Onuora-Oguno Azubike C (LLD)
Senior Lecturer, Department of Jurisprudence and International Law
Faculty of Law, University of Ilorin, Nigeria
Recently, the world is battling a pandemic occasioned by the COVID-19 (Corona Virus). The Corona Virus, which is widely claimed to have emanated from the Chinese city of Wuhan, has caused serve hardship on the ordinary way of life of nations. Social, economic, political, academic and sporting activities have all been grounded. In response, several nations have called and enacted emergency measures to ameliorate the hardships. In a Federal State like Nigeria, both the Federal Government and the various states have enacted laws that they have relied on to restrict the movement of persons, curtail activities such as political, religious or social gathering and even economic activities. The constitutional validity of the several lockdowns is contentious. In Malawi, a court struck down the lockdown order and ordered the conduct of proper consultation and measurable plans to cater for the needs of the poor during the lockdown. In Kenya, the Bar Society is challenging the validity of such lockdown orders.
In Nigeria, there are questions on whether Federal government executive decisions in themselves can limit constitutional rights. It is argued that considering the magnitude and the exigency of the right to life that these measures are aimed at protecting, such actions may be permissible. What perhaps may ultimately result in a violation of constitutional rights would be the modus of the enforcement of such decisions.
Violations of rights
State agents, especially the security outfits, such as the Police and Military, have been deployed in enforcing the various restrictions imposed by governments. How do these agencies’ conduct themselves in the new roles occasioned by the pandemic? What is the effect of such acts on the constitutional rights of individuals? Do the acts of the state agents amount to torture and deprivation of human dignity?
In the case of Uzoukwu v. Ezeonu II, per Niki Tobi, the court held that any act or series of acts that put an individual in worrisome position or inflicts bodily harm amounts to torture. Building on the above judicial dictum, it is then incontrovertible that several actions of Nigerian security outfits contravene the constitutionally guaranteed right to freedom from torture.
The Constitution of the Federal Republic of Nigeria 1999 enshrines that no one can be subjected to torture. Furthermore, the Constitution guarantees the right to life and provides specific grounds on which the right to life may be limited. A broad reading of section 45 (1) (a) of the constitution seemingly provides an exception that enables the President in line with his powers in section 305 of the Constitution to derogate from the fundamental rights. Some of these grounds include public health and emergencies. This may perhaps justify the basis of the various restrictions on the rights to movement and association. It is, however, contended here that such order or Acts of parliament do not derogate from the right to freedom of torture and life. Section 45 (2), provides that … such measures must be reasonably justifiable. It is submitted that any acts that violate the bodily integrity and right to life of any individual is a violation of the Constitution of the Federal Republic of Nigeria.
Sadly, in at least two incidents in the response to COVID-19, the violation of human dignity, freedom from torture and extrajudicial killing have been recorded in Nigeria. This is while noting that extrajudicial killing by conventional and non-conventional security outfits has remained a menace in Nigeria. It is on record that deaths occasioned by security outfits surpass deaths occasioned by the Virus itself. In an incident in Nkpor area of Anambra State, two young men were shot dead by the Police in violation of their rights; the same situation occurred in the Warri town of Delta State. In the Abia State of Ohafia, a young man was killed by a Policeman, leading to arson by angry youths in the area. The Police authorities subsequently reported that the ‘Policeman acted under the influence of alcohol’.
Aside from the incidents of violation of the right to life, individuals have been forced to comply with orders in such manners that are not in consonance with the constitutional framework against torture and the respect of treaty obligations. In several towns, amateur videos show individuals subjected to what can best be described as inhuman and degrading treatments. Flogging, slapping and all forms of bodily pains and injuries are inflicted in the guise of enforcing government orders. The irony is that most enforcers of these regulations themselves are not properly protected with the stipulated World Health Organisation (WHO) or Nigerian Centre for Disease Control (NCDC) protective wears.
On balance, what amounts to constitutional violence are the acts of the security agents violating the right to life and freedom from torture of individuals, including through extra-judicial killings during enforcement of COVID-19.
Sadly, the Nigerian Quarantine Act and the COVID-19 Regulation order of 2020 fall short of properly prescribing or regulating the actions of the relevant agents. This, notwithstanding, it is argued that other extant laws are available to hold accountable such violations.
In conclusion, the COVID-19 Pandemic has brought severe violation of constitutionally guaranteed rights. It continues to act as a nursery for the breeding of such constitutional violations and there is an urgent need to ensure that constitutional education is embarked upon both for individuals and security agencies with a view of allowing a full understanding of the scope of the operations of the Acts within the constitutional premise. It is important that institutions established to oversee government decisions and acts invest the needed resources to identify and report excesses in the battle against the pandemic and call for accountability of those responsible.