Wednesday, September 9, 2020 11:08 pm
By Collins Okeke
Nigeria recorded her first case of COVID-19 on February 27, 2020, when an Italian who returned to Lagos for work tested positive to the virus. Since then, Nigeria has recorded an increase in the number of infections, as well as fatalities. The rise in the number of infected persons led the Nigerian Government to implement regulatory measures to curb the spread of COVID-19 at both federal and state levels. This article highlights regulatory measures introduced in Nigeria in response to COVID-19. It also sets out the positive and negative impacts of these regulatory measures on human rights and the rule of law in Nigeria.
THE LAGOS STATE INFECTIOUS DISEASES (EMERGENCY PREVENTION) REGULATION 2020
The Lagos State Infectious Diseases (Emergency Prevention) Regulation 2020 was the first government regulation for COVID-19 in Nigeria. It took effect on the 27th of March, 2020. The regulation designates COVID-19 as a dangerous infectious disease, noting that it constitutes a serious and imminent threat to the public health of the people of Lagos State. It grants the Governor power to direct a potentially infectious person within Lagos State to go to a place specified for COVID-19 screening or into isolation. A potentially infectious person is defined as a person who is or may be infected or contaminated with COVID-19 and for whom there is a risk that such person may infect or contaminate other persons within the state. A potentially infectious person under the regulation is also a person who has been in an infected area within fourteen (14) days, preceding arrival into Lagos State.
The regulation grants the Governor the power to restrict movement within, into, or out of the state, particularly the movement of persons, vehicles, aircraft, and watercraft. This restriction may not apply to the transportation or movement for the purposes of procuring essential supplies, such as food, water, medical supplies and medicines, and any other essential supplies the Governor may deem necessary. The regulation grants the Governor the power to restrict or prohibit the gathering of persons without the Governor’s consent, to restrict the conduct of trade, business, and commercial activities within the state, and to order the temporary closure of markets, except those selling or manufacturing essential services.
The Governor is also empowered to prohibit the hoarding or inflation of the prices of essential goods and services and to direct such goods or services to be seized and utilized to address the supply needs of the state. A breach of the regulation is an offense, liable to a fine or imprisonment or both in accordance with existing laws. The Government of other states such as Rivers, Kaduna, Kano, and Ekiti made similar regulations initiating full or partial lockdown and put in measures to curtail the spread of the Coronavirus.
FEDERAL GOVERNMENT’S COVID-19 REGULATIONS OF 2020
On 29 March 2020, the Nigerian President, Muhammadu Buhari, addressed the nation on the Federal Government’s efforts to curtail the spread of COVID-19 within the country. In his address, he directed a cessation of all movements in Lagos State, Ogun State and the Federal Capital Territory for an initial period of fourteen (14) days. Although the cessation of movement in Ogun State was postponed until Friday, 3 April 2020, lockdown in Lagos and Abuja was ordered to commence on Monday, 30 March 2020. This lockdown was to enable the government to track the spread of COVID-19 within these areas. Citizens in these states were directed to stay at home during the lockdown. Inter-state travel within these states was restricted and all businesses and offices within these states were fully closed during the lockdown period.
Certain businesses were exempted from the lockdown restrictions particularly those providing health-related and essential services, including hospitals and related medical establishments, organisations in healthcare-related to manufacturing and distribution, as well as commercial establishments involved in food processing, distribution, retail companies, petroleum distribution, and retail entities, power generation, transmission, and distribution companies and private security companies.
Workers in telecommunication companies, broadcasting, print, and electronic media, who could prove they were unable to work from home were also exempted. Seaports in Lagos state were also exempted as well as vehicles and drivers conveying essential cargoes from the seaports to other parts of the country; cargoes were to be screened before departure by the Ports Health Authority. The President also noted the government’s drive to provide relief materials to communities affected by the restrictions.
On Monday, 30th March 2020, the President signed the Federal Government’s COVID-19 Regulation of 2020, which declared COVID-19 a dangerous infectious disease and granted a legal basis to the directives stated in the President’s address. The regulation further instituted a moratorium on loans implemented through the Bank of Industry, Bank of Agriculture, and the Nigeria Export-Import Bank. Financial and money markets were exempted from the lockdown to run skeletal services and allow Nigerians access to online banking services.
Critical staff members of the Central Bank of Nigeria, deposit money banks, the Nigeria Interbank Settlement System (NIBSS), mobile money operators, and payment solution providers were also exempted from the lockdown restriction. The lockdown was for an initial period of 14 days after which it was extended for another 14 days, then 7 days, and eventually ceased on 4th May 2020.
IMPACT OF REGULATORY MEASURES ON HUMAN RIGHTS AND THE RULE OF LAW
To limit the spread of COVID-19, the Nigerian government took restrictive containment measures, with the effect of curtailing fundamental human 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 constitutional and human rights issues which have had positive and negative impacts, some of which include:
Questions on the Constitutionality of COVID-19 Regulations
The Constitution of the Federal Republic of Nigeria 1999 (as amended) 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 Regulation, 2020, the President required two states – Lagos and Ogun — 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. Nonetheless, 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.
Violations of Human Rights
Several lockdown orders and directives were issued by the government across various states in addition to the Federal Regulations issued by the President. Law enforcement agents, such as the Police and Army were given the task of implementing the orders, directives, and regulations and were empowered to take steps to ensure the restriction of movement. However, most of the orders neither provided the procedure for enforcement nor contained specific actions to be taken by law enforcement officers to implement them.
This led to several cases of human rights abuse and infringement, as persons who were found violating the lockdown orders were mostly treated according to the whim of particular security personnel or the government. Many were killed; many were arrested and kept in congested cells while many were made to pay a fine or engage in community service before they were allowed to go. As of 14 April 2020, the National Human Rights Commission in its COVID-19 Report on Incidents of Violation of Human Rights stated that it had received 105 complaints on violation of human rights during the lockdown period from 24 out of 36 Nigerian states. The report also stated that law enforcement agents have extra-judicially executed 18 persons while enforcing the regulation at a time when the dreaded COVID-19 had killed only 11 persons. The report further showed that out of the 18
deaths, the Correctional Service was responsible for 8 deaths; the Police was responsible for 7 deaths; the Army was responsible for 2 deaths while a State Task Force on COVID-19 was responsible for 1 death. Other forms of human rights violations recorded within the period include torture, inhumane and degrading treatment, restriction of movement, unlawful arrest and detention, seizure/confiscation of properties, extortion, sexual/gender-based violence, and discrimination in the distribution of food items.
Introduction of Virtual Court Hearing
In order to efficiently address the question of delayed justice and the right to fair hearing during the pandemic, the National Judicial Council came up with guidelines on COVID-19. According to the National Judicial Council Guidelines on COVID-19, physical court hearings should be avoided as much as possible during the lockdown and must be limited only to time-bound, extremely urgent, and essential matters that may not be heard by the court remotely. According to the guidelines, the courts are to encourage and promote virtual court sittings as an alternative to physical court sessions.
The guideline further directs that all judgments, ruling, and directions may be delivered and handed down by the courts in and through remote court sittings. With the adoption of the Virtual Court system, came legal arguments as to whether court proceedings conducted using online platforms do not violate the Constitution which provides that legal proceedings must be “held in public”. In a suit filed by two states in Nigeria (Lagos and Ekiti) that had started implementing virtual court hearing, the Nigerian Supreme Court held that Virtual Court hearing is constitutional.
Decongestion of Prisons
In an attempt to reduce the exposure of persons in custodial centers across Nigeria to the COVID-19 pandemic, on the 9th of April, 2020, President Muhammadu Buhari granted pardon and clemency to 2,600 inmates of the custodial centers of the Nigerian Correctional Service (NCS). In addition to the President granting 2,600 inmates pardon, the Chief Justice of Nigeria, Justice Tanko Muhammad in a circular dated May 15, 2020, directed all the Chief Judges at both Federal and State High Courts to take urgent steps towards the decongestion of the correctional facilities (prisons). This conforms to the call by the United Nations that countries should consciously reduce the population of prison inmates since physical distancing and self-isolation in such conditions are practically impossible. A vast majority of persons in custodial centers in Nigeria are Awaiting Trial Persons (ATPs), so this is a huge step towards the decongestion of correctional facilities in the country.
Increased Reporting of Gender-Based Violence Cases
Nigeria experienced a sharp increase in gender-based violence during the COVID-19 lockdowns. According to the Inspector General of Police, Mohammed Adamu, from January – May 2020, Nigeria recorded about 717 rape incidents. The Minister for Women Affairs, Mrs. Pauline Tallen, said that the number of abuse cases against women and children had “escalated three times more”, as victims were trapped at home. This led to a public outcry against gender-based violence resulting in state governors declaring a state of emergency on sexual and gender-based violence in Nigeria. The Nigeria Governors’ Forum at its 10th COVID-19 teleconference meeting, condemned sexual and gender-based violence, saying they were committed to ensuring justice was served. It also called on its members yet to implement laws against sexual and gender-based violence to do so in order to reduce the spate of rape in the country. The governors also called on commissioners of police in their states to provide a detailed report on the actions taken to strengthen their responses to rape cases reported to them.
Increased Use of Alternatives to Imprisonment
As earlier mentioned, persons in custodial facilities are more prone to the spread of an infectious disease such as COVID-19. Therefore, apart from the decongestion steps taken by the government during the pandemic, the need to adopt other alternative sentencing arose, and this was seen in the handling of breaches of social gathering regulations during the pandemic. The Government deemed it necessary to resort to alternatives in punishing offenders. For example, by the provisions of section 8(1) (a)&(b) and 17 (1) (i) of the Lagos State Infectious Disease (Emergency prevention) Regulation 2020 and under Section 58 Public Health Law Cap P16 Laws of Lagos State, 2015, people found guilty of violating the lockdown order were issued fines and 2 hours community sentencing.
There is no doubt the COVID-19 regulations have had a significant impact on human rights and the rule of law in Nigeria. The regulations have raised constitutional questions, occasioned violations of human rights, and brought about some changes in the Judiciary and at correctional service centers. Nevertheless, it is hoped that these identified positives and negatives within Nigeria’s legal framework during the pandemic, will help provide grounds for the Nigerian National Assembly to work towards the enactment of comprehensive public health legislation. A proposed Infectious Diseases 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 and the rule of law within proposed legislation is an imperative that cannot be ignored.
–By Collins Okeke, Senior Associate, is of Olisa Agbakoba Chambers