricted. In Chief F.R.A Williams V Majekodunmi, the Supreme court held that the restriction order passed in respect of the petitioner is unjustifiable.
This paper has largely dealt on the ongoing COVID-19 pandemic and its effect on the constitutionally guaranteed human rights. COVID-19 is a new infection that perhaps requires further study and a review on the way citizens ordinarily live their lives. However, government must find a balance between the protection of the general public and the fundamental human rights of the citizens. What this paper has done therefore is to analyze instances where the policies emanating from the COVID19 pandemic particularly those of the World Health Organization, as adopted by Nigeria, has infringed on the citizen’s aforementioned rights. The paper has equally examined the justification of restriction of citizens’ rights during state of emergencies. It is hoped that government all over the world will be circumspect and extremely reluctant in sacrificing the citizen’s rights on the altar of “Public good, public order, public safety, public health and state of emergency”.