Coronavirus: It is illegal, gross abuse for states to close entry points ― SANs
• Says coronavirus isn’t an excuse to perpetrate illegality, asks FG to invoke Quarantine Act
Following the decision two states; Rivers and Kano, to close all entry points to their states in order to stem the spread of coronavirus, the legality of their action has been questioned by many who believe it is an infringement on the rights of the people as laid down by law.
Some senior advocates while reacting to the development described the action as illegal, unconstitutional and difficult to enforce under the provisions of the law, adding that administrative pronouncements of such nature must be backed by relevant laws.
According to them, such ban or restrictions cannot be enforced without applying the provisions of the Quarantine Act and enforcing the regulations, without legal backing, would amount to an exercise in futility
Speaking on the issues, a popular rights lawyer, Femi Falana (SAN), told Nigerian Tribune that the Nigerian government will find it difficult to legally enforce the various directives given to curb the spread of COVID-19, popularly known as coronavirus, except such administrative pronouncements are backed by relevant laws.
Falana had in a statement on Thursday, stated that enforcing the regulations without legal backing would amount to an exercise in futility and had called on the President Muhammadu Buhari -led administration to invoke the Quarantine Act, with immediate effect.
According to him, “out of frustration, the Federal Government has threatened to deal with religious and political leaders who have been flouting the measures put in place to contain the coronavirus pandemic.
According to the Minister of Information, Mr Lai Mohammed, “for those who would continue to willfully flout the directives aimed at checking the spread of this disease, the long arm of the law will soon catch them. The Minister did not refer to any law or regulation that has been violated by such irresponsible leaders.
“However, while no political or religious leader should be allowed to risk the lives of the Nigerian people by disregarding measures that have been announced by the authorities, the Federal Government has itself to blame for failing to proclaim a state of emergency to deal with the ravaging COVID-19,” the rights advocate said.
Referencing a judicial authority in a decided case from the Court of Appeal, Falana noted that since the country was no longer under a military dictatorship, the due process of law must be followed in compelling Nigerians to comply with the regulations, adding that, “it is common knowledge that leaders of many countries have since invoked the provisions of relevant statutes to declare a state of emergency before imposing restriction on the locomotion of people and lockdown of towns.
“Our appeal to President Muhammadu Buhari, to proclaim a state of emergency throughout the federation pursuant to Section 305 of the Constitution of Nigeria has been ignored without any explanation. This is due to the fact that the Federal Government has failed to realise that we are no longer under the jackboots when Nigerians were sanctioned for flouting regulations which were based on the whims and caprices of military dictators.
“But under the current democratic dispensation, no authority has the power to sanction any person for an offence that is not known to law. In the case of Faith Okafor V. Lagos State Government (2014), WRN/CA/L/1106, the Court of Appeal held that the Appellant could not be arrested or prosecuted for disobeying or flouting the directive or order of the Governor of Lagos State on the restriction of movement for monthly sanitation exercise as he could only be arrested and prosecuted for an offence that is prescribed in a written law,” the Senior Advocate explained.
Speaking further, he said “having confirmed that the Presidency is on lockdown we are compelled, to call on state governors to apply the Quarantine Act which provides for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria and the transmission from Nigeria of dangerous infectious diseases. In particular, state governors are enjoined to invoke section 8 of the Act which empowers them to make such declarations and issue necessary regulations, to combat any infectious disease like the COVID-19.
“Once the declarations are made police officers will be in a position to enforce the provision of Section 5 of the Act which states that any person who contravenes the regulations made pursuant to the law shall be liable to a fine of N200 or imprisonment for a term of 6 months or to both. Furthermore, the attention of members of the public should be drawn to the stringent penalties prescribed by the Criminal Code and Penal Code for offences endangering life or health including reckless or negligent acts causing harm to people,” Falana concluded.
Also speaking, Yomi Alliyu (SAN), told Nigerian Tribune that it is patently unconstitutional for a state within the federation to close its borders as done by Rivers and Kano States, adding that the constitution allows that citizens move and assemble freely.
“Section 40 of the constitution entitles citizens to assemble freely whilst Section 41 allows freedom of movement of citizens without any encumbrances throughout Nigeria. Sections 47 and 90 also establish National Assembly and States Houses of Assembly respectively and Sections 90 and 100 empower them to make laws for the nation and their respective states.
“Now Section 45 of the constitution creates situations when fundamental rights could be restricted which include public safety. As at date, neither the National Assembly nor any State Houses of Assembly has passed any bill restricting these rights. Only the governors were making pronouncements restricting the constitutional rights of their citizens. This is not only wrong but constitutes a gross abuse of the constitution of the Federal Republic of Nigeria.
“If the appropriation bill could be passed overnight to allow extra-budgetary spending and the same signed by the governor, one wonders why the same cannot be extended to something that affects the lives of citizens. Heads of civilized countries like Britain did not just wake up one day and announced lockdown but rather approached the parliament for a law to back up their actions. The usual leeway of “doctrine of necessity” has been grossly abused by our leaders to infringe on the rights of citizens. You even hardly hear recourse to that in common law countries especially Britain where the principle originated,” Aliyyu said.
He emphasised that people who suffer damage by the impunities of overzealous Governors Wike and Ganduje will have a good cause of action when the pandemic virus subsides if they are alive.
On his part, Lagos based rights lawyer, Ebun-Olu Adegboruwa (SAN), said it is illegal for governors to close the borders of their states because the right to freedom of movement is guaranteed to every citizen of Nigeria under Section 41 of the 1999 Constitution and also under the African Charter on Human and People’s Rights, adding that through this fundamental right, every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part of Nigeria and no citizen of Nigeria shall be refused entry to or exit from any part of Nigeria.
According to him, “although this right is not absolute but the conditions and exceptions to derogate from it are well stated in the constitution. It will require a law properly so made, to derogate from this right. Consequently, no state governor is allowed to deny any citizen of Nigeria the right of movement into or exit from any state in Nigeria, even under emergency situations such as coronavirus. There has to be a law backing up such policy or declaration.
“Most states in Nigeria share boundary with other states such that denial of access to one state may lead to denial of access to other states. I believe that the Governors of Rivers, Kano and Kogi States are wrong to have closed their state borders to prevent people from access to or exit from these states. Coronavirus cannot be an excuse to perpetrate illegality,” Adegboruwa said.
He explained further that any governor that desires to restrict the movement of people for whatever reason should do so in accordance with the constitution and other existing laws, adding that “since Nigeria is still a federation of many states, it is totally illegal for one state to shut its borders against indigenes of other states.”