To limit the spread of the novel coronavirus, the Nigerian government took restrictive containment measures, with the effect of curtailing fundamental rights. These included lockdowns of various states and a cessation of social and economic activity, except those activities relating to essential services. While these measures followed existing public health advisories, they have raised significant legal, constitutional, human rights, and legitimacy issues.
The Constitution provides for the power of the President to declare an emergency, where there is imminent danger or disaster or natural calamity affecting a community, or any other public danger constituting a threat to the country. A public health emergency of COVID-19 proportions would arguably be considered an imminent danger. Declaration of an emergency in this case would require the passing of a resolution by the National Assembly after the President’s proclamation, otherwise such a proclamation would expire in 10 days.
However, the President chose a different vehicle to impose restrictions. Instead of passing a proclamation of emergency, which would have required the input of the National Assembly, he issued regulations under the Quarantine Act, a 1926 law which allows the President to declare a place within the country an “infected local area.” The President is empowered on the basis of such a declaration to make relevant regulations.
Pursuant to the COVID-19 Regulations, 2020, the president required two states – Lagos and Ogun States — and the Federal Capital Area to be locked down, and prohibited mass gatherings throughout the country.
In accordance with the Quarantine Act, states can only make regulations where the President fails to do so.
It is also important to emphasize that quarantine and labor are “exclusive matters” under the Constitution, and only the Federal Government has the authority to make laws relating to them. What this meant, in effect, was that states could not make regulations where the President had done so, and if states had already passed regulations, they ceased to have any validity.
However, some states continued to pass regulations and executive orders. These arguably unconstitutional regulations restricted entry, precluded work except “essential services,” and meted out penalties, thus violating the rights of persons to movement and to other rights. These matters have yet to be brought before the courts, thus there remains a need for clarification either in a judicial decision or in comprehensive public health law.
Initially, there was apparent public acceptance of the restrictions of the COVID-19 Regulations, signified by a high degree of compliance. But the manner of enforcement of the restrictions in several areas around the country led to reports of human rights abuses. These included killings (which at one time numbered 18, more than the number of deaths caused by the virus itself), incarceration without court orders in places where physical distancing was impossible, demolition of buildings, and deportation of young almajiris, all of which whittled away support and delegitimized the measures.
Civil and political rights have been impacted. And socio-economic rights, like the right to food, and the right to housing, although non-justiciable under Nigerian law, have also been affected by the pandemic. While the impact has been felt across all segments of Nigerian society, the country has a large informal sector and people who survive on a subsistence basis, especially in Lagos State. With a limited welfare system and poor data, the government has been unable to provide sufficient support, which has bred dissatisfaction and mistrust. The impact on the poor, victims of sexual and gender based violence, and persons with disabilities has not been measured, but there is little doubt that it is likely to be considerable. Certainly, the lack of social determinants of health – water, power supply, appropriate housing – has rendered many in the informal sector more vulnerable to difficulties in the absence of social safety nets.
Growing unrest may have been one reason for the relatively early easing of restrictions, while the country still had a high number of cases, and the curve continued to rise, rather than flatten.
Challenges to human rights and issues arising within the legal framework during the pandemic have helped provide grounds for the National Assembly to work towards the enactment of new legislation. The Bill aims to further strengthen Nigeria’s public health institute, the Nigeria Centre for Disease Control’s mandate and clarify the manner of declaring a public health emergency. However, major concerns relating to the draconian provisions of the Bill amongst other issues have emerged. Given the emerging lessons of the pandemic in Nigeria, entrenching a strong framework of human rights within proposed legislation is an imperative that cannot be ignored.
Dr. Cheluchi Onyemelukwe is an Associate Professor at Babcock University and Managing Partner at Health Ethics and Law Consulting.