Editorial: The Coronavirus Lockdown and Matters Arising

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As at the last count, the Nigerian Centre for Disease Control (NCDC) confirmed 111 cases of the deadly Coronavirus in Nigeria. Compared to the statistics in many countries, this figure is low but it is rapidly rising. In the absence of a cure, the best weapon remains prevention. Social distancing to stop the virus from spreading and basic hygiene like washing of hands hold the key until scientists come up with an effective cure. In addition to rules for home isolation and quarantining, all schools have been closed down; parliament has suspended sittings. The Federal Executive Council (FEC) no longer meets. Civil servants in many states except those on essential services have been told to stay home. Mosques and churches are closed to congregational prayers and services. International flights into Nigeria are suspended. Joint Admissions and Matriculation Board (JAMB) hurriedly concluded its matriculation examinations. West African Examinations Council (WAEC) suspended its school certificate exams. The National Sports Festival was suspended. Markets in many cities have been closed. Many factories and private sector offices including banks are partially shut or closed. Many states have shut down, sending jitters across the length and breadth of our national existence. For good reason, the virus is socially distancing Nigerians, but public officials must be careful that it doesn’t disenfranchise and infringe on basic rights of citizens. Despotism is incompatible with democracy.

Make no mistake; the coronavirus otherwise called COVID-19 is already a pandemic. No country can boast of its immunity. The global economy is already bleeding fast and furious. Like in other aspects of life, time is central in the spread and control of this monster virus that has infected at least 718,685 people worldwide and killed 33,881 and counting. Nigeria had a two-month window period to learn valuable lessons and get prepared. A month before the Italian index case, the World Health Organization (WHO) warned the likes of Nigeria with weak healthcare systems that COVID-19 is a virus like none other before it. Concerned stakeholders also tabled proactive preventive measures which the federal government did not bother to consider. Clearly, the FG in its consistent negligence responded too little too late. But most worrisome is the disposition of President Muhammadu Buhari at this most critical time of unprecedented but clear and present danger.

Even as the pandemic now stares us menacingly in the face, Nigeria, unlike other countries currently ravaged by COVID-19, continues to live in denial. And unlike others that also came too late to wisdom, the presidency under Buhari has continued to care less. Across all television channels, the common feature is presidents debriefing their nations on where the virus stands and efforts at its control. Like true commanders-in-chief, they are seen talking to the people, encouraging first-line responders and preaching hope in speeches and conduct. That is real leadership. It is, therefore, a no-brainer that Nigerians are asking, where is President Buhari in all of these?

Until Sunday, March 29, when he ordered a 14-day lockdown of Abuja and Lagos and Ogun states, Buhari had not made any state of the nation’s address on the coronavirus pandemic and that is strange, though not unfamiliar because of his remarkable aloofness as he enjoys talking to Nigerians from abroad as if Nigerians were leprous. The closest Buhari has come in this matter was to launch an emergency toll-free number, 112, and have press secretaries issue releases. Granted, Buhari is not the most eloquent of men; but he is the commander-in-chief, traditionally made for times like this which demand true leadership with compassion – showing those capable or incapable of it. The president is the father of a fearful nation and what is certain is that his response so far to the coronavirus pandemic is unpresidential and unacceptable.

Yet, despite the panicky situation, Nigerians have been denied the right to hear from the one man whose voice matters and who alone can re-assure the citizens to trust the capacity of the government to save them from this killer pandemic – President Buhari. Some senators even took it upon themselves to ask Mr. President to address the nation because at times like these, the people need to hear from their leader. No leader can afford to padlock his lips at such challenging times. The primary purpose of the senate advice was to persuade the president and his handlers to unlock his lips and let him bond with the people by showing empathy and leadership. The senators were anxious to see the president do what the American president, Donald Trump and the British prime minister, Boris Johnson, and other world leaders are doing – talking to their people on a regular basis about what they are doing to save the sick and contain the disease from spreading and killing more people. These are difficult times for governments, businesses, the economy and the people. Times like these truly try committed leadership.
But Buhari failed to capture the gravity of the moment dismissing the call to address the nation by the “ranking members of our respected parliament are cheap and sensational. These are not the times for populism and cheap politics,” noted a statement by presidential spokesman, Garba Shehu.

