Efforts of Government at containing the on-going Covid-19 pandemic have elicited and are continuing to elicit varying reactions – from the sublime to the ridiculous. For the overwhelming majority of the public, who have seen yet another layer of uncertainty added to their already buffeted lives, the disease – and the restrictions which the Government has imposed on them to contain it – is nothing short of a disaster.
Having initially observed a not-so-golden silence, the President finally reeled out the so-called Covid-19 Regulations, 2020 on the 30th of March 2020. With them, the Federal Government sought to give legal backing to the previously unco-ordinated, somewhat haphazard, measures adopted by State Governments, all of which had one thing in common – restrictions on movement, (border closures, including – incredibly – sea and air) and gatherings/assemblies.
The Regulations were issued pursuant to the Quarantine Act, Cap Q.2, LFN, 2010, a hitherto obscure, pre-independence law (it was enacted in 1926). Not a few commentators have since pooh-poohed them on this ground, with some (notably human rights advocates Femi Falana and Ebun Adegoruwa, both Senior Advocates of Nigeria), insisting that the Act is inappropriate for dealing with the pandemic and that it does not validate the restrictions – particularly those on movement. Nobel Laureate, Wole Soyinka has also chipped in, wondering whether the restrictions did not violate civil liberties; this prompted the President’s Spokesman, Garba Shehu, to remark – unkindly – that the pandemic was not fiction (the Nobel Laureate’s forte), but science!.
The Attorney-General of the Federation, Abubakar Malami, SAN and the Vice-President, Yemi Osinbajo, SAN, have (understandably) risen in defence of the Regulations and justified them on the basis of the Quarantine Act. Notwithstanding their rebuttals, at least one human rights lawyer (Inibehe Effiong, Esq.,) has vowed to challenge the Regulations in court – as soon as the restrictions are lifted, of course. This naturally leads to the question of what the Regulations prescribe. . .
The Covid-19 Regulations
Subject to specified exemptions, the Regulations:
- Prohibit all movements in Lagos and Ogun States, as well as the FCT, for an initial period of 14 days;
- Prohibit travel between the affected States (and the FCT) and other States;
- Direct the closure of all offices and businesses within the said affected States;
- Prescribe the suspension of movement of all kinds of aircraft – passenger, commercial or private jets.
Rationale for the Regulations
The President justified the Regulations on the basis of Sections 2, 3and 4 of the Quarantine Act, which provide as follows, inter alia, respectively:
- Section 2 defines “dangerous infectious disease” and “local area”, respectively, as, inter alia:
- “any disease of an infectious or contagious nature which the President may, by notice, declare to be a dangerous infectious disease within the meaning of the Act”;
- “a well-defined area, such as a local government area, a department, a canton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such areas”;
- Section 3: “The President may, by notice, declare any place whether within or without Nigeria to be an infected local area within the meaning of this Act”;
- Section 4: “The President may make Regulations for all or any of the following purposes –
- Prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria being declared to be an infected area;
- Prescribing the introduction of any dangerous infectious disease into Nigeria or any part from any place without Nigeria, whether such place is an infected local area or not;
- Preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria;
- Prescribing the powers and duties of such officers as may be charged with carrying out such Regulations;
- Generally for carrying out the purposes and provisions of the Act”.
It is pertinent to mention that, to the extent that the Regulations are subsidiary instruments (vide Section 37(1) of the Interpretation Act), they may legitimately contain different provisions for different circumstances – Section 12(1)(a) of the Interpretation Act.
What is a Quarantine?
An apparent drawback in the Act is that it does not define what a quarantine means. The word is both a noun and a verb. The Cambridge Online Dictionary defines its noun variant as: “A period of time during which an animal or person that might have a disease is kept away from other people or animals so that the disease cannot spread”. As for its meaning when used as a verb, the same medium defines it as: “To keep an animal or person away from other animals or people to prevent them from spreading a disease”.
According to another data source (Wikipedia): “The quarantining of people has historically raised questions of civil rights, especially in cases of long confinement or segregation from society, such as that of Mary Mallon (aka Typhoid Mary) in the U.S., a typhoid fever carrier who was arrested and quarantined and later spent the last 23 years of her life in medical isolation”.
Principles for Imposing Quarantines
The Quarantine Act is arguably not nuanced enough (if at all) on the parameters for ascertaining the link between a quarantine and the scope of its concomitant restrictions vis-à-vis civil liberties. However, once again, Wikipedia posits that “guidance on when and how human rights can be restricted to prevent the spread of infectious disease is found in the Siracusa Principles, a non-binding document developed by the Siracusa International Institute for Criminal Justice and Human Rights, which was adopted by the United Nations Economic & Social Council in 1984. The Siracusa Principles state that restrictions on human rights under the international covenant on civil and political rights must meet standards of legality, evidence-based necessity, proportionality and gradualism, noting that public can be used to justify limiting certain rights if the State needs to take measures ‘aimed at preventing disease or injury or providing care for the sick and injured’”.
The medium adds that “limitations on rights (such as quarantine) must be strictly necessary, meaning that they must:
- Respond to a pressing or social need (health);
- Proportionality pursue a legitimate aim (prevent the spread of infectious diseases);
- Be the
- Least restrictive means required for achieving the purpose of the limitation;
- Be provided for and carried out in accordance with the law;
- Be neither arbitrary nor discriminatory;
- Only limit rights that are within the jurisdiction of the State seeking to impose the limitations”.
Continuing, it posits that, public health ethics (also) demand that when a quarantine is imposed:
- “all restrictive actions must be well-supported by data and scientific evidence;
- All information must be made available to the public;
- All actions must be explained clearly to those whose rights are restricted and to the public; and
- All actions must be subject to regular review and reconsideration”.
Finally, the State is ethically-obligated to offer the following guarantees:
“(a) That infected people will not be threatened or abused;
(b) That basic needs such as food, water, medical care and preventive
care will be provided;
(c) That communication with loved ones and caretakers will be permitted;
(d) Constraints on freedom will be applied equally, regardless of social
(e) Patients will be compensated fairly for economic and material losses, including salary”.
An often-neglected aspect of the decision to impose a quarantine (certainly in our own experience with Covid-19) is its psychological impact on those directly affected. According to Wikipedia, such effects “include Post-Traumatic Stress Disorder – PTSD, confusion and anger”. With particular reference to the on-going pandemic, the medium quotes a medical journal (The Lancet) as follows: “Stressors included longer quarantine duration, infection fears, frustration, boredom, inadequate supplies, inadequate information, financial loss, and stigma”. The magazine then suggested that: “In situations where quarantine is deemed necessary, officials should quarantine individuals for no longer than required, provide clear rationale for quarantine and information about protocols, and ensure sufficient supplies are provided. Appeals to altruism by reminding the public about the benefits of quarantine to wider society can be favourable”.
Beyond the legalism which seems to permeate the arguments of the anti-quarantine elite, the real challenge faced by the President and his handlers, in my view, is addressing enshrined cynicism of the voiceless majority in the areas presently under quarantine – and beyond. In the face of rampant poverty, the palliative measures included in the Covid-19 Regulations (it seemed more like a speech) are perceived as not going far enough. Add to this, our culture of corruption (even in such circumstances), and it is clear that the ethical dimensions of the quarantine (any quarantine) referred to earlier cannot be over-emphasized.
Suffice it to say that the Government needs to re-focus and fine-tune its anti-Covid strategy/messaging, as the challenge posed by the pandemic is as much about its containment and reversal as public perception that the Government is on top of the situation – not merely reacting to it.