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Illegality of forceful restriction of movement on account of environmental sanitation

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By Aare Afe Babalola

ON September 28, 2019, residents of states such as Oyo, Ekiti and Ogun will be restricted to their homes from 7.00 am to about 9.00 am or 10.00 am. The restriction, which is observed in several other states of the Federation on the last Saturday of every month, was first introduced by the military to force Nigerians to remain indoors and clean their surroundings. However, 20 years after the end of military rule, Nigerians are still stuck with this relic from our past. sanitation

SANITATION EXERCISE: Residents of Simpson Street, Ebute Metta with the Hypo Clean Up Team clearing gutters during the Hypo Team Up to Clean Up environmental exercise on World Health Day in Lagos.

It is indeed worrisome to find law enforcement agents arresting Nigerians for flouting the stay-at-home order and clamping them into detention. In several instances, some states ensure that mobile courts are on hand to try persons found to have flouted the regulations with several having fines imposed on them. I have used the word “order” advisedly as in most cases, there is no law in place empowering the government or law enforcement agencies to restrict the movement of Nigerians on days designated as environmental sanitation days. Two court decisions have settled this point.

One of the cases was instituted by Mr Ebun-Olu Adegboruwa (who in a few days to come will be deservedly conferred with the rank of Senior Advocate of Nigeria) to challenge the restriction imposed on residents of Lagos State on days set aside for environmental sanitation. This was following his arrest and detention by officials of Lagos State on allegations that he had refused to stay indoors on one of such days. He, therefore, instituted a suit before the Federal High Court wherein he prayed the court for a declaration that the monthly sanitation exercise is illegal and obnoxious.

His argument that such restriction of movement violates Article XII of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Laws of the Federation of Nigeria, 2004 was upheld by Justice Mohammed Idris who nullified the monthly environmental sanitation policy of the Lagos State government. According to the judge, there is no law in force in Lagos State by which any citizen could be kept indoors compulsorily and that the Constitution of the Federal Republic of Nigeria grants freedom of movement to every citizen.

Justice Idris held that such freedom cannot be taken away by executive proclamation, in the absence of any law to that effect. The court found no merit in the position of the state which had argued that section 41 of the 1999 Constitution permits the government to make laws that may derogate from the right to freedom of movement and that the Environmental Sanitation Law of Lagos State, 2000, is an example of such derogation.

It further argued that the practice of keeping people at home for three hours only on the last Saturdays of the month was meant to keep society and environment clean and safe, adding that there were classified exceptions to the restriction, including emergencies and ambulance services and those on essential services.

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Similarly, one Faith Okafor was arrested by officials of the Lagos State government for violating the restriction of movement order. She was arraigned before the Special Offences Court on a charge of wandering and loitering in violation of the compulsory monthly environmental sanitation exercise. She pleaded guilty and was fined the sum of N2,000.00. She, however, filed a court action against the Lagos State Government and the Attorney General of Lagos State claiming that her arrest and detention amounted to an infringement on her rights to personal liberty and freedom of movement.

The action was dismissed at the High Court of Lagos State. However, it succeeded on appeal with the Court of Appeal holding that the order on the restriction of movement was unconstitutional and illegal. The court stated as follows: “I find worrisome the contention of the respondents that the directive of the governor can be equated to a law for which criminal sanctions will lie, and a person tried and convicted for the offence of violating the directives of the governor.… I shudder at this submission which in its elastic ramification takes us back to the dark ages of the Hobbesian state of nature.

“Section 36 (12) of the 1999 Constitution provides that a person shall not be convicted for a criminal offence unless that offence is defined and the penalty, therefore, prescribed in a written law. The respondents while conceding that there is no written law restricting the movement of persons on environmental sanitation days and making it an offence argue that the restriction still remains valid having been directed by the governor. I find it shocking that the disobedience of the directive of the governor in this regard has been elevated to a crime for which criminal sanctions attach, as in the conviction of the Appellant and the fine imposed on her.”

Declaration in the absence of a written law

The court, therefore, held that the infringement on Okafor’s right to freedom of movement could not be justified under the provisions of Section 41 (2) (a) of the 1999 Constitution. The court concluded the judgment in the case by making a declaration that in the absence of a written law prescribing the same, the Lagos State Government’s directive for people in Lagos to stay at home and not move about, thereby, restricting movement of persons within the stated hours on the last Saturday of every month is unlawful, illegal and unconstitutional.

Despite the above pronouncements of the courts on the position of the law, it is worrisome that the rights of millions of Nigerians are still being infringed upon by several state governments. As stated earlier, the need to have a clean environment is of importance. However, it should not be at the expense of the rights of citizens.

As some have rightly pointed out, the problem with our society is the absence of will to enforce existing laws designed to bring about a clean environment. I recall that in times past, local government sanitation enforcement officers who used to inspect homes and businesses to ensure compliance with regulations were greatly feared. Through their efforts, a high degree of cleanliness was observed and enshrined.

Aside from the legality of the restrictions, there is also the financial implication of restricting the movement of millions of citizens. The hours spent confined in homes no doubt affect not just the local economies but also the national economy as a business would in those hours be totally shut down. Therefore, as we continue to mark the years since the enthronement of democratic rule, we must identify and do away with practices which serve only to hold us prisoners to our past. One of these is the forceful restriction of movement on the last Saturday of every month.


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