Thankfully, in the absence of leadership at the federal level; and without any firm rules and guidelines on how to protect the population, state governors have risen up to the occasion, imposing stay-at-home orders, lockdowns and even shutdown their states against inter-state and intra-state travel. While it is worth commending all governors, and state actors who have taken proactive measures to contain the spread of the coronavirus; this governance by freelancing amid the spate of restrictions imposed on Nigerians has become the source of much controversy and anger. While there are credible voices especially within the medical community calling for the government to enforce much more draconian measures; in point of fact and law, these actions and restrictions of movement ought to have been done within the context of a national state of emergency declared by the president; without which, they violate Section 41 of the 1999 constitution (as amended), which guarantees freedom of movement.

Some governors have gone beyond locking down their states and have shut their state borders to “non-essential” traffic. Such restrictions amount to flagrant violations of the fundamental right of freedom of movement unless they are justified under a law, which conforms to the provisions of Section 45 of the 1999 constitution which spells out the circumstances under which such rights, may validly be derogated from. There seems to be an overreaction by the governors to establish barriers around their states. If left unchecked, these restrictions risk transforming Nigeria into a confederacy. The Nigerian Governors’ Forum (NGF) should rein its ignorant members by upholding the sanctity of the constitution.

Irrespective of the fact that the coronavirus pandemic has endangered public safety and warrants drastic measures to contain the spread of the virus, the rights of citizens are fundamental because they are guaranteed by the constitution and not upheld at the pleasure of the government; hence no governor can exercise his power outside the dictates of the law. The Court of Appeal in 2016 in the case of Faith Okafor vs Lagos State Government & Co; held unequivocally that an order or directive of a governor is not a law and its violation cannot attract criminal sanctions. The Constitution is clear. If there is an emergency, the proper legal step is to declare a state of emergency. None of the governors has asked the president to declare an emergency in their states. No governor has made regulations pursuant to the Quarantine Act to curb the spread of coronavirus. Therefore, those restriction orders are at best, mere advisories and threats of sanctions against violators of COVID-19 restrictions are non-sequitur.

Section 305 (4) of the Constitution empowers state governors with the approval of two-third majority of state legislatures, to ask the President to declare a state of emergency in their states. Section 8 of the 1926 Quarantine Act gives governors the authority to issue regulations to tackle emergencies like the Covid-19 pandemic. But President Buhari has neither declared a state of emergency in any State nor made regulations pursuant to the Quarantine Act. And no state legislature has enacted any law that empowers any governor to stop entry or exit from any State. Therefore the resort to executive fiat is a brazen act of illegality and unconstitutional. Section 5(2) of the 1999 constitution vests executive powers of a state in the governor and may, subject to the provisions of any law made by a state legislature, be exercised by him directly or through the Deputy Governor and Commissioners of the state government or officers in the state public service. Under section 5(3) of the constitution, the executive powers vested in a state under subsection (2) shall be so exercised as not to “impede or prejudice the exercise of the executive powers of the Federation; endanger any asset or investment of the Government of the Federation in that State; or endanger the continuance of a Federal Government in Nigeria.”
Besides, the issue of state borders falls within the scope of the National Boundary Commission (NBC) set up under the 2006 National Boundary Commission Establishment Act.  Under Section 9(1)(d) of the said Act, the Internal Boundary Technical Committee (IBTC) shall promote the development and effective management of internal boundaries (i.e. boundaries between states). Under Section 13 (J) of the said Act, State and FCT Boundary Committees shall each liaise with neighboring states to promote good inter-community relationship. Therefore, What state governors can do under Section 13 (J) of the aforementioned NBC Act is to set up control check points manned by NCDC officials and state and local government health inspectors to conduct testing and scanning of persons coming into their various states; with a view to identifying Covid-19 infected persons and quarantine them in isolation camps.

It is worth noting, and with emphasis, that the way out of this legal quagmire is for President Buhari to declare a national state of emergency and invoke the Quarantine Act of 1926, which empowers the president to issue regulations for the safety and protection of Nigerians when in the opinion of the president or state governor, there is reason to believe that there is a grave medical or other danger as a result of an infectious or contagious disease, which poses a danger to the public. No one can deny that the Coronavirus pandemic rises up to this standard. But to the extent that President Buhari has been derelict in his duties; and with no such law having yet been deployed as the basis for such restrictions, no governor in Nigeria has the power or authority to alter, restrict or encroach on the fundamental rights of citizens to peaceful assembly and free movement. If and when the world eventually overcomes this existential coronavirus plague, true leaders that rallied their troops of medics, first responders, researchers and strategists to victory for humanity will mount the podium of posterity to be decorated. Pretenders to the throne, villains that dashed hopes, and let down their people, will also have their lots cast in the dustbin of history. Let’s hear you now Mr. President; which side will you be on?