By Awa Kalu, SAN
The pandemic now referred to as ‘COVID-19’ is a very familiar situation and very little will be gained in either profiling or analyzing it.
Perhaps, it would be sufficient to acknowledge the havoc it has wrought worldwide. Nonetheless, contrary to expectations elsewhere, COVID-19 has so far not been as deleterious as it has been in other climes.
Again, it is not our intention to foray into any speculation as to why we have been so lucky in this country in that confirmed COVID-19 cases, at the time of writing, is under five hundred.
However, notwithstanding this minimal nature of the impact of the dreaded disease on our country (in terms of casualties), acute measures have been established by the Federal and State Governments to prevent the spread of the disease. The overwhelming effects of these measures have been felt nationwide to the extent that the freedom of movement enshrined in the constitution has been severely curtailed.
Thus, while the Federal Government curtailed movement in Lagos and Ogun States, as well as the Federal Capital Territory, several state governors have closed their state boundaries to prevent ingress and egress, in and out of their respective states. It is in the public domain that several legal juggernauts and heavyweights have brought their legal wizardry to bear on an examination of the legal and constitutional implications of asking able-bodied men and women to sit at home – ostensibly in their own interest.
While it cannot be doubted that our constitution allows each person the right to move freely within Nigeria, and concomitantly to exit therefrom, it can also not be in doubt that circumstances may arise which may counsel a person, acting autonomously, to curtail his own movement.
For instance, if a person falls gravely ill, he will require no extreme persuasion to sit at home or to check into a hospital even though there are persons who on religious grounds refuse to take medicine.
Similarly, a person driving on the highway would require no persuasion to truncate his journey if properly informed that an articulated vehicle had broken down and made further movement impossible; or that armed robbers were violently in operation within the next kilometre or two; or that armed herdsmen were on patrol within the precincts; or that a big tree had fallen making further movement either inconvenient or impossible. The examples can be multiplied.
The point is that these are indeed moments which call for circumspection and render active the instincts of a reasonable man for self-preservation. It is an aspect of political theory that when a majority elect a President or Governor as the case may be, what the majority has done is to completely surrender their rights to make those decisions which are not private but generally affect the electorate.
Consequently, when there is a matter so grave that it affects the generality of the public, as to imperil their health, their safety or security, can the Governor or the President not make a determination as to what is in their best interests? There is no doubt that most readers would agree that a responsible government must institute measures or take steps that would compel citizens to make themselves safe.
The inevitable question is this: must there be an enabling law or piece of legislation that will trigger the response of government in circumstances such as those brought about by the coronavirus disease?
Professor BenNwabueze (SAN) answered this question convincingly as far back as 1973 [see Constitutionalism in the Emergent States]. He said: “In all common law jurisdictions, it is an established principle that the executive law has no inherent discretionary power to act against the citizen.
As almost every executive act bears directly or indirectly upon citizens, the principle operates as a guarantee against arbitrariness in executive government. A re-affirmation of the principle in emphatic language was made by the Privy council in a case in 1931 in which the colonial Governor of Nigeria claimed an inherent power (i.e. without the authority of a law) to appoint, depose and deport chiefs.
‘As the executive,’ said Lord Atkin, delivering the judgement of the Board, ‘he [the Governor] can only act in pursuance of the powers given to him by the law. In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice.’
The learned professor further argued that: ‘Read in the light of this principle, the provision in many of the Commonwealth constitutions which define executive authority to extend to the execution and maintenance of the constitution and to all matters with respect to which the legislature has power to make laws, does not imply a power, independently of statute, to act in derogation of the rights of citizens.
The provision does unquestionably imply the vital functions of thinking out policy, which might subsequently be given expression in legislation, and the co-ordination of the various processes of government.’ In addition, the erudite professor noted that ‘It might also authorize executive action where no private right is involved, but it clearly confers no power to interfere with such rights.
