Legal Issues in Fundamental Rights Enforcement and Covid-19
Fundamental human rights are rights which upon actual breach or threat of breach are enforceable in the court, as such fundamental human rights are rights that have constitution backing. By virtue of Chapter IV of 1999 Constitution of Nigeria, fundamental human rights are viewed as inherent in every human and given priority above any other rights available to human beings. Compared to the rights provided for in Chapter II of the Constitution, Fundamental human rights are justiciable and enforceable.
Below are some of the challenges of enforcing fundamental human rights:
- Misuse or abuse of power
- Poverty: this is one of the challenges of enforcing Fundamental Human Rights. Reason being that a good number of Nigerians are living in abject poverty, thus how can they enforce their rights when they are unable to afford basic necessities of life.
- Closure of courts due to lockdown: access to justice was also impacted as the courts were indefinitely closed. As such, this was indeed a huge challenