CURATIVE MEASURES & REGULATIONS BY THE NIGERIAN GOVERNMENT AMID COVID-19 OUTBREAK VIS A VIS THE FUNDAMENTAL HUMAN RIGHTS OF ITS CITIZEN AND MATTERS ARISING THEREIN.
By Oshoma A. Aduku. Esq
(International Human Right & Humanitarian Law Expert) (LLB, BL, LLM in view Europa Universität Viadrina, Germany)
The outbreak of the COVID-19 has been the topical issue amongst nations of the world for the better part of the last two months. Countries have continued to seek solutions to tackle the increasing spread of the virus which has stifled the economy world over. This has seen laws being enacted, rules and regulations made in a bid to mitigate the continued spread.In West Africa, the Nigerian government in a conscious effort to curb the spread of the virus issued a public statement on the 29th day of March 2020 detailing new regulations and measures to be followed by all her citizens as well as foreign nationals in order to curb the gradual spread of COVID-19. Prior to this, there had already existed some containment measures ranging from closure of borders, ban of flights coming from already affected countries, to the ban of large gathering of persons. In the official statement, states like Lagos, Abuja were largely affected due to exponential rate of spread and rise in infected cases. Ogun state was also affected for being in close proximity to Lagos State which has the most cases of COVID-19.
The new measures announced by the government are as follows:
1. Cessation of all movements in Lagos, FCT Abuja and Ogun state which took effect from Monday 30th of March, 2020 with everyone instructed to stay indoors.
2. Closure of all business and offices in the said states with exception of business involved in essential needs such as hospitals or related medical establishment, food processing, distribution and retail companies, petroleum distribution and retail entities, power distribution companies.
3. Suspension of passenger aircraft both commercial and private jets.
The above measures and regulations given by the government of Nigeria as seen above has to a very large extent limited the rights enjoyed by citizens of Nigeria, in this article the validity of these measures in relation to human rights law shall be examined, answering the question as to whether or not such measures are in breach of the citizen rights.
Also we shall critically look at other matters arising as a result of the measures taken such as the limited right to food, recent brutality being perpetrated by government officials which includes members of the Nigerian Army, the Nigerian Police as well as other security agencies on persons who are in breach of the new regulations. In the same vein, the attendant issues caused by the limited access to COVID-19 test centers on the part of citizens shall also be appraised.
SUMMARY OF COVID-19
COVID-19 also known as coronavirus disease according to the World Health Organization is an infection disease causing respiratory illness with symptoms such as a cough, fever and in more severe cases, difficulty in breathing. It was first identified in Wuhan China in December 2019 and has since spread globally with over 1 million cases around the globe with an increase on a daily basis and resulting in 53,000 deaths, although as at today being the 3rd of April, 2020 more that 200,000 persons have recovered. The virus spreads through close contact and also by cough or sneeze of persons affected. The World Health Organisation has declared the outbreak a Public Health Emergency of International concern.
HUMAN RIGHTS ISSUES
Human Rights are body of rules ensuring that every human being lives a dignified life. These rights range from civil and political rights to economic, social and cultural rights. Many international treaties have provided for these said rights such as the International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) amongst many others within the international framework. Also, regionally in Africa, there is the African charter on Humans and Peoples Rights. All of the above mentioned treaties have been ratified by Nigeria with some of their articles domesticated into the Nigerian Constitution, as a result of this Nigeria as a State is bound by the laws and must do all in ensuring it adheres to the principles or rights contained in the treaties in order to promote and protect human and people’s rights and in cases of violation, citizens should have access to judicial remedies and compensation.
ANALYSIS OF THE HUMAN RIGHTS INVOVLED
Firstly, it is without doubt that the closure of borders, ban of flights from and to affected countries, total lockdown of some states and suspension of passenger aircraft both commercial and private jets all directly affect citizens right of movement as contained in the various international treaties and laws. Article 12 of the ICCPR clearly states that every one lawfully within a territory of a state shall have liberty of movement and free to leave any country, including his own. The above has also been replicated in article 12 of the African Charter on Human and People Rights. Similarly, Chapter III, section 26 of the 1999 Constitution of Nigeria is decisive on this subject. However, all of these laws provides for the derogation of the right when faced with a task to promote national security, public order, public health or morals. Thus, considering the fact that COVID-19 has already being declared a pandemic by the World Health Organization, its grave worldwide health implications owing to its exponential spread, it is clear that it poses serious danger to national security and public health and as such restriction of movement by the Nigerian government is much in line with the principle of Human rights. Also, the power imbued on the government to make rules and regulations as to the restriction of movement of citizens as has been done in some part of the country does not by extension affect other obligations of the government under the international and domestic laws except where permitted by the law. This shall be considered subsequently when analyzing matters arising as a result of the measures taken by the government of Nigeria.
Secondly, the ban on large gatherings affects the right to peaceful assembly and to a large extent the right to freedom of religion, this is justified by the internationally appraised practices and laws that stipulate that citizens be allowed either in group or individually to manifest their religion. It is clearly seen that the restriction of movement and ban of large gatherings has led to the inability of persons to attend church services or mosques among others, thus affecting the human rights they hold not just as citizens but by virtue of their being humans. Article 18 of the ICCPR provides for the right to freedom of religion and to manifest same in their community with other citizens, also Article 21 of the ICCPR provides for the right to peaceful assembly of citizens, same can also be seen in article 8 and 11 of the African Charter and Section 23 and 25 of the Nigerian Constitution. Once again all laws provides for derogation and restriction of the rights in cases of national security and public health. It is without doubt that if such rights are allowed to be in force at the moment, it will invariably lead to a drastic rise and spread of COVID-19 as the virus can spread through cough, sneezing, and close contact with infected persons. Thus, the ban on gatherings at the moment is indeed necessary as it falls within the purview of the government’s powers to derogate from and restrict the right to peaceful assembly and freedom to manifest ones religion in groups and thus is not inconsistent with the said rights under the International and domestic laws.
Generally, with regards to the above rights discussed, Article 4 of the ICCPR gives States the rights to take measures derogating from some rights which includes rights to movement, religion and peaceful assembly in times of public emergencies that threatens the life of the nation and the existence of which is officially proclaimed. Hence, the COVID-19 outbreak regarded currently as a pandemic with over one million cases and more than 53,000 deaths so far worldwide definitely fits into this provision as same can be classified as a public emergency which threatens the life of the nation.Nigeria currently has over 150 cases of the disease with 2 deaths so far and as such there is no gainsaying that the actions by the government limiting and derogating from some of the citizen’s rights which includes the right of movement, freedom to manifest religion in group and the right to peaceful assembly is definitely required at present to curb spread of the virus. This derogation has become necessary for the greater good as a nation is only as healthy as her citizens.
Another vital issue contained in the public statement of the Nigerian government is the closure of all business and offices in the affected states, although this directive came with exceptions for example, businesses dealing on essential needs for the daily survival of man like food suppliers, pharmacies, petrol stations amongst others were exempted. This however affects the right to work provided by Economic, Social and Cultural Rights (ESCR). Although the International Covenant on Economic, Social and Cultural Rights (ICESR) does not specifically make an express provision for derogation of the rights contained in it, thus this may mean that all rights contained in the covenant cannot be derogated in cases of emergencies. However, based on the general comments of the International Committee on ESCR and on general experience we can say that certain adjustments could be accepted in light of the extant situation. Also according to the International Labour Organization’s (ILO) decision, it is justifiable to limit labour rights (including right to work) in exceptional cases threatening the life of a nation but only if it does not amount to a clear violation of the right. This can only be adjudged on a case by case basis, for example workers are still allowed to work from home where their job designation easily accommodates it. The workers whose job specifications do not accommodate working from home however would feel the brunt owing to the limitation of their rights though justified. Article 4 of the ICESR gives an insight into this issue as it provides that such rights may be limited but however narrowed its limitation only for the purpose of promoting the general welfare in a democratic society. Hinging on this, it is without a doubt that the COVID-19 pandemic affects the welfare of the global society presently, hence we may not be far from the truth when it is stated that the various restrictions imposed by the Nigerian government is targeted towards promoting the general welfare of her people. Also, it could be argued that the limitation or derogation from right to movement as contained in civil and political rights can have impact on some social and economic rights which includes rights to work, in the sense that if your movement is restricted it may be impossible for a citizen to go about his or her normal work duties, thus this creates a balance between both the civil and political rights and that of Economic Social and Cultural rights. In the same vein, it is worthy to note that other Economic Social and Cultural rights are more often regarded as right that cannot be derogated especially as it relates to the minimum standards for example, rights to food, housing and health, therefore even in times of emergencies such rights are expected to be actualized. Some regional treaties such as the Revised Social Charter of the European Union have included a derogation clause in its charter.
MATTERS ARISING AS A RESULT OF THE MEASURES TAKEN
The measures taken by the government of Nigeria has resulted in several issues that cannot be overlooked. Nigeria has a high percentage poverty rate with many of her citizens living below minimum wage and having to rely on daily menial jobs to survive. As a result of the lockdown many have been unable to feed reasonably having temporary lost their means of sustenance, this infact has led to a violation of the right to food, which is suggested to be a right that cannot be derogated especially as it relates to the minimum core obligations of the government to provide for food even in times of public emergencies. The above has even been supported by several other international laws for example, International Humanitarian Law prohibits the starvation of civilians as a method of warfare in armed conflict situations, that is, a state cannot derogate on its citizens right to food, that minimum core obligation must exist at all times. It should be noted that even in cases of extremely poor nations or times of scarce resources, the minimum core obligation to provide access to food and by extension upholding the right of citizens to food remains sacrosanct. Some authors may argue that businesses supplying and selling foods are still allowed to operate even within the lock down period hence the argument that the right to food has not been limited. It is worthy to note however that the right of food does not end only at access to food, it also extends to the fact that citizens should as a matter of right be allowed to take out jobs, operate businesses that provides them with the means of purchasing such food items. The Lockdown imposed by the Nigerian government in some states due to the COVID-19 pandemic does deprive a great number of individuals the means to survive during this period which may very well be categorized as a violation of their ESCR as its relates to the right to food.
One striking offshoot of the measures taken by the Nigerian government is the fact that it has led to the inability of many citizens to have access to medical facilities and by extension getting tested for the virus where they feel symptoms or come in contact with infected individuals. Many have also complained about the ill state of some isolation centers thus the question is asked, does this not limit the right the citizens hold as to health? This author thinks so as anything that threatens the exercise of any right known to man works to limit that right, hence the various health related bottlenecks currently does work indirectly to limit the sacrosanct right to health. As would be expected, the government may argue that testing kits for the virus are limited not just only in Nigeria but also around the world hence leaving them with no choice than to limit such rights. A critical look at Article 2(2) of the ESCR provides clearly that such rights should be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, nation or social origin or other status. It is the author’s argument that the Nigerian government is in breach of this right on the grounds that apart from the fact that only few persons have access to be tested, it would seem that these tests have been carried out on persons of some particular class and status, the elites, those at the helm of affairs and at the upper echelon of society and to an extent the middle class. It begs the question as to what the fate of the persons belonging to the lower class is. All of the above amounts to a clear breach of the right to health as contained in Article 12 of the ICESCR and Article 16 of the African Charter on Humans and Peoples Right which provides that citizens should have access to medical services and medical attention and also to do all necessary for the prevention, treatment and control of epidemic, endemic, occupational and other diseases.
Conclusively, the measures taken by the Nigerian government compelling many citizens to remain at home has so far resulted into violation of human rights by officials of security agencies such as the Police, armed forces who were given the task to ensure people comply with the directives have taken laws into their hand. The media has been agog with various news of security officials involved in punishing citizens who are in breach of the directives to stay at home, beating and causing serious physical harm and even death in a case. Article 7 of ICCPR, Article 5 of African Charter and Section 18 of the Nigerian Constitution prohibits torture, cruel, inhuman or degrading treatment or punishment. With these treaties and constitution containing express clauses stating that such rights cannot be derogated whether in normal or emergency times, it is trite to say that the actions by some government officials belonging to security agencies on citizens are clearly in breach of human rights provisions.
CONCLUSION AND RECOMMENDATIONS
Generally, the proactive measures taken by the Nigerian government in tackling the spread of the virus are well in line with human right provisions; however some of the measures could have been properly structured so as not to be in breach of some of the fundamental human rights of her citizens. Although the Nigerian government stated that due to the lockdown of some states, some palliatives were being implemented which includes funds to be transferred to citizens that are vulnerable and also some state governments declared provision of foods to the vulnerable citizens. The above palliatives are indeed thoughtful if intended to be followed through as it will bridge the gap of the citizens’ rights to food in these times of emergencies but sadly it boggles the mind how these palliatives could be actualized since the government does not have a comprehensive database containing information of her citizens, in fact, identifying those in need might be a very difficult and nearly impossible task. Again, greed and corruption being a problem in Nigeria may result in people hoarding these palliatives thus rendering such measures ineffective. If these palliatives are not handled properly with citizens remaining in hunger especially if the current pandemic situation continues for a longer period the results may very well be devastating. The purport of ESCR is to prevent anarchy and conflict, this is especially vivid because if these rights are absent (for example right to food), a lot of persons will result to conflict in order to secure their basic needs and ensure survival. One dispassionate argument is that the continuous inability of citizens to exercise their right to food over a long period of time owing to their loss of livelihood which may invariably result to starvation and death could be likened to torture and an inhumane treatment thus breaching another specific class of rights that cannot be derogated even in times of conflict as has earlier been said. Indeed, the aforementioned palliatives are necessary if the lockdown period persists, if the virus doesn’t kill people, hunger just might.Also, it is necessary that proper measures be kept in place to ensure that there are equal opportunities given to citizens in accessing medical facilities and testing kits with more isolation centers made available with proper conditions for living.
The action of government security officers on citizens breaching the lockdown directives, causing serious physical harm should forthwith be halted, a better solution would be to impose fine on those who are in breach of the directives. Many nations have taken the idea of imposing fines and with stricter countries imposing jail sentence rather than the brutality that is currently been perpetuated by the Nigerian government security officials as it amounts to a clear breach of citizens fundamental human rights.
Conclusively, while it is necessary to limit and derogate some rights during this period, it is important that same is carried out properly in ensuring that other rights are not infringed upon and even so only within acceptable limits and standards.