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Are Covid-19 And Civil Liberties Mutually-Exclusive?

Introduction

The unprecedented on-going global pandemic known variously as Coronavirus or Covid-19 has tasked the capacities of health and governance systems and structures across the world. Compared to reports from other regions (Europe, the U.S. and Asia), Nigeria appears to have been spared the worst of the scourge in terms of casualties – so far. This might not remain so for long (here is hoping – praying – it does), hence the commendable initiatives by Governments at all levels to stem the tide.

But, here, ironically, lies the problem. This is because, in my view, the form which those initiatives have taken –typically involving restrictions on the size of assemblies or congregations in different fora – unwittingly impinge on certain fundamental rights or civil liberties of citizens without observing or complying with the requisite conditions which validate or justify them. Accordingly, at the risk of playing the Devil’s Advocate, I venture to draw the attention of policy-makers to what I consider to be the appropriate legal framework under which such civil liberties can be derogated from. But, first, which liberties, precisely are we talking about?

The Right to Peaceful Assembly and Worship

This civil liberty appears to be under the greatest assault from the reactions of public administrators to the virus. In virtually every State in the country, authorities have restricted gatherings of people to between 20 and 50 persons in the following scenarios:

i. Places of Worship

The ban has predictably had the greatest effect inmosques andchurches. Public reaction to this has been mixed, with reports that those that breached the restriction failed to observe any form of social distancing – a new, currently trending, epithet, that emphasizes the avoidance of close physical contact as a means of guarding against being infected by the virus.

Mosques, in particular, continued to observe congregational prayers as scheduled, including at the National Mosque, Abuja. This quickly changed, however, when news trickled in the first death from the virus(in Abuja) – coupled with the infection of the son of former Vice-President, Atiku Abubakar, also in the FCT – with the Nigeria Supreme Council for Islamic Affairs hastily directing the closure of all mosques in the capital.

ii.  The Courts

Another, predictable, area where the restrictions have been imposed is the court system. At the last count, the Chief Judges of the High Courts of Lagos, Ekiti, Anambra and Imo States have issued circulars or directives limiting the number and nature of persons and causes, respectively, which will be entertained in their jurisdictions. The common number is 20, including Counsel, parties and witnesses, whilst only the most urgent criminal cases and ex parte applications in civil cases, will be considered.

However, following calls by the Nigerian Bar Association for a total shut-down of court system across the country, the Chief Justice of Nigeria, Hon. Justice Dr. Tanko Muhammad,directed all State and Federal courts to suspend sitting for two weeks“in the first instance”, commencing from 23rd March, 2020,“except in urgent or time-bound matters”.

 iii. Elsewhere

In Rivers State, Governor Nyesom Wike (a lawyer) announced a ban on public weddings and funerals (ordinarily a function of local governments under the 4thSchedule of the Constitution). He also ordered the closure of all parks, nightclubs and cinemas in the State. This was followed by similar bans in other States, notably in the South-South and South-East. In Kano, the Governor suspended the operations of event centres. In Kaduna, the State Governor announced the suspension of the train service between Abuja and Kaduna, adding that only traders selling food and medicines would be allowed to open their shops in the State.

The Federal Government is reportedly contemplating using the Police and the Military to trace people who are believed to have had contact with those infected with the virus. Worryingly, no one is ‘immune’, as the Chief of Staff to the President, Abba Kyari, and the Governor of Bauchi State, Sen. Bala Mohammed have also contracted the virus. Lagos has imposed a lock-down in all but name, withcalls for it to be extended nation-wide. This followedthe apparent success of the adoption of such measures in China, India and Italy.

The Law

The right to peaceful assembly and worship are guaranteed in the 1999 Constitution. It provides in Sections 38 and 40, respectively,inter alia,thus:

  • “(1) Every person shall be entitled to freedom of religion, including the freedom . . . (either alone or in  community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”;
  • “Every person shall be entitled to assemble freely and associate with other persons”

These liberties are, however, not absolute, as they can be derogated from in the interest of, inter alia, public health “by any law that is reasonably justifiable in a democratic society”:Section 45 of the Constitution. It is this provision, more than any other, in my view, that justifies the aforesaid restrictions.

Unfortunately, Governments at all levels seem to be oblivious of the aforesaid conditions under which such derogation may be valid, as no such law was relied upon in any of the notices by which the restrictions were imposed. In this regard, both the Constitution and the Interpretation Act define “law”, as “a law enacted by the House of Assembly of a State”(and includes any instrument having the force of law which is made under a law”. Additionally, the latter defines “Act” as,inter alia, “an act of the National Assembly whether passed before or after the commencement of this Act”.See Sections 18(1) and37(1) of the Interpretation Act and Section 318(1) of the Constitution. From the foregoing, I believe that the aforesaidrestrictions on the right of assembly in courts, places of worship, etc., are unconstitutional and invalid.

This, however, is not the end of the matter, as Section 305 of the Constitution empowers the President (and State Governors) to declare a State of Emergency in specified circumstances, such as, inter alia, when: there is a breakdown (or danger of a breakdown) of public order and public safety in the country or any part thereof requiring extra-ordinary measures to restore peace and safety; or there is an occurrence or imminent danger or occurrence of any disaster or natural calamity which affects a community or a section of a community; any other public danger which poses a threat to the existence of the country.

Conclusion

Given the sheer size, scale and proportion of the Covid-19 pandemic, it is not rocket science to posit that it eminently qualifies as a threat to public safety and public order which requires extra-ordinary measures such as the aforementioned restrictions in order to restore peace and safety. Indeed, it would not be an exaggeration to characterise it as a calamity and a disaster – at least one waiting to happen, if it’s not properly handled. In other words, the conditions envisaged by the Constitution for a Presidential Declaration of a nation-wide State of Emergency presently exist. All it takes is the requisite will. Once that is done (that is, the Declaration), every measure necessary for containing the pandemic can then be safely deployed – and constitutionally justified.

As  back-up, the President can leverage on the provisions of Section 10(2) of the Interpretation Act, which provides that “an enactment which confers power to do an act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it”. I believe this would be far better than the present disparate, haphazard andadhoc palliatives which can legitimately be challenged for lacking the requisite constitutional/legal backing. In saying this, one should not be understood as saying that the measures are far-fetched or undesirable–far from it; they are necessary, and indeed indispensable. This is because it is axiomatic that the safety and welfare of citizens is the primary purpose of Government. Adopting them to tackle the virus should, however, not be at the expense of constitutionally-guaranteed fundamental rights.

In this regard, one can do no better than to recall the memorable words of Lord Atkin in LIVERSIDGE vs. ANDERSON (1942) A.C. 206 @ 244 where he opined that: “in this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty . . . that the judges are no respecter of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law”. To do otherwise would be to succumb to the Michiavellian mantra that the end justifies the means – which would undermine the very basis of our constitutional democracy, namely, the rule of law.

Abubakar D. Sani, Esq.

25th March, 2020

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