Who Says The Government Of Nigeria Is Wrong Legally To Take ‘Necessary’ Steps To Contain The Pandemic Covid-19 In The Prevailing Circumstance?! By Hameed Ajibola Jimoh Esq.

There have been some thoughts at some quarters criticizing the efforts and measures being taken by the governments of States and the Federal Government on the ground that such measures are unconstitutional and unlawful without a law backing and or supporting such measures despite the prevailing pandemic Covid-19 in the circumstance. This paper is an attempt to give a contrary view to those views shared by those individuals.

In my humble view and with due respect to those persons who criticize the government’s measures being taken to contain and or curb the prevailing Covid-19, I humbly submit that those persons are very wrong legally speaking! In fact, the government is right and correct and any of those measures taken by the government is and shall be legal and lawful as well as constitutional having regard to the constitutional ‘doctrine of necessity’! My arguments are that in the present instance, the ‘doctrine of necessity’ shall prevail and be the law that guides the government in protecting the citizens against contracting or being infected by the deadly pandemic disease.

First of all, it is my observation with due respect to those persons, that their misdirection and or misapplication had arisen from wrongly applying and interpreting the sections: 45 and 305 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- to the present circumstance which is entirely different from what those sections envisage. Section 45 (1) and (2) permits derogation of citizens’ fundamental rights/human rights thus ‘45.—(1) Nothing in sections 37, 38, 39, 40, and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society— (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons. (2) An Act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution ; but no such measures shall be taken in pursuance of any such Act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency ; Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of section 36 (8) of this Constitution. (3) In this section, a ”period of emergency” means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.’. And by section 305 of the Constitution which provides thus ‘305.—(1) Subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof. (2) The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation. (3) The President shall have power to issue a Proclamation of a state of emergency only when— (a) the Federation is at war ; (b) the Federation is in imminent danger of invasion or involvement in a state of war ; (c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security ; (d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger ; (e) there is an. occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation ; (f) there is any other public danger which clearly constitutes a threat to the existence of the Federation ; or (g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section. (4) The Governor of a State may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State. (5) The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation.(6) A Proclamation issued by the President under this section shall cease to have effect— (a) if it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation ; (b) if it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when. The National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation ; (c) after a period of six months has elapsed since it has been in force : Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period for the Proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner ; or (d) at any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House.’.

With due respect, it is my humble submission that the recent pandemic Covid-19 is ‘pandemic’ in the sense that it has become a global disease as declared by the World Health Organisation. In my humble view, the only rule of law that can be effective and relevant to deal with the present situation is the ‘doctrine of necessity’. The doctrine of necessity is defined by the Wikipedia online thus ‘The doctrine of necessity is the basis on which extra-legal actions by state actors, which are designed to restore order, are found to be constitutional. It also includes the ability of a private person to violate a law without punishment where the violation of law was necessary to prevent even worse harm. The maxim on which the doctrine is based originated in the writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of extra-legal action have been advanced by more recent legal authorities, including William Blackstone.’. It is my humble view that the doctrine of necessity has found its way into the constitutional law by virtue of section 315 of the Constitution which provides on ‘existing law’. It is no doubt that the doctrine of necessity is a common law doctrine. Section 315(1) of the Constitution provides that ‘315.—(1) Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be— (a) an Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws ; and (b) a Law made by a House of Assembly to the extent that it is a law with respect to any matter on which a House of Assembly is empowered by this Constitution to make laws.’. Furthermore, by section 315(4)(b) of the Constitution, ‘existing law’ is defined as ‘(4) In this section, the following expressions have the meanings assigned to them, respectively—(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having been passed or made before that date comes into force after that date;’. (Underlining is mine for emphasis). This in my view is to the submission that the ‘doctine of necessity’ is part of rule of law.

From the above provision, it is clear that whatever measure put in place by the government of the Federation and of the State in the circumstance of the pandemic Covid-19 is nothing but lawful and constitutional, the doctrine of necessity having been recognised constitutionally under section 315(1) and (2)(b) of the Constitution. This current circumstance is therefore in my humble view, different from those circumstances envisaged by the constitution in section 45 and 305 (supra) and perhaps, there is need for an amendment of the Constitution to cover such circumstance of the pandemic Covid-19 in the future. It is my observation that no country throughout the world had envisaged the pandemic Covid-19. It is inhuman in my humble view for anyone to expect the National Assembly and or the House of Assembly of any State to convene to hold any session in the present circumstance to pass any law having regard also to the rigidity of law making processes and the need for social- distancing as canvassed by the World Health Organisation. More so, who would be responsible where they all contract the pandemic disease as a result of having contact with one another. Majority of the top leadership of the nation are currently self-isolating themselves in the circumstance in order to be clear of the disease. It has been reported that the Bauchi State’s Governor- His Excellency, Bala Mohammed- tested positive of the virus disease! The Governor of Kaduna State- His Excellency, Nasir El-Rufai has just recently announced that he tested positive to the pandemic Covid-19! What a sad occurrence! What has happened to these victims as per their official duties?! We should as Nigerians understand that those legislators also have families for whom they are responsible! The only concern that I have and which I advise despite this situation is that the extent that those measures devised by the government must be reasonably justifiable for the purpose of dealing with the situation that exists i.e. the pandemic Covid-19 and does not mean and or encourage and or permit an abuse of human rights unjustifiably and unreasonably during this period. I also submit that the government needs not declare any state of emergency as the situation in itself justifies the governments’ measures being taken so far. I therefore advise Nigerians to allow the government to utilize its measures to contain and or curb the said disease as justifiably and reasonably necessary democratically in the circumstance.

Furthermore, every citizen has the right to sue the government for any unjustifiable and unreasonable violation of his right in the court of law having regard to the provision of section 46(1) of the Constitution and there is no limitation of law in suing even such person can sue at any time.

Finally, it is my humble submission that those who challenge the government of unlawful and constitutional measures in the circumstance of the Pandemic Covid-19 are wrong and the government is hereby advised to disregard any such distractive statements/comments emanating from those quarters and to focus on the way out of the circumstance. Nevertheless, I humbly advise the government to avoid abuse of human rights unjustifiably and unreasonably during this period. I pray that God Almighty would guide the government in finding a way out of this menace and God would continue to protect all Nigerians and the world at large! My sympathy too goes to the victims of this pandemic Covid-19! May God heal them and forgive those who are now deseased! We make better laws when we live but not when we are not alive! I advise you the reader and myself to remain safe and protected!

Email: hameed_ajibola@yahoo.com