What is “the Law”?
“The law” in the circumstances of this write-up is simply the body of customs and/or practices which a particular state or society recognizes as binding on them because they promulgated or made them to so bind them.
The making of the law or laws may also be by the governing authority in the society or state or by the people through representatives of them but subject to their final approval.
All in all, laws are made by and for a particular people or group of persons to guide their affairs in the group, state or society. By virtue of Blacks Law Dictionary 10th edition, law among other definitions means “The regime that orders human activities and relations through systematic application of force of politically organized society, or through social pressures, backed by force, in such a society”. A law is no law if it is not backed by sanctions and or punishments that will result from disobedience of the law. However, when a law is duly backed by the requisite sanction and punishment and the law gets broken without the sanction or punishment taking effect, then what will result is anarchy, lawlessness and confusion. If nothing is done to stem the tide, then, the affected society or state will in no time degenerate into oblivion, nothingness and hopelessness. In this country, we have a litany of, sometimes cacophonous, laws which are however ably led by the Grund Norm, the constitution of the Federal Republic of Nigeria 1999 (as amended). The constitution and the other laws in so far as they are not inconsistent with any provision of the constitution, ought to be obeyed for the continuity of the Nigerian state.
OUT BREAK OF COVID-19
By last year 2019, many Nigerians living in Nigeria listened and watched from the comforts of their respective homes, places of work or recreation the news of corona virus out-break in China, Europe and other parts of the World. Some took the news quite lethargically, others with levity and derision saying the usual things like “the plague would not survive in Nigeria” or that “it is not my portion”
By the 13th February 2020, Nigeria Centre for Disease Control NCDC was still pre-occupied with containing the lasa fever out break in the country and paid only lip service to Corona virus. This was evident in the statement of Dr. Kola Jinaidu, Assistant Director of NCDC when in Kaduna he spoke as a guest speaker in a one day seminar with the topic: “Global threats of Corona and Lasa virus, awareness, causes and prevention”. He mainly spoke about Lasa fever spread in 26 states of Nigeria and said little about corona virus otherwise called COVID-19.
It was by the middle of March 2020, that the Nigerian government and people were jolted out of the prevalent reverie, lethargy and listlessness over the reality of Corona virus in Nigeria. Thus, on 18th March 2020, both arms of the National Assembly authorized the president to, in a fire brigade manner, ban open worship in religious houses, and other public gatherings. What happened? Some new cases of COVID-19 were confirmed in Lagos and Abuja. The national stampede started. In Enugu, a 70 year old woman who just returned from abroad where she visited a relative was believed to have contacted corona virus. Squeamishly, health workers in a government hospital at Enugu ostensibly threw the old woman into a decrepit isolation centre and abandoned her there. Some days after, when they returned with her laboratory test result in order to announce that she tested negative, the old woman had died. A doctor said it was hypertension and typhoid that killed her. What a loss!!!
Governors of different states of Nigeria, in a state of frenzy, squeamishly started announcing closure of their respective state boarders within Nigeria so as to forestall the spread of the dreaded corona virus. In some Eastern states where it would be difficult to know when you have passed one state to the next state, it is impossible to achieve the desired result of the said boundary closure between the state and the next one. Boundary towns or villages in Anambra and Imo, Enugu and Anambra, Abia and Anambra share so much contiguity in their residential areas that an Imo man’s homestead could only be separated from an Anambra man’s homestead by a dwarf block fence. So, what is the use of states boarder closure?
Mr. Ebun-Olu-Adegboruwa – a lawyer had in a Newspaper Report faulted state governors who closed their boarders over the ravaging corona virus saying that their actions were in breach of section 41 of the constitution on freedom of movement as well as the African Charter. He argued that in order to derogate from that constitutional entitlement, there would be need for a law to be made by the House of Assembly. He seems to be right.
By virtue of section 35 (1) of the 1999 constitution “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty. Similarly, by section 41(1) of the constitution, “every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom”.
The above sections among others constitute the fundamental rights of citizens as enshrined in the constitution and also in the African Charter. The supreme Court had to say in the case of SALAWU AJAO V. KARIMU ASHIRU & 3 ORS (1973) 11 SC that every person resident in the country has the right to go about his or her lawful business unmolested or unhindered by anyone else, be it a government functionary or a private individual with respect to right of personal liberty. The Court of Appeal in the case of Otunba Gani Adams & Ors V. Attorney General of the Federation (2006) 44 WRN 47 per Odili J.C.A stated: “Whenever a power exists to deprive people of their personal liberty, that power must be strictly interpreted and not stretched beyond its least onerous meaning such interpretation will be done in a way that will not offend the constitutionally guaranteed rights to personal liberty, to fair hearing within a reasonable time, presumption of innocence and right to be charged for an offence promptly”.
