Sunday Ani
Following the exponential increase in the spread of the dreaded Covid-19, from less than 50 confirmed cases to over 130 confirmed cases within the last one week, President Muhammadu Buhari has taken a drastic step to contain further spread of the virus. In a nationwide broadcast at 7pm on Sunday, March 29, Buhari made a proclamation that Lagos, Ogun States and the Federal Capital Territory (FCT), would be completely locked down for 14 days, starting from 11pm on Monday, March 30.
The President said the move was aimed at preventing further spread of the virus, as well as to enable government identify, trace and isolate over 6000 persons who might have come in contact with the 131 confirmed cases.
He said: “Based on the advice of the Federal Ministry of Health and the Nigeria Centre for Disease Control (NCDC), I am directing the cessation of all movements in Lagos and the FCT for an initial period of 14 days with effect from 11pm on Monday, March 30, 2020. This restriction will also apply to Ogun State due to its proximity to Lagos and the high traffic between the two states.
“All citizens in these areas are to stay in their homes. Travel to or from other states should be postponed. All businesses and offices within these locations should be fully closed during this period.
“The governors of Lagos and Ogun states as well as the Minister of the FCT have been notified. Furthermore, heads of security and intelligence agencies have also been briefed.
“We will use this containment period to identify, trace and isolate all individuals that have come into contact with confirmed cases. We will ensure the treatment of confirmed cases while restricting further spread to other States.”
However, the president also clarified that the order does not apply to hospitals and all related medical establishments, organisations in health care related manufacturing and distribution, commercial establishments such as food processing, distribution and retail companies; petroleum distribution and retail entities, power generation, transmission and distribution companies; and private security companies.
He added that workers in telecommunication companies, broadcasters, print and electronic media staff who can prove they are unable to work from home are also exempted, even as he warned that access to the exempted establishments would be restricted and monitored.
He also stated that all seaports in Lagos shall remain operational in accordance with the guidelines earlier issued, but stressed that vehicles and drivers conveying essential cargoes from these ports to other parts of the country would be screened thoroughly before departure by the Ports Health Authority.
However, fantastic and commendable as the move appeared to be, mixed reactions have continued to trail the announcement. Nigerians from all walks of life, including lawyers, politicians, activists, entrepreneurs as well as the ordinary man on the street have all spoken for or against the president’s order. While some people agree that it is within the president’s powers to do what he did, others said he did not follow due process in doing that. Those who insist that he did not follow the constitution fear that if the president’s action is allowed to stay, that would be a bad precedent, which he or any other president in future could rely on to flagrantly flout the constitution of Nigeria. Those who hold this view advised the president and the Attorney-General of the Federation, to comply with section 305 of the constitution by informing the National Assembly within two days of the announcement so as to give a legal backing to the very robust step that the president has taken.
Those who completely align with the president’s action, argued that the pandemic is a matter of life and death and if what the president did was what could help Nigerians stay alive, there was nothing wrong with it, whether due process was followed or not. To them, it is a desperate situation that requires desperate action and that is exactly what the president has done.
However, there are others who insist that it is only the governments of Lagos and Ogun States that have the powers to do what the president did. This group fears that the president’s action may well be a pointer to the fact that Nigeria no longer operates under the rule of law but rule of men. They warned that the rule of law was preferable to the rule of men no matter how magnanimous.
They also fear that what Robert Michel said in his book, ‘The iron law of oligarchy,’ has enveloped the country. In that book, Michel said every elite that overthrew the previous elite would always create themselves in the image of the previous elite and that if society is not careful, it is going to have a more vicious group. “What is going on now is a very terrible version of the regime we thought was very bad and was voted out by all. There was no reference to any law, meaning that somebody can just wake up any day and say, ‘I restrict your movement.’ If it is the emergency power that he exercised, it must have recourse to the National Assembly or after its declaration, the National Assembly will be notified. There was nothing like that. So, we are no longer operating under the rule of law but rule of men. However, the rule of law is preferable to the rule of men no matter how magnanimous.”
Again, some other people picked holes with the president’s order because there was no mention of any form of punishment for anybody who flouts the order. To them, nobody can be arrested, and tried except in accordance with a law that is in force which prescribes clearly the offence and penalty, but the president’s declaration does not constitute a law; so, nobody can really be arrested or prosecuted for breaching that law. “Before you can restrict a person’s movement, there must be a basis and a backing for it in law. We cannot use emergency to subject ourselves to dictatorship. We support him for the measures taken but he should look for a way to give them legal backing because they are robust and commendable.”
