By Victoria Ibezim-Ohaeri
The Nigerian government is invoking the emergency doctrine in Section 45 of Nigerian Constitution to justify restrictions and measures to combat the pandemic.
This policy brief extensively analyses the Nigerian government’s COVID-19 containment measures, and makes the following observations:
Summary of observations:
- Nothing demonstrates the tensions between rights and containment measures during health emergencies more than the blanket recommendation for the public to avoid mass gatherings and close
contacts with people. Any State invoking Section 45 of Nigerian Constitution to justify derogation from constitutionally-protected guarantees must comply with rigorous due process provisions relating to proportionality, notification of derogation measures, exclusion of the non-derogable provisions, nondiscrimination, temporariness of exceptional measures and consistency of those measures with the
state’s existing obligations under international human rights law.
- Certainly, the COVID-19 pandemic fits within the definition of “a public emergency which threatens the
life of the nation” entitling the Nigerian State to invoke derogation measures. The federal government has yet to declare a state of emergency, but have gone ahead to implement measures that curtail rights
and freedoms, putting a big question mark on the legality of governmental actions. Declaring a state of emergency connotes that the rights-derogating measures are temporary and limited to the extent strictly required by the exigencies of the situation.
- As of March 26, 2020, Nigeria has reportedly conducted a total of 178 COVID-19 tests compared to South
Africa’s 15,500 tests over the same period. Low testing figures, compounded by the lack of adequate databases for contact details, has forced the government to trace suspected patients primarily through
public appeals. Low response to public appeals is probably prompting the proposal to use the police and the military to enhance contact-tracing. The use of coercive action should be discouraged because of the potential to instil fear and anxiety, including social stigma.
- While global borders remain shut, high-profile infected persons cannot travel abroad as they used to, and have to fall back on the health facilities abandoned for decades to rot and under-perform.
While massive healthcare reforms are anticipated in the long term, the risk of preferential treatment for high-profile infectees looms large. Substantiated media reports reveal cases of alleged preferential
treatment for foreign nationals and high-profile patients. These patterns fuel fears that COVID-19 response measures may perpetuate inequalities in access to health care in critical times like this. Urgent
steps must be taken to restore public confidence in the health systems by ensuring all persons— irrespective of their social and economic background, identity, sex, religion, ethnic group, sexual identity—have equal access to healthcare.
- The disease-containment approaches adopted across the country especially by state governors, reinforces fears of deliberate governmental clampdowns on civic freedoms using COVID-19 as an excuse.
Documentation of these arrests and detentions of citizens on a digital database (closingspaces.org) revealed over 279 cases of many citizens being targeted and punished by state actors for various flimsyor no reason at all.
- There is ample evidence that the pandemic may trigger states to enact a wave of restrictive legislations that shrink the civic space. The Lagos State Emergency Coronavirus Pandemic Bill 2020, sponsored by
Speaker Mudashiru Obasa, scaled the first, second and third readings and eventual passage at lightning speed. There was little or no opportunity to engage the public or the broad spectrum of stakeholders that may be affected by the proposed law.
- The right to move about freely throughout Nigeria and to reside in any part of Nigeria is a constitutionally protected right. (Section 41). Interstate state border closures not only breach the right
to free movement, but could also hamper the rapid response initiatives to contain virus spread, including the delivery of essential food supplies, medical, humanitarian and surveillance services.
- Closure of state waterways, air and land borders, fall within the realm of federal question jurisdiction.
Asthe above make clear, various state governors are invoking the doctrine of necessity, exercising powers ungranted by the constitution in the name of containing the spread of corona virus.
The approaches adopted across the country especially by state governors, reinforces fears of deliberate governmental clampdowns on civic freedoms using COVID-19 as an excuse.
- On 24 March, 2020, the Nigerian Presidency barred certain media houses from covering its activities.
The actions were reportedly taken to contain the spread of COVID-19. The ban which will last for a yet-to-be specified period, will limit the ability of journalists to accurately cover and report presidential initiatives to defeat COVID-19. The ban represents a threat to press freedom, prompting stakeholders to warn that
the pandemic should not be a ‘time for unnecessary pettiness, victimization … (and adoption of measures) completely at variance with national interest.’
Victoria Ibezim-Ohaeri is the Executive Director, Spaces-4-Change