Again in the case of Director of State Security Service & Anor V. Olisa Agbakoba (1999) 3 SC 1, the Supreme Court stated: “In the light of the foregoing, I am satisfied that the official of the SSS concerned in this case had no power to impound or withdraw the Respondent’s passport in the manner he did. The impounding was therefore unconstitutional and illegal since it offended the provision of section 38 subsection (1) of the constitution and section 5 sub section (1) of the Passport (Miscellaneous Provisions) Act. The right to have freedom of movement and freedom to travel outside Nigeria is guaranteed by the constitution but the right to hold a passport is subject to the provisions of the Act”. Per Uwais C.J.N. Note: Section 38(1) of the 1979 constitution is in pari materia with section 41(1) of the 1999 constitution.
The question that now arises is whether the president on one side, and the state governors on the other side, are justified in depriving the citizens of their liberty by enforcing the isolation or quarantining, of corona virus positive patients and restraining, them from moving about as well restraining the movement of other citizens by closure of state boarders and enforcing the stay at home directive together with barring the citizens from attending religious worships, meetings and other gatherings.
Section 35(1)(e) of the constitution provides that the liberty of a citizen can lawfully be deprived “in the case of a person suffering from infectious or contagious diseases, persons of unsound mind, persons addicted to drug or alcohol or vagrants, for the purposes of their care or treatment or the protection of the country”.
It is clear from section 35(1)(e) of the constitution that the persons whose liberty can lawfully be curtailed or trampled upon are the persons who are suffering from contagious or infectious diseases, in the circumstances, those who have tested positive of corona virus. Other citizens who are not suffering from the disease should not be deprived of their liberty in any way whatsoever. The essence of curtailing the personal liberty of the corona virus patients would, according to the constitution, be for the purpose of their treatment and care and the protection of the community.
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There is no similar proviso or at all in section 41(1) of the constitution authorizing in any manner howsoever the denial of freedom of movement in Nigeria in such a manner as is taking place in Nigeria today. The following account will show what citizens are presently suffering. Because of the proximity of Asaba capital of Delta State with Onitsha the commercial nerve centre of Anambra State, stranded commuters who were restrained from crossing the Niger bridge when their vehicles were stopped by soldiers on both ends of the bridge, decided to trek to either their Asaba or Onitsha destinations. It was not that the distance they would have to cover by trekking was that short. It was indeed a long distance. On the first day of the closure of state boarder order, the armed soldiers at the Asaba end intercepted some trekkers and punished them by forcing them to using their bare hands to clean the nearby smelly and disease infested gutter. What a punishment!!! Have they not by that punishment alone contacted the dreaded virus? Closing of inter – state boarders is to say the least, playing the Ostrich.
The action of the president and governors in restricting the movement of the citizens can only be accommodated under section 45(1)(a) of the constitution which provides that nothing in sections 37, 38, 39, 40 and 41 shall invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health. So far, no law has been made either by the National Assembly or the respective state Assemblies under section 45(1)(a) of the constitution (to the writer’s knowledge) before the restrictions started to be reeled out by the president and the respective state governors. No law was made by the National Assembly. In the House of Representatives for instance, Zakari Isa Chawe (APC Kaduna) merely moved a motion under “Matter of Urgent Public Importance” at their plenary whereupon the president was mandated to restrict movement and close boarders et al.
NECESSITY
The only thing that justifies the actions and orders of the president and the State Governors in the circumstances is the exigency of the situation. The measures were taken to meet the exigencies of the precarious period. One of the cardinal elements of justification under the law is that the defendant accused of breaking the law acted in good faith believing himself to be justified by law or to take care of a situation of dire necessity.
Necessity in law is a consequence of the legal maxim: Salus populi est suprema lex, meaning – the welfare of the people is the supreme law. Necessity means something that just must be done or accomplished for a very good reason, which often times is preservation of the life of one person or the other. Under the pain of necessity, one of two evils must be chosen provided the one chosen is the lesser evil in order to avoid a more severe harm or danger that would have materialized if it is not chosen. In almost all occasions of necessity, there is a sense of urgency pervading the atmosphere.
Salmond on the law of Torts 499 (17th edition) said “In some cases even damage intentionally done may not involve the defendant in liability when he is acting under necessity to prevent a greater evil. The precise limits of the defence are not clear, for it has affinities with certain other defences, such as act of God, self help, duress, or inevitable accident. It is distinguishable from self-defence on the ground that this presupposes that the plaintiff is prima facie a wrong doer: The defence of necessity contemplates the infliction of harm on an innocent plaintiff. The defence, if it exists, enables a defendant to escape liability for intentional interference with the security of another’s person or property on the ground that the acts complained of were necessary to prevent greater damage to the commonwealth or to another or to the defendant himself or to their or his property. The use of the term necessity serves to conceal the fact that the defendant always has a choice between two evils. This is what distinguishes the defence of necessity from that of impossibility”.
Necessity has always been successfully pleaded as justification by defendants in appropriate cases to exculpate them from the offences of stealing, trespass or conversion.
From the ecclesiastical angle, David due to the exigency of the situation during his inevitable flight from King Saul, had to ask from Ahimelech the priest, and he was given five loaves of “no ordinary” but consecrated bread so that he would not die of starvation: 1 Samuel 21:2-6
In the case of Dewey V. White (1827) 173 ER 1079, the chimney of a house on fire was destroyed to prevent it from collapsing onto a public highway and causing damage to the public. The plea of necessity succeeded. The law is settled that the defence of necessity will not avail a defendant if the wrong he committed is due to his own willful, intentional or negligent act. For instance, a person who stole a tuber of yam from a yam seller merely because of his destitution and to save himself from death out of starvation will not be availed the defence of necessity because the state of urgency or exigency is not present.
In the case of Udosen V. State (2007) 4 NWLR (pt 1023) 125, the Court refused to see the justification or necessity in a police officer shooting and killing a woman inside a Jetter vehicle that merely sped past a police check point without obeying his superior’s order: “stop that vehicle”. The exigencies of the occasion did not warrant shooting at the vehicle which resulted in the death of the woman. In Usman Kaza V. The State (2008) 2 SCNJ 373, (2008) 33 NSCQR (pt 11)1351, the Supreme Court failed to see the justication or necessity in slaughtering the deceased by a defendant who heard and believed a rumour that the deceased insulted Holy Prophet Mohammed. The Supreme Court on Appeal, affirmed his conviction and sentence by the Court below.
In the case of Mohammed Gadam V. R. (1954) 14 WACA 442, the defendant felt convinced that the deceased and another woman witched his wife and caused her miscarriage and mortal illness. Consequently, he felt justified that it was extremely necessary to kill the deceased so as to destroy the spell. He struck her on the head with a bone handle which resulted in the deceased’s death. The West African Court of Appeal (WACA) stated that to allow a superstitious belief in witchcraft which led to such a terrible result would be setting a dangerous precedent as such a belief was unreasonable. See also Arum V. The State (1980) 1 NCR 84.
CONCLUSION
The novelty of the corona virus attack is that never in the history of Nigeria nay the world over, had there been such an attack. The Ebola disease of 2014 came a little close but not quite. This perhaps, is why neither the extant 1999 constitution of the Federal Republic of Nigeria (as amended) nor the 1979 constitution and others preceding it made any provision covering a situation by which not only those with contagious or infectious diseases should be deprived lawfully of their entitlements to freedom of movement and personal liberty, but the rest of the commonwealth or the citizenry. A novel problem demands a novel solution. An Igbo adage says it all: “Anụ gbaa ajọ ọsọ, agbaa ya ajọ egbe”, meaning, “If a prey takes a dangerous flight, it will be given a dangerous gun shot”.
All in all, the exigency of the present corona virus disaster necessitates the measures and acts of the president and the state governors but does not necessitate the exuberance of some law enforcement agents taking the law into their hands in the name of enforcement of the necessity based sanctions and directives. Corona virus by the grace of God has not become pandemic having not spread to or become prevalent in, all parts of the country. It should rather be regarded as a scourge of a more devastating specie which will sooner than later fizzle out into oblivion the same way Ebola did. This may sound apocalyptic. But there will be nothing else to say in the face of a poisonous virus which has yet no known cure. Let us therefore put our hope in God. Let us be strong. Let our hearts be bold. Let us put our hope in God. No more. No less.