Yet, there is also another set of Nigerians that believe the President’s action came a bit too late. They argued that if the president was proactive, he could have done what he did on Sunday since January or February, and that could have saved the country the massive hardship citizens are currently passing through. They would want to see the president being proactive rather than reactive in matters like the current case in the future.
Lawyers react
Former second vice president of the Nigeria Bar Association and civil rights activist, Monday Ubani believes that much as majority of Nigerians argue that when it concerns the issue of life and death, the constitution should be suspended to preserve lives, he belongs to the school of thought which holds that even in the face of saving lives and safeguarding property, recourse should be made to our laws. He also believes that if the president is locking down states, he would have loved a situation where in his address, he would tell specifically the provisions of the law or under what procedure he is acting. “If you see that address, there was no mention of the law or the procedure he is embarking upon. There are laws. He could have mentioned whether he is acting on the Quarantine Act or whether he is acting on the express position of the constitution on the issue of declaration of the state of emergency. So, it is coming on that angle that he can now be assessed properly whether he has complied with the law. I told you people have said that life is involved, so the law should not be talked about. But, that is not the proper procedure in democracy. That is why the constitution itself has even made provision for emergency, and said in case of this, you do this and you can inform the National Assembly later and all that. So, because of the fact that the president was not specific as to under which law or procedure he made the declaration, we will be wasting our time in criticizing him because we cannot point out exactly which law he has offended. There is also nothing wrong in saying that it was not for him to have actually made such very grave announcement because I consider that announcement as very grave without specifically pointing to the law he was acting upon,” he argued.
However, Ubani advised Nigerians to try as much as possible to obey the order, whether it is legal or not. “It was Nnamdi Azikiwe who said that it is a foolish man that argues with a man that has gun, and that it is only a tree that hears the announcement that it will be cut down tomorrow and it stays there till tomorrow,” he stated.
He also advised the president to always try as much as possible to act within the ambit of the law in most of the things he does because the constitution has actually made provisions for things like this. “We shouldn’t promote militocracy in an era where we operate democracy. The president swore to uphold the constitution and now that the constitution has made provision for cases of emergency like this, he should tell us whether he is operating under the constitution. If there is any law enacted by the National Assembly, he should also tell us that based on this law, this are the measures I am taking. If there is no law, we can also summon the House to enact a law or he can say there is no law now but this is the measure I am taking because of doctrine of necessity. You know, tell us something because it is not good to act under blanket law,” he said.
He further stressed: “If the president is allowed to begin to do that, there is nothing that makes it wrong for him to wake up tomorrow and begin to do things that are not covered by law and say after all, he is acting under state of emergency. So, what we are saying is that there must be a process and procedure for any action at any time and people who are in government must always advise government even if they don’t want to listen.”
In the same vein, another rights activist, Malachy Ugwummadu, also aligned with those who said the president should have followed the legal procedure for making such declaration. He said: “The law is very clear. The president’s action borders on the issue of human rights and the need for the legislature to participate in the process of declaration of any form of emergency, whether by way of suspending the legislature or by way of declaring the complete lockdown or abusing the liberty of Nigerians.
“But, the point is simple and that is that there is a pandemic; one that has not featured in the way it has recently presented since 1945 after the World War. So, a lot of things are novel; the virus is novel, the strategy of dealing with it is not just novel but also very complicated. There is no vaccine yet known to be a cure and the pandemic nature of it is such that it is ravaging and claiming lives in droves all across the globe. It is a desperate situation that requires desperate action and solution. Yet, our liberty is not suspended. The constitutional democracy that we practise has also not been abrogated by that.
“And the point being made is that the president is well within his right and power to consider the measures that he has taken. However, what is left undone is the constitutional mechanism by which to legitimise the process, namely that every Nigerian, either in times of peace or war, has and continue to enjoy the right to freedom of movement as guaranteed under section 41 of the 1999 constitution. “That being the case, the only circumstance in which that right can be abridged, like any other fundamental right is where the president acts pursuant to section 45 of the constitution, which allows derogation from these expressly entrenched rights. And it states that before that can happen, he needs the input of the respective state houses of assembly to promulgate laws specifically characterising the circumstance in which the rights as presently entrenched in the constitution can be derogated from. In other words, the state houses of assembly can, through majority process or whatever, pass respective laws indicating that there is a case of global emergency and that it is part of measures to restrict movement and that the only way by which lives can be preserved is to curtail the movement pending when there is a solution or the situation improves. Once that law comes on stream, it legitimises the action because that is what the constitution says.
“And once that happens, the president can therefore, on the basis of that, make proclamation. So, the horse was placed before the cart. But, by and large, we have made a very clear statement that it was well intended but poorly advised from the standpoint of the law. And this is where we keep getting confused about the quality and content of the legal advice that the president and government officials are getting.”
