By Salihu Mohammad Lukman
Since the declaration of lockdown of Abuja, Lagos and Abeokuta by President Muhammadu Buhari GCFR, which commenced on Tuesday, March 31, 2020, there has been some debate bordering on what is legally permissible under the 1999 Nigerian Constitution as amended. Immediately following the speech of President Buhari on Sunday, March 29, 2020 announcing the lockdown of the three cities among other measures decided by the Federal Government to contain the spread of Covid-19 virus, Mr. Ebun-olu Adegborua SAN argued that the President is required to “invoke his powers under the Constitution to declare state of emergency, which must be approved by the National Assembly.”
Mr. Adegboruwa’s position was endorsed by many activist lawyers, including Mr. Femi Falana SAN who argued that “Presidential Order not enforceable without legal backing.” The Attorney-General and Minister of Justice, Mr. Abubakar Malami SAN clarified that the order is part of a national quarantine measure on the advice of Federal Ministry of Health and National Centre for Disease Control (NCDC) as provided under the Quarantine Act 1990 CAP 384 LFN. The position of Mr. Malami was further reiterated by the Vice President, Prof. Yemi Osinbajo GCON, who is also a Senior Advocate of Nigeria. Mr. Adegboruwa however insisted that the “Quarantine Act has no provision for restriction of the movement of any citizen” arguing that the “act is meant for the isolation, care and treatment of victims of infectious diseases simpliciter, for the purpose of isolating them away from interacting with other members of the public, generally and that it should not be twisted to restrain the uninfected.”
What is the objective of this debate? Is it to strengthen the capacity of our democracy to respond to emergency situations, especially when human life is at great risk on accounts of the outbreak of diseases? Or is it to simply show some legal muscles based on which the actions of the government are delegitimised? How else could government isolate, care and treat victims of Covid-19 in these cities given the scientific evidence that you could be carrier without showing any sign of symptoms? In other word, everybody could be a carrier.
Whether lockdown is desirable and the best in the circumstance is immaterial, world appear to be the substance of the legal arguments being championed by Messrs. Adegboruwa, Falana, et al. All that is the issue around the debate of what should be the legal requirement for the lockdown of these cities with higher vulnerability to Covid-19 virus is not whether the lockdown is right. In fact, Messrs. Adegboruwa, Falana and virtually all the lawyers expressing reservations about the legality or otherwise of the lockdown as announced by the President are in agreement that there should be lockdown. Their grouse is simply that the President should seek for the approval of the National Assembly as provided under the Constitution.
Prof. Bonnie Honig, John Hopkins University scholar, Canadian and American feminist and legal theorist specialising in democratic theory, in her 2009 book Emergency Politics: Paradox, Law, Democracy argued that “the current focus on the question of what we are legitimately allowed to do in response to emergency, while important, tends to privilege the moment of decision and obscure its also important aftermath. It tends to focus attention on the moment of emergency and not on the afterlife of survival. It tends to make us feel like everything is justifiable and there can be no cause for regret when our survival is at stake.” It is as if Prof. Honig had in mind Nigeria in the age of Covid-19 and the debate about legal responses to the challenges.
The moment of decision with respect to the lockdown is the declaration by the President in his speech of Sunday, March 29, for which our legal experts and activists are contesting that it should have been referred to the National Assembly at a time when the threat of Covid-19 will not permit the National Assembly to sit. All the debate about whether the President should seek the approval of the National Assembly before declaring the lockdown are therefore simply unrealistic in the circumstance.
Without necessarily arguing that those canvassing for the declaration of state of state of emergency through the approval of the National Assembly are cheaply doing so to attract public attention, one is tempted to ask what will be their response (Messrs. Adegboruwa and Falana) if the President were to request the National Assembly to reconvene for the purpose of considering any proposal for declaration of state of emergency in this era whereby scientifically it is not advisable for any session of the National Assembly to hold? If the operative norm requires isolation and social distancing for the country to be able to contain the spread of Covid-19 virus, anybody, including Messrs. Adegboruwa and Falana, will be dishonest to canvass for any sitting of the National Assembly to enforce the issue of social distancing and isolation to contain the spread of Covid-19.
Could it be that social distancing and isolation could be achieved without lockdown? From all the arguments, it doesn’t appear this is the point of contention. One readily conclusion therefore is that the argument against the lockdown as declared by the President is on account of the lack of recognition of the emergency timeline which Covid-19 has imposed on the world. Leaders across the world are struggling to respond to this new timeline. Largely because it is a challenge that border on saving human life, citizens are required to work in partnership with governments.
In our context, working to save Nigerians from the spread of Covid-19 shouldn’t be the responsibility of government alone. It should be the responsibility everyone, especially those of us with some claims to knowledge and pro-people consciousness. If, as late Samora Machel, the first President of Mozambique has argued, ‘science and knowledge should be instrument of progress’, containing the spread of Covid-19 should require innovative application of knowledge and law. This is what the Covid-19 emergency timeline dictates. It is not about rigid applications of knowledge and laws.
To miss the reality of this, may mean being reckless. It would appear many of us, including very experienced elder statesmen such as our Nobel Laureate, Prof. Wole Soyinka, are still operating in the old activist timelines of being in opposition to government. Covid-19 doesn’t allow us the luxury of government vs citizens dichotomy. This is not in any way suggesting that government or the President should exercise absolute powers. To the extent that so far, across the world, as recommended by World Health Organisation (WHO), the three recommended best practices are testing, contact tracing and isolation, our knowledge and our laws should be deployed to compel citizens to observe isolation and social distancing. Under no circumstance should we seek to apply our knowledge and laws in manners that portends potentials to compromise the lives of citizens.
The current debate around legality are needless and only confirms Prof. Honig assertion that ‘everything is justifiable and there can be no cause for regret when our survival is at stake.’ All the energy we expend to question the legality of decisions of government to lockdown these three cities with the highest potential to spread Covid-19 virus to every part of the country may only serve to distract the attention of government from the critical issue of ensuring effective response to contain the spread of Covid-19. Rather that asking the question whether locking down Abuja, Lagos and Abeokuta is sufficient to contain the spread of Covid-19, we are seeking to undermine the government. Good enough, our state governments are responding in a way that expand the jurisdiction of the lockdown to cover virtually all parts of the country.
If in 2010, our activist lawyers, including Mr. Falana, could come up with doctrine of necessity, in the face of the refusal of late President Umaru Musa Yar’Adua to transmit a letter informing the National Assembly about his medical trip outside Nigeria based on which the then Vice President, Dr. Goodluck Jonathan could be empowered to act as President, isn’t the same principles of doctrine of necessity more urgently needed now that human life is at risk so much that we could with all certainty argue that any meeting of the National Assembly is even a potential danger? This is assuming that our constitution and our laws don’t any act of lockdown.
No need to play to the gallery. Certainly, both Messrs. Adegborunwa, Falana, Soyinka and all those criticising the current lockdown of Abuja, Lagos and Abeokuta, may have some unselfish reasons to express opposition. So long as however such opposition is not substantively disputing the efficacy of the lockdown as a strategic requirement for ensuring enforcement of isolation and social distancing in order to contain the spread of Covid-19 in the country, it simply project behavioural discrepancy, which conflict with the new emergency timeline that Covid-19 imposes on the world.
This is the time when our primary survival instinct should be about saving human life. Except if we are saying that Covid-19 is not a pandemic as declared by WHO, or we are saying that isolation and social distancing are not what is required to contain Covid-19, the debate about legality of the current lockdown is just a distraction.
Salihu Mohammad Lukman is the Director General, Progressives Governors Forum