By Olu Fasan
THIS is an opportune time for despots and autocrats around the world. The coronavirus or COVID-19 pandemic has given them the cover to introduce bad laws and violate human rights. They are using the crisis to grab more powers and trample upon the rule of law. Nigeria is prone to such flagrant abuses, and the coronavirus is fuelling them. So, beware!
A senior United Nations official recently said: “We could have a parallel epidemic of authoritarian and repressive measures following close to a health epidemic.” He is right. Many leaders are using combating COVID-19 as an excuse to introduce draconian measures, some self-serving. In one egregious example, the Hungarian parliament passed the so-called ‘omnipotence’ law, at the behest of the prime minister, Victor Orban, giving him the indefinite power to rule by decree without parliamentary approval. And why? Well, the official reason is: “We’re at war against the coronavirus, which depends on the ability to make quick decisions”. And kill democracy!
But it’s not just autocrats that are becoming even more autocratic. Some liberal leaders have tended towards authoritarianism. In Britain, the prime minister, Boris Johnson (I wish him speedy recovery from his COVID-19 illness), imposed a coronavirus lockdown, with wide-ranging draconian “stay-at-home” measures, and described those measures as having “immediate effect” even though the enabling legislation had only just been introduced into parliament and hadn’t become law. In a powerful intervention, Lord Sumption, a recently retired Judge of the UK Supreme Court, rebuked the prime minister for failing to recognise that “there is a difference between the law and official instructions”. Lord Sumption recognised the seriousness of COVID-19 and the need for the government to act to save lives, but added: “Yet, we are entitled to wonder what kind of society we have become when an official can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary.”
Now, you will recall, that was exactly the point some senior Nigerian lawyers made when President Muhammadu Buhari imposed a lockdown on Lagos, Ogun and Abuja in his March 29 broadcast. The lawyers, notably Femi Falana and Ebun-Olu Adegboruwa, asked President Buhari what power he was exercising when he directed “the cessation of all movements” and ordered “all citizens to stay in their homes”. Surely, based on Lord Sumption’s persuasive legal argument, a common law position, President Buhari’s “orders” in his March 29 address were mere “advice”, even “strong advice”, but “neither has the slightest legal effect without statutory authority.”
Well, President Buhari subsequently issued the COVID-19 Regulation 2020, using powers under the Quarantine Act 1926. But while the Regulation gives some legal effect to the president’s lockdown measures, it certainly does not give legal cover for the human rights violations by security operatives purporting to be enforcing the government’s coronavirus orders.
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Recently, the president urged the security agencies “to deploy tact and caution in enforcing the rules”. But this goes beyond “urging” security operatives to exercise restraint, the question is: Do they have the powers to violate people’s human rights and personal liberty in the first place?
To be sure, enforcing coronavirus lockdowns, particularly social distancing rules, requires draconian powers. But such powers must be explicitly conferred by legislation. As Lord Sumption puts it, “The ordinary rule is that a person may not be detained or deprived of his liberty without specific statutory authority”. For instance, before the UK introduced the Coronavirus Act 2020, there were the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004, both with wide-ranging enforcement powers. But neither the 1984 Act nor the 2004 legislation confers specific powers to detain people at home or to do other things that the coronavirus lockdown requires. So, the UK government had to introduce the Coronavirus Act 2020 to provide legal cover for the new tough measures.
Several senior Nigerian lawyers have made the same point, namely: that, under the Constitution, the government can only restrict, infringe or suspend certain human rights either by a) declaring a state of emergency or b) introducing a Federal statute, both of which requires the approval of the National Assembly. The truth is that neither the Quarantine Act 1926 nor the COVID-19 Regulation 2020 issued pursuant to that Act gives the government the wide-ranging powers it is now exercising to violate the human rights of Nigerians.
Which raises the question: Why did President Buhari not enact a Coronavirus Act 2020? Using the COVID-19 Regulation to implement draconian enforcement of the lockdown measures, as we have seen in Lagos and Abuja, is either incompetence or utter disregard for the rule of law or both. Surely, Funke Akindele-Bello, the Nollywood actress, and her husband, Abdulrasheed Bello, do not deserve a criminal record, which is what their sentence of 14-day community service amounts to, for hosting a house party in violation of the social distancing rules. The Quarantine Act 1926 does not confer powers to destroy people’s personal liberty and sociability. If the government wants such powers, it should declare a state of emergency or enact a primary legislation that sets out such specific powers.
Let’s face it, a lockdown in Nigeria is like double punishment for the vast majority of Nigerians, who are poor and live in absolutely miserable conditions. That’s bad enough. But to enforce such rules heavy-handedly, with soldiers or the police brutalising citizens, is beyond the pale. And to do so without a state of emergency or proper statutory authority is utter violation of the rule of law.
But the Buhari government has no truck with the rule of law. After all, as President Buhari once said, “Rule of law must be subject to the supremacy of the nation’s security and national interest”. But here’s Cicero’s immortal advice: “Beware the leader who sets aside constitutional rules claiming the need for expediency or security”. So, heed Cicero. Beware of attempts to use COVID-19 to increase abuse of power in Nigeria.