Well, from all indications, it seems that we are all in for a very long haul, on the issues of COVID 19 and the lockdown mechanism of combating it.

From the reports of the National Centre for Disease Control, NCDC, we have only just crossed the 10,000 tests limit, with over 1,000 positive cases, being an average of 10% positive rate of cases tested, minus those who have been discharged. So, if our population is about two hundred million, what we are bargaining for is an average twenty million persons. The lockdown started on March 30, 2020, according to the President, during his nationwide broadcast. So, between then and now, we have achieved average 10,000 tests, in about one month. To test two hundred million people may just then take eternity altogether. Thus, unless the testing methodology is accelerated somehow, then we will need special miracles to overcome this pandemic. Thank God for His mercies over Nigeria to honour us with those miracles.

As part of the mechanisms of tackling the COVID 19 pandemic, the President and indeed the Governor of Lagos and other States, rolled out some regulations to guide people in responding to the novel virus. Movements were thus restricted in Lagos and Ogun States and the Federal Capital Territory. Some other States have since joined them. In those regulations, some directives have been issued and exemptions granted, especially to those who are considered to be on essential services, such as those in the health sector, media practitioners, hospitality and food business and even those involved in environmental sanitation. Surely, some violations may occur that would warrant enforcement by the government, one way or the other. For one reason or the other, lawyers were not included in the list of those rendering essential services. Now, several persons have been arrested and sentenced on account of these regulations in various parts of Nigeria. The question then is this: how do we proceed to enforce regulations without the involvement of lawyers? It is my humble view that law, law enforcement, legal prosecution and defence, all constitute essential services in any society.

What then is law? According to the learned authors of Black’s Law Dictionary, LAW is “the regime that orders human activities and relations through systematic application of the force of politically organized society, or through social pressure, backed by force, in such a society.” What this means is that no society populated by human beings can be properly organized without law, or else it will be a state of confusion and disorderliness. In another breath, Black’s defined LAW as “the aggregate of legislation, judicial precedents, and accepted legal principles; the body of authoritative grounds of judicial and administrative action.” Generally, lawyers are the ones who interprete the law, whether on the Bench or at the Bar. So, it is not possible to enforce the COVID 19 regulations without involving lawyers, one way or the other. According to Wikipedia, essential services “include services such as hospitals and other healthcare, utilities such as electricity and water supply, law enforcement and firefighting, and food services.” To my mind, something is essential because it is basic, indispensable and necessary. If that is the case, lawyers and law enforcement generally should be categorized as part of essential services.

In the case of COVID 19 pandemic, the law enforcement agencies such as the police, the Economic and Financial Crimes Commission, EFCC, the Independent Corrupt Practices Commission, ICPC, the Customs, Immigration, National Drug Law Enforcement Agency, etc, have all been on full duty, making arrests, filing charges and conducting cases in various courts. And I must commend them for their very gallant efforts. But for every single arrest that is made, a lawyer is needed, as dictated by the Constitution, wherein it is stated clearly in section 36 (6) (C) as follows:

“36 (6) – Every person who is charged with a criminal offence shall be entitled to:

(C) defend himself in person or by legal practitioners of his own choice.”

The important thing to note here is that the Constitution has conferred a right to counsel on every citizen, by employing the word ‘entitled’, which is a legal right that cannot be taken away by fiat. What has happened is that in some cases, people who are jogging on the street to keep fit after sitting in one position for a whole day, are rounded up by the police and charged before mobile courts. These courts have their own lawyers that they compel the defendants to engage compulsorily, against the tenure of the Constitution, which grants a choice in the engagement of counsel. So, government cannot seek to impose any counsel on anyone charged with a criminal offence, but because lawyers have not been included in the list of essential services, they are all held up in their various homes, except a few who could brace it to take on the law enforcement officers in reasonable dialogue. When an accused person is arraigned before a court of law and he is denied the choice of counsel as would be preferred by him, then the trial is tilting towards a nullity.

Recently, government embarked upon the laudable policy of massive decongestion of the correctional centres by granting pardon to about 2, 600 convicts and some others awaiting trial, upon certain conditions. If we are releasing prisoners in their thousands, certainly we should not reverse that initiative by embarking upon any measure that may fill up the detention centres with several awaiting trial cases. The media generally is classified as part of essential services, so also those involved in environmental sanitation, like those collecting and disposing wastes and so many others. There is no way humanity can thrive without involving law, law officers and lawyers. Indeed, law is humanity.

After concluding the work of creation, the next thing that God did was to institutionalize the legal system. He made a law, specifying the duties and responsibilities of the man that he had created, the extent of his powers and privileges and the consequences of the breach of the law that was handed down. When eventually they committed a breach of God’s law, charges were drafted by way of allegations, they were granted fair hearing to make their own case, which they did to the best of their ability and then judgment was delivered accordingly. God would later codify the laws for Moses and his people, breaking them down into stealing, murder, false witnessing, adultery, idolatry, etc. So, law is also divine.

God so ordained it that law should be second to human nature and indeed to be given priority above all other essential services. For instance, it was through the instrumentality of the law that the President and the Governors were able to restrict human movement in the first place and it is still through the law that the police became empowered to effect arrest and charge citizens to court for one infraction or the other. Since the time of Moses, the Court system has been established to grant people the right to have their causes heard and determined. From all the reports garnered so far since the lockdown began, peoples’ rights are being abused here and there without any opportunity of proper defence by counsel of their own choice. The Administration of Criminal Justice Act and indeed all other legislations regulating criminal law and procedure have granted to every defendant the right of counsel. Where then is the defence, when all lawyers are kept away at home? I urge the President and the Governors to consider the inclusion of lawyers in the list of those rendering essential services.

If and when this is done, how do we then balance the equation in relation to the prescriptions on social distancing and avoiding gatherings of people in a single location? Our courtrooms are very small and in some cases, terribly untidy, so there is no way of implementing the social distancing policy to avoid the spread of the pandemic in these courts. So, what do we do? I have read the draft practice direction of the Honourable Chief Judge of Lagos State on remote hearing of cases during the COVID 19 era, through the deployment of technology such as Skype, Zoom, etc. This is commendable but it raises the question of access to justice by the generality of our people, who are mostly illiterates and dwellers in very remote areas. But the major challenge with this is that of durable infrastructure, such as electricity to power the courtrooms, the home of the lawyers and their clients and indeed an efficient data network to run the idea. It will bring additional cost to the clients and their lawyers, in an economy that is already depressed and where salaries are not paid and nothing is moving at all. Maybe for arbitration and such other documentary proceedings, but for land cases, for chieftaincy cases and such other proceedings involving the oral testimony of witnesses, this will be a great challenge that may lead to denial of access to justice.

I think the way to go is to start with the appellate courts, that is the Supreme Court and the Court of Appeal, since it is only a matter of adopting the briefs of argument and thereafter await the final judgment of the Court. This can conveniently be arranged by lawyers and the litigants, as anyone who has filed an appeal should be able to prosecute it with minimal cost. This can then be extended to non-contentious interlocutory proceedings in the High Courts, with maximum caution. For instance, there is only a single door leading into most of the Courtrooms and when one counsel has finished arguing his case, what is the fate of the counsel coming after him, should there be any reason to suspect infection? Without adequate investment in power supply, in efficient and affordable telecommunications network, the idea of remote hearing of cases, though very noble and commendable, will only become the preserve of the elite, the rich clients and their lawyers. When that happens, then justice cannot be for all. But for now, let lawyers be included as part of those rendering essential services.