The legal framework for the derogation of human rights in emergency period in Nigeria includes the 1999 Constitution and the Quarantine Act.
The 1999 Constitution of Nigeria
The constitution expressly permits the derogation i.e. temporary suspension of human rights by an act of the National Assembly. However, this will only be permitted in periods of emergencies and only to the extent that is necessary to curtail the events amounting to a period of emergency.
The Constitution states that a period of emergency arises where there is a proclamation of a state of emergency made by the president in accordance with section 305 of the constitution. The Constitution further provides those circumstances that empower the President to declare a state of emergency in section 305.
The Declaration of COVID-19 as a global pandemic by the WHO highlights the severity and danger of COVID-19 to the health and life in general of the world. Although the Constitution failed to provide criteria’s for determining what would amount to a public danger which threatens the existence of the country, based on COVID-19’s severity and ease of transmission and the fact that there is no known cure, it is only logical that it be classified as an imminent public danger which threatens the life and security of the world, Nigeria included.
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It is pertinent to note that the terms ‘Derogation’ and ‘limitation or restriction’ of human rights refer to different concepts. Whilst derogation refers to the temporary suspension of human rights under specific circumstances and conditions, limitations or restrictions refer to qualifications or exceptions to certain human rights which are always in force or applicable.
These limitations are usually put in place by those laws which protect human rights. For instance, under the right to life as guaranteed in section 33, a person may be intentionally deprived of his life in the execution of a sentence of court for a crime which he has been found guilty or through the lawful use of force of such force that is reasonably justifiable for the defence of another or property. Such a clause is regarded as a limitation and not a derogation of the right.
Additionally, section 45(1) of the Constitution provides for the restriction of certain rights by stating that, “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 or other persons.
This means that human rights such as the right to privacy, freedom of thought and religion, freedom of expression, freedom of assembly and association and freedom of movement may be limited or restricted by a law which is reasonably justifiable in a democratic society. Such a law will be held to be reasonably justifiable in a democratic society where it limits those rights for the sake of defence, public safety, order or health and for the protection of others rights and freedoms.
The reason of public health is especially important to this paper as it relates with COVID-19, an infectious disease which has threatened the health of the world at large. Therefore, laws which seek to limit any of the above mentioned rights for the sake of public health are justifiable and valid. One of such laws is the Quarantine Act of 1926.
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The Quarantine Act 1926 and Covid-19 Regulations
The Quarantine Act of 1926 is an Act which brings about the derogation of fundamental human rights through the imposition of quarantine in order to prevent the introduction into and spread of dangerous infectious diseases in Nigeria.
The Act empowers the President to declare certain diseases as dangerous and infectious and therefore issue regulations containing restrictions of certain human rights for the protection and well-being of the people. It is an alternative means by which the President may derogate certain human rights as opposed to declaring a state of emergency.
Empowered by the Quarantine Act, on 30 March 2020, President Buhari acting on the advice of the Federal Ministry of Health and the Nigeria Centre for Disease Control (NCDC) issued the COVID-19 Regulation which declared COVID-19 a dangerous infectious disease. The regulation further set out guidelines governing the restrictions on certain fundamental rights.
Some of the rights which were derogated in line with Quarantine Act and its subsidiary regulation governing COVID-19 included the right to freedom of movement, the right to personal liberty and the right to freedom of assembly. The right to freedom of movement and personal liberty was initially derogated specifically in the Federal Capital Territory (FCT), Lagos and Ogun State through the imposition of a complete lockdown of movement from 30 March 2020 to 4 June 2020.
By 4 June 2020, the lockdown restriction on movement was made partial as the time frame was relaxed to last from 10pm to 6am. During the period of complete lockdown, schools and private businesses were shut down except those providing essential services. There was also a ban placed on inter-state travel and the suspension of all passenger flights except those with special permits.
The right to freedom of assembly was also derogated during the complete lockdown. Social gatherings such as bars, clubs, concerts, etc were banned. It was however relaxed on 1 May 2020 where mass gatherings were limited to 20 people still adhering to social distancing rules.
There was also a derogation of the right to freedom of religion through the restriction of religious gatherings as contained in the Federal Government Implementation Guideline for COVID-19 Lockdown Policy issued 1 May 2020. This derogation was however relaxed on 2 June 2020 by the updated COVID-19 Guidelines. Religious gatherings were now allowed but with strict compliance to social distancing and public health.
Section 2 of the Quarantine Act and Section 8 of the COVID-19 Regulations granted States the power to issue regulations within the state to help curb the spread of infectious diseases; in this case COVID-19. This means that States could also make provisions which derogate certain human rights for the furtherance of its objectives.
In line with this, several states issued regulations. For example, Kaduna State established the Kaduna State Infectious Disease Prevention Regulation in March 2020 which empowered the Governor restrict movement, prohibit or restrict mass gatherings, close schools, commercial activities and other public institutions amongst others.
In Cross River, the Cross Rivers State COVID-19 Regulations was established which provided for the closure of its border with other states as well as the Republic of Cameroon, ban of social gatherings and religious gatherings and compulsory use of masks. The Governments of Kogi, Akwa-Ibom, Imo, Abia, Rivers and Lagos State also issued Regulations containing similar provisions.
Lastly, in January 2021, President Buhari signed into law the COVID-19 Health Protection Regulations which contains most of the provisions already put in place by the 2019 and 2020 Regulations. However, the significant difference is that it provides a basis for the prosecution of anyone who defaults its provisions. Section 34 of the Regulation holds that the breach of any of the regulations is an offence attracting a penalty of a fine or six months’ imprisonment or both.