The impression conveyed by the second leg of the provision that there is an independent executive power to act in all matters with respect to which the legislature has power to make laws, whether or not private rights are thereby encroached upon, is therefore incorrect.
Under the British system therefore, executive power has mostly to be conferred by statute before it can be exercised. Not only must the exercise of executive power be authorized by law, it must also keep strictly within the scope of that authority.
This means that, when there is a law upon any particular matter, the executive, just like any private person, cannot defy it or refuse to be bound by it, and it does not matter that private rights are not thereby affected. A fortiori, a subordinate officer of the government who has committed a contravention of the law cannot plead in defence that he acted upon the orders of the government.
With but few exceptions, designed largely to preserve the dignity of the office of the head of state, the government and its officers enjoy no special dispensation or immunity from the ordinary laws of the land. Nor can the executive give itself the necessary legal authority to interfere with private rights.’ Professor Nwabueze then concludes that‘So far as it can make laws at all, its power in that behalf is a derivative and subordinate one, and depends upon parliamentary authorization, revocable at any time.’”
Arguing in similar light, Ebun-Olu Adegborouwa (SAN) contends that‘.It is my humble position that no single individual (no matter his status) can and should be empowered to restrict the movement of citizens or to suspend any of their fundamental rights granted by the Constitution.
In his response to my statement on the illegality of the restriction order placed upon Lagos, Ogun and Abuja by the President, the AGF relied on the Quarantine Act as authority for movement restriction. This colonial law was simply enacted by the British officials having charge over Nigeria to protect themselves from any disease that they suspected could be dangerous from their subjects then.
Being a law enacted in 1926, it was targeted mainly at those sailing through ships and it contains nothing on those flying by air, those moving by train or motor vehicles. That law cannot find any place in our independent Nigeria, even though it is preserved by section 315 of the Constitution.’
Furthermore, Adegboruwa notes that ‘The Quarantine Act itself has no provision for the restriction of the movement of any citizen. A fundamental right expressly granted by the Constitution cannot be taken away by assumption, inference or deductions.
Section 41 (1) of the 1999 Constitution expressly donates freedom of movement to all citizens and it cannot be taken away by way of executive proclamations or regulations, as an executive regulation cannot in law take away a fundamental right granted by the Constitution.
The Quarantine Act of 1926 or 1990 or 2004, as its name and provisions connote, is meant for the isolation, care and treatment of victims of infectious diseases simpliciter, for the purpose of isolating them away from interacting with other members of the public, generally. A law enacted for the benefit of those not infected by any disease cannot and should not be twisted to restrain them.’
While we may grant that Adegboruwa’s position is clear and convincing, there are yet reasons why acts which have been done or omissions which have been made in these trying times, may be forgiven.
To that extent, the devastation so far occasioned by a dreaded virus which has incapacitated the excellent medical facilities available abroad, closed schools, churches, and mosques, eateries, gyms, cinemas, etc., paralysed economic activity, and is unrelenting in the speed at which it is spreading beyond national boundaries is undoubtedly extraordinary.
Consequently, anything, any step or any measure which proves or will prove efficacious in ameliorating the hazards of the moment must be endured and ought to be considered within the margin of what in jurisprudence, we call expediency. The age-old wise crack is that ‘what cannot be helped, must be endured’.
Accordingly, I implore fellow Nigerians to sit at home in our collective interests, but the government must make the sit-at-home order ‘palatable’. In sum, government at different levels must realise that a mandatory sit-at-home order must inflict injury to the big and small for which reason, a stimulus package(the present efforts are noted), as well as reasonable palliatives, must be worked outto compensate for these injuries.
Meanwhile, my good friend, Abubakar Malami, SAN, Attorney General of the Federation and Minister of Justice, may seize the moment and propose a comprehensive and contemporary piece of legislation which will accommodate and make provisions for incidents such as epidemics, infectious diseases, pandemics, and other emergency health situations, to address all the issues which the ravaging COVID-19 has thrown up.