He also fears the consequences of not doing things according to the laid rules saying, “The fact that we have emergency does not mean we no longer practise constitutional democracy. The reason we must stick to it is that if we now proceed arbitrarily and conduct ourselves outside the constitution, it means that as events unfold, there could be more transgressions and people can begin to take laws into their hands citing Covid-19 as the basis for such arbitrariness.”
Ugwummadu argued that even if the president claims to have derived his powers from the Quarantine Act of 1926, he couldn’t have denied people the right to movement. He said: “The Quarantine Act of 1926, which was preserved in section 215 of the constitution, does not speak to the restriction of movement at all. It is a very short law that was enacted by the colonial masters to ensure that the indigenes of the captured colonies did not infect them with diseases that they had no cure for.”
Reactions from other Nigerians
The Spokesman of the Afenifere Renewal Group, Dr. Yinka Odumakin, described the process that led to the president’s lockdown of Lagos, Ogun states and the FCT as illegal, even though it was well intentioned. He stressed that if an illegality is carried out because of expediency, the same illegality would be repeated even when it is not expedient. “If indeed, the Quarantine Act he relied on is a colonial law that has no effect on our modern day, then it is not too late for the National Assembly to do the right thing by ensuring that his action complies with the law,” he said.
He lamented that the president’s lackadaisical attitude to issues of national importance was why Covid-19 is currently spreading across the country. “Our concern really is that you have been sleeping all for several weeks while Covid-19 assumes frightening dimension; and suddenly you just woke up one night, came on air and said you were shutting down major economic city like Lagos State as if you were shutting down barracks for 24 hours. “Why has he not come out all these days? He could have given a week notice for people to prepare and get themselves ready before this order. He just came out, bearing the armed forces flag on his left and the Nigerian flag on his right and start talking as if he was talking to soldiers. That is not the way things are done,” he protested.
The National President of Arewa Youth Consultative Forum, Alhaji Yerima Shettima also agreed that even though there is an emergency situation at hand, it does not mean that due process of law should be discarded. He said it takes nothing from the presidency to liaise with the state governors before taking such drastic measures. “There are processes which were not followed. One gets worried because the president cannot claim he didn’t see this coming. We had January and February to have done all of these. It is just that we have a country that always believes in reactionary step rather than proactive moves. There were signs in other countries and our government naturally could have known that we can’t shy away from it, but unfortunately, we didn’t do anything until we are cut up in the web,” he said.
He also agreed that the president could still make amends. “It can only take him 24 hours or maximum of two days for him to do the proper thing because we are in a democracy, where due process of law must be followed. Yes, the step was correct but that cannot underplay the relevance of due process. Certainly, it is not right because we are likely going to have another problem. This is not the end of it; some day, we are going to fall into more troubles but those are the issues that must be addressed. We are not asking the National Assembly to make a new law; it is just to pass a resolution,” he stated.
For the former governor of the old Kaduna State, Alhaji Balarabe Musa, Buahri is the president of Nigeria and it is within his powers to do what he has done. “He is constitutionally obligated to protect lives of Nigerians and if in an emergency situation like we have on our hands now, he feels that denying people their right to movement is the only thing that could protect their lives, I don’t see anything wrong in that,” he said.
Lamenting that by the president’s action, he has neglected other states of the federation, he said: “Where I have problem with the president’s action is his choice of Lagos, Ogun and Abuja, when the pandemic is ravaging the entire country. He is not the president of Lagos, Ogun and Abuja, but president of the Federal Republic of Nigeria. He should have made a declaration that would affect the whole country and not singling out Lagos, Ogun and Abuja. That was not good at all,” he submitted.
However, amid growing reactions trailing the president’s lock down proclamation, most of which stem from the fact that he did not point to any section of the constitution before his action, the president on Monday, March 30, signed the Covid-19 Regulations, 2020 into law. The law now declares Covid-19 a dangerous infectious disease.
A statement by the Special Adviser to the President on Media and Publicity, Femi Adesina, said Buhari signed the law in accordance with the powers conferred on him by Sections 2, 3 and 4 of the Quarantine Act (CAP Q2 LFN 2004), and all other powers enabling him in that behalf.
“The Regulations, effective March 30, 2020, also gave legal backing to the various measures outlined in the president’s national broadcast on March 29, 2020, such as restriction/cessation of movement in Lagos, FCT and Ogun State and others toward containing the spread of the pandemic in the country,” the statement said.
With the new law, those who blame the president for coming up with good measures but in a wrong way, would now sheathe their swords and allow the president’s action to stay so that the preventive war against Covid-19 could be total.