The coronavirus pandemic is amplifying two of Nigeria’s worst attributes: its flagrant violation of human rights and its utter disregard for the rule of law. President Buhari once said: “Rule of law must be subject to the supremacy of the nation’s security and national interest”. The COVID-19 emergency has provided cover for the magnification of such power abuses. Yet, as Cicero cautioned centuries ago: “Beware the leader who sets aside constitutional rules claiming the need for expediency or security”.
But this is a global issue. COVID-19 has given leaders around the world an excuse to violate human rights and the rule of law. As one senior United Nations official recently put it, “We could have a parallel epidemic of authoritarian and repressive measures following close to, if not on the heels of, a health epidemic.” That’s true. Autocrats are becoming even more autocratic as they use COVID-19 as an excuse to introduce self-serving draconian measures.
Take one egregious international example. In Hungary, the parliament passed the so-called “omnipotence” law, at the behest of the prime minister, Victor Orban, which gives him the indefinite power to rule by decree without parliamentary approval. And what’s the reason for that power grab? Well, according to one Hungarian minister: “We’re at war against the coronavirus, which depends on the ability to make quick decisions”. He might have added: And to kill or quarantine democracy!
But it’s not just autocrats, even liberal leaders have shifted towards coronavirus-induced authoritarianism. For example, In Britain, the prime minister, Boris Johnson, imposed a coronavirus lockdown on 23 March, with wide-ranging social distancing measures and draconian powers to enforce them. But he went on to describe those measures as having “immediate effect” even though the enabling legislation had only just been introduced into parliament and hadn’t become law.
To be clear, there is absolute, indisputable, need for lockdowns and social distancing to stop or slow the spread of the coronavirus. That’s scientifically and medically established. But, in a free society, both measures must meet two conditions.
In a powerful intervention, Lord Sumption, a recently retired Judge of the UK Supreme Court, rebuked the prime minister for failing to recognise that “there is a difference between the law and official instructions”. Lord Sumption recognised the seriousness of COVID-19 and the need for the government to act to save lives, but added: “Yet, we are entitled to wonder what kind of society we have become when an official can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary.”
Well, this was the same point – wasn’t it? – that some senior Nigerian lawyers made when President Buhari imposed a lockdown on Lagos, Abuja and Ogun, on 29 March, directing “the cessation of all movements” and ordering “all citizens to stay in their homes” and “all businesses and offices to be fully closed”. The lawyers, notably Femi Falana and Ebun-Olu Adegboruwa, asked what power Buhari was exercising when he issued those orders. Clearly, based on Lord Sumption’s persuasive legal argument, a common law position, President Buhari’s “orders” in his 29 March address were at best valuable as “advice”, even “strong advice”, but “neither has the slightest legal effect without statutory authority.”
Of course, President Buhari later issued the COVID-19 Regulation 2020, using powers under the Quarantine Act 1926, a colonial-era law enacted to quarantine people and areas with infectious diseases. But while the COVID-19 Regulation gives some legal effect to the president’s lockdown measures, it certainly does not give legal cover for the human rights violations by security operatives purporting to be enforcing the government’s coronavirus orders. Recently, the president urged security agencies “to deploy tact and caution in enforcing the rules”. But this goes beyond “urging” security operatives to exercise restraint, the question is: do they have the powers to violate people’s human rights and personal liberty in the first place?
To be clear, there is absolute, indisputable, need for lockdowns and social distancing to stop or slow the spread of the coronavirus. That’s scientifically and medically established. But, in a free society, both measures must meet two conditions. First, they must be based on proper statutory authority, that is, powers to impose and enforce a draconian lockdown must be explicitly conferred by legislation. Second, such measures must be proportionately and sensibly enforced. Unfortunately, both have not happened in Nigeria.
Take the legal argument first. As Lord Sumption puts it, “The ordinary rule is that a person may not be detained or deprived of his liberty without specific statutory authority”. For instance, why did the UK introduce the Coronavirus Act 2020 when it already had the Public Health (Control of Disease) Act 1984 and the Civil Contingencies Act 2004, each of which has wide-ranging enforcement powers? The answer is that neither the 1984 Act nor the 2004 statute confers specific powers to detain people at home or to do other things that the coronavirus lockdown requires. So, the UK government had to introduce the Coronavirus Act 2020 to provide specific legal cover for the new tough measures.
Several senior Nigerian lawyers have made the same point. They argue that, under the Constitution, the government can only restrict, infringe or suspend human rights either by a) declaring a state of emergency or b) introducing a specific Federal statute, both of which require the approval of the National Assembly. The truth is that neither the Quarantine Act 1926 nor the COVID-19 Regulation 2020 issued pursuant to that Act gives the government the wide-ranging powers it is now exercising to violate the human rights of Nigerians.
There are images of security operatives brutalising Nigerians on the streets. In one video on Twitter, soldiers were mercilessly clobbering someone as he kept screaming: “I’m a journalist, I’m a journalist …”. Even if he was not a journalist, such brutalisation was wrong. Recently, the Nollywood actress, Funke Akindele, and her husband, Abdulrasheed Bello, were sentenced to 14-day community service for hosting a house party in violation of the social distancing rules. The singer, Naira Marley, and a former governorship candidate, Babatunde Gbadamosi, who attended the party, were “pardoned” after they were forced to apologise for failing to “comply with the directives of Mr President” on social distancing.
So, the offence, for which Funke Akindele was given a criminal conviction, was failing to comply with the “directives” of Mr President! But to invoke Lord Sumption again: What kind of society do we live in “when an official (whether president or governor) can give orders and expect to be obeyed without any apparent legal basis, simply because it is necessary”? Why did President Buhari not enact a Coronavirus Act 2020 or declare a state of emergency? Truth is, the Quarantine Act 1926 does not confer powers to violate the human rights and personal liberty of Nigerians. If the government wants such powers, it should declare a state of emergency or enact a primary legislation that sets out such specific powers.
Which brings me to enforcement. Even if lawful, a lockdown must still be enforced proportionately. In Nigeria, a lockdown is double punishment. The vast majority are poor and live in utterly miserable conditions. Many can’t survive by staying indoors, and there are high risks of increased domestic violence. The UK’s coronavirus lockdown, a relative luxury, is achieved by “90 per cent persuasion and 10 per cent enforcement”, with maximum support system. Last week, before his hospitalisation, the prime minister wrote to every household in the UK. In the letter, he said: “I understand completely the difficulties this disruption has caused to your lives”, but added: “I urge you, please, to stay at home, protect the National Health Service and save lives”.
By contrast, President Buhari hasn’t acted as the “Explainer-in-Chief”. Instead, he issued draconian lockdown orders, without proper statutory authority; then, overzealous security agencies enforce the orders by violating the human rights of Nigerians. That’s wrong. To be legitimate, the lockdown must be lawful and sensibly enforced!
Happy Easter Monday everyone!
