By Ebun-Olu Adegboruwa, SAN
Against all odds, the COVID 19 lockdown has now been extended by the President, without first codifying the process of its enforcement, from the many suggestions proffered from various quarters.
The truth is that when a policy is impracticable, even though it may be desirable and expedient, compliance becomes impossible. For a long time now, the Southern States have retained an odious law called Bigamy, which is the crime of marrying while one has a spouse still living. Of course it could not be enforced, first being anti-culture and secondly being a piece of oppressive legislation inherited from Britain.
For you to have two husbands under such law, you have to have married both of them under the law, otherwise one will be the legal husband whilst the other will be the strange man. So, no matter the threat we put across to people, the circumstances of Nigeria do not permit a lockdown for too long a time.
Just how will the people cope with hunger and famine? Presently, the security system is overwhelmed, with insurgency on one hand, armed banditry on the other and now the enforcement of COVID 19 lockdown.
In several of my interventions, I had suggested to the President to explore the window of Section 305 (3) (d) of the Constitution, which permits the President to declare a state of emergency in any part of Nigeria through an instrument published in the official gazette, when “there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community.”
The COVID 19 pandemic qualifies as an imminent danger, a disaster and a natural calamity. The President should have explored this window for his declaration, and in that wise involve the National Assembly, being the lawful representatives of the people.
Where the President declares a state of emergency under section 305, he must transmit a copy of the official gazette to the National Assembly to pass a resolution for its approval or rejection. Such declaration will cease to have effect if after two days of the National Assembly being in session or after ten days of it being out of session, it is not approved by the National Assembly through a resolution.
The sanction of the National Assembly would have robed the President’s action with some legitimacy and then create the platform for compliance and enforcement.
There is an urgent need for a uniform system of response to the events unfolding from the COVID 19 saga, especially as it relates to the lockdown, movement restriction and their enforcement.
In Ebonyi State for instance, the governor gave an order that anyone who escapes from the isolation center should be shot. You very well know what the policeman who shoots his enemy would say, that he is suspected to be a COVID 19 person.
In Rivers State, the governor declared war on an aviation company for daring to fly expatriates into the State without due approval and before you could say Jack, two pilots are presently rotting away in prison. The office of the company has since been sealed up.
This is leading towards some crisis in the aviation sector as fellow pilots have threatened to boycott all flights to Port-Harcourt. In Kaduna State, five persons were shot dead on account of alleged violation of the stay at home order of the governor, for which no valid authority has been proffered to empower the governor to so act.
Indeed, in that same State, two pastors were arrested and are presently facing prosecution for opening their churches to conduct service. Is this the best way to respond to this crisis?
Certainly not. I do appreciate the enormity of the present challenge confronting us, but we have the means to do things right, through the deployment of technology, to engage the legislatures to do the needful.
The case of Lagos State is more intriguing. By the last count, not less than 200 persons were captured from the streets whilst jogging to keep fit. They were hurriedly arraigned before a mobile court and sentenced to various fines and terms of community services, in breach of their constitutional rights.
At least it is stated in section 36 (6) (c) that “every person who is charged with a criminal offence shall be entitled to defend himself in person or by a legal practitioner of his own choice”. In the case of the street joggers, they were not even given the opportunity to hire any counsel, as they were all compelled to “plead guilty” and agree to pay a fine. People’s fate became a revenue generation formula!
How unfortunate can citizens be, when you are locked down without money, without food, left to face boredom and depression, accumulating health challenges from obesity and a sedentary lifestyle, then you get jailed for attempting to keep fit. One of the joggers who had a heart condition narrated that he was acting upon his doctor’s advice to keep fit by walking around but he was nonetheless arrested and charged.
The police would later claim that they were implementing the COVID 19 Regulation signed by the President, which required that all persons must stay at home, in one spot, inside the house, till God knows when! We will surely still experience more negative responses by the security agencies, as we tag along. And it all boils down to the absence of a uniform legislation that is codified for all of us to run with.
I verily believe that we cannot take away the fundamental rights of citizens through executive proclamations made on the altar of some exigency or self-induced necessity, as the President and the Governors had enough time since COVID 19 broke out in 2019, to have taken all reasonable steps within the law, to address it.
The Quarantine Act cannot be utilized to authorize a single individual to have power of life and death over the citizens of his country, no matter the exigency relied upon for such absolute power. I must state that I am not opposed to the steps taken by the President and some Governors, to address the COVID 19 pandemic. I align myself totally with these measures for the safeguard of citizens.
However, my primary concern is not to resort to a violation of the Constitution under the guise of exigency, as that could well be a dangerous signal for perpetrating illegality, even in the time of peace. Quarantine is listed as Item 54 in the Exclusive Legislative List of the Constitution, which gives the President the good opportunity to partner with the National Assembly to come up with a workable arrangement that will birth a valid COVID 19 legislation, which the States can run with through their various Houses of Assembly. That is the way to go.
Now, some States claimed to have locked their borders with other States, even when the Constitution states the contrary. Under and by virtue of section 8 (2) of the Constitution, boundary matters are within the exclusive purview of the National Assembly and it is beyond any State Governor to purport to restrict the movement of citizens under the guise of containing Coronavirus.
Section 41 which grants the freedom of movement states clearly that it is movement in any part of Nigeria. States like Kogi serve as entry points to other States for instance, and the governor of such a State cannot claim to stop citizens from using Kogi State to access other States, as that will offend section 41 of the Constitution.
The Corona law has been tested in Lagos State, with Mrs Funke Akindele and her husband, who were arrested and charged to court for violating the COVID 19 Regulations made by the Governor of Lagos State on March 27, 2020 and the one made by the President on March 30, 2020.
Now, this confirms the absurdity of the Corona laws, as a citizen cannot be successfully prosecuted for violating State and Federal offences at the same time. We lost the opportunity of a judicial interpretation of the Corona laws as the Akindeles pleaded guilty to the offence and were convicted summarily.
I have made a case for State pardon for the Akindeles and all the street joggers that were similarly convicted and sentenced, given that the federal government itself is decongesting the correctional centers by granting pardon to 2,600 convicts.
In the old case of Aoko v. Fagbemi, the defendant was arrested and charged to court for adultery in that she was cohabiting with a man who was not her lawful husband. She pleaded guilty and was summarily sentenced. On appeal, Chief Rotimi Williams, SAN, contended that the court had no jurisdiction to try her for an offence that was not defined and punished by law. The appeal was allowed.
I do not think that it is proper for governors to continue to issue orders and directives against citizens in breach of their fundamental rights, without first adopting a procedure that will codify such directives through the legislature. It will be tending towards arbitrariness and dictatorship.
Whilst the lockdown remains with us through the instruments of executive enforcement, it will be good for the various levels of government to partner with existing associations, such as the Market Women Association, the Nigerian Bar Association, etc, in order to reach their members who are in need.
The general thinking presently is that the cash transfer of the federal government is meant for ghost citizens, with no verifiable evidence of receipt by those that should benefit from it. Given the amount of money involved, it is not a fund that should be shrouded in any form of mystery at all.
If the lockdown is to persist in order to contain the spread of the COVID 19 pandemic, then the palliative measures must be meaningful, ascertainable and sustainable. It is difficult to keep a hungry man in obedience.
Adegboruwa is a Lagos based lawyer and human rights activist.