THE ANTI-COVID19 LOCKDOWN ORDER IN THE EYES OF LAW.
J. O. ABDURRAZZAAQ(ABU HAFS).
No man is above the law and no man is below it; nor do we ask any man’s permission when we ask him to obey it. Obedience to the law is demanded as right; not asked as favor. It is trite law that in times of war, the law fall silent. However, its due process must be followed when it is to break silence.
It is no more news that the President of Nigeria has officially declared 14 days lockdown in the Abuja, Lagos and Ogun States. It is trite law that before any declaration can be made like that of a state of emergency due process of law must be followed.
This article will go a long way to give the meaning of state of emergency, its procedure and the constitutionality of the President declaration.
Meaning of State of Emergency Generally, it has been defined by the Chambers 20th Century Dictionary as: The suspension of normal law and order procedures and the introduction of strict controls of the population, that usually involves the military, so that a crisis, revolution, etc can be contained.The 1999 Constitution does not expressly state the meaning of a state of emergency. Writing on this subject, Drs E.B Omoregie and I.O Omoruyi hold the view that there is no other textual meaning of the term ‘State of Emergency’ under the Constitution than that contained in section 45(3) of the Constitution. It is submitted that the meaning of the term can however, be gleaned from a combined reading of some salient sections of the Constitution relevant to this subject matter; particularly section 45(3) which provides thus: In this section, a period of emergency means any period during which there is in force a proclamation of a state of emergency declared by the president in exercise of the powers conferred on him under section 305 of this Constitution. A state of emergency is a situation in which a government is empowered to reform actions not be permitted to undertake. A government can declare such a state during a natural disaster, civil unrest, medical pandemic or epidemic like that of COVID19 or other biosecurity risk. Such declarations alert citizens to change their normal behaviour and orders government agencies to implement emergency plans. State of emergency can also be used as a rationale or pretext for suspending rights and freedoms guaranteed under a country’s constitution.In my earnest quest to churn out a proper definition within the context of the Constitution, one may call in aid the provisions of S.45(2) of the 1999 Constitution.
According to Drs. Omeregie and Omoruyi, A close reading of this section reveals that the term ‘state of emergency’ means such a period where certain fundamental rights guaranteed under Chapter IV of the Constitution may be derogated from or limited. It is glaring from the above definitions that a situation like this of pandemic virus falls under a situation that a state of emergency can be declared. Therefore, the president’s lockdown declaration is a declaration of a state of emergency which must concur with due process of law.
The Procedure for declaration of a state of emergency:
Does the president declaration follow the path?Alhough he said his action was based on the advice of the Federal Ministry of Health and the NCDC, though this has a place under the provision of section 305, one of the grounds upon which a declaration of a state of emergency may be predicated is where the president receives a request to do so in accordance with section 4 of the constitution. Hence he has not invoked his powers under the constitution to declare any state of emergency with due process of law.
Nigeria being a democratic nation should function under the provisions of the constitution. More over, it is unlawful for the President to take over the affairs of any state of the Federation without the express consent of the people of that State through their elected representative. It is only the Governor of the State through the House of Assembly of the state that can make any declaration concerning the people of that state.The question that we shall now address is whether a proclamation of a state of emergency necessarily displaces state government institutions/ functionaries of the affected states. Clearly, the answer to this question is in the negative. A painstaking appraisal of the 1999 Constitution reveals that there is no where that the Constitution expressly or implied provide for this. On the contrary,as Prof. Itse Sagay has pointed out: The whole tenor of section 11 of the Constitution (which is the section containing all the powers exercisable during an emergency shows that an emergency declaration is intended to be a cooperative endeavour between the federal government and state government, whose organs, governors, House of Assembly and judiciary are fully functioning. Also, section 305 of the Constitution begins with the phrase, ‘subject to the provisions of the Constitution’. The implication of this is that everything relating to the declaration of a state of emergency in this section, must be done in accordance with the Constitution.
The President declared the lockdown without citing any law that he relied upon. Constitutionally, the President could have asked the President and Speaker of the National Assembly to convene approve a state of emergency. If the President is convinced that extraordinary measures are needed to curtail Coronavirus, the proper action would have been for him to issue an instrument published in the Official Gazette of the Goverment and make a proclamation of a state of emergency in Lagos, Ogun and Abuja in line with S.305 of the constitution.
section 305 provides: (1) (2) Subject to the provisions of this Constitution the president may by instrument published in the official Gazette of the Government of the Federation issue a proclamation of a state of emergency in the Federation or any part thereof. The president shall immediately after the publication, transmit copies of the official Gazette of the Government of the federation containing the proclamation including the details of the emergency to the president of the Senate and the Speaker of the House of Representative, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the proclamation. Also germane to the issue of procedure is the provision of section 305(4) of the Constitution. This section provides for a situation where the Governor of a state may, with the sanction of a resolution supported by two-third majority of the House of Assembly, request the President to issue a proclamation of a state of emergency in the state where there is in existence any of the situations specified in subsection (3) (c), (d) and (e) of section 305 and such a situation does not extend beyond the boundaries of the state.
Arising from the above constitutional provisions, it is crystal clear that a television or radio ‘declaration’ of a state of emergency such as that done by President Buhari on the 29th of March 2020 cannot be a valid declaration of a state of emergency within the purview of section 305(1)(2) and (4) of the Constitution. From the clear wording of this section, there are basically two hurdles which the president must cross in order for there to be in place a legally valid declaration of a state of emergency.
The first being the issuance of a proclamation of a state of emergency by an instrument published in the official gazette of the government of the federation. Thereafter the second hurdle is the immediate transmission of copies of the official gazette containing the proclamation including details of the emergency to the National Assembly for approval which shall then consider the situation and decide whether or not to pass a resolution approving same. Until these two hurdles are effectively crossed, there cannot be a valid declaration of a state of emergency. The Constitution quite clearly does not make provision for a television declaration of a state of emergency before the procedure spelt out in section 305 is followed as the president has done in this case. In the light of this, it is submitted that the presidential broadcast of 29th March, 2020 can at best be said to be a statement of intent to initiate the process of a declaration of a state of emergency and not a valid declaration. Indeed, even if it is conceded that it amounts to a declaration of a state of emergency, such a declaration remains inchoate until approved by a resolution of the National Assembly. The president cannot single handedly declare a state of emergency under the 1999 Constitution. However, By virtue of S.305(6)(b) of the constitution, such proclamation shall cease to have effect if it is not approved by a resolution of the National Assembly within two days where the National Assembly is not in session or within ten days where the National is not in session. But the President did none of these procedures before made the declaration.Besides, no responsible, democratic and civilised country will thrown its constitution and laws into the dustbin in an effort to tackle a pandemic like COVID-19 the way president Buhari has done. It is undisputed that freedom of movement is a fundamental right guaranteed by S.41 of the constitution. While it is conceded that this right is not absolute. S.45 of the constitution is clear to the effect that freedom of movement can only be taken away in the manner allowed by a law that is reasonably justifiable in a democratic society. The president has not relied on any law. No law has been passed by the National Assembly to the President to lockdown Nigeria or any part thereof. He has not declared a state of emergency in Lagos , Ogun or Abuja as Jonathan did in 2013 to the northeastern states in reaction to terrorist attacks on Nigeria by Boko Haram. But he opted for his usual dictatorial way of doing things. Therefore, the President lockdown declaration in the instant matter is unconstitutional and should be void to the extent of its inconsistency.
Though I support every measure taken to curtail the coronavirus pandemic yet such must be in accordance with the law. If we allow this to stay, then, tomorrow the President may just impose a total restriction on all states of the Federation for whatever reason.
But before then, may God bless Nigeria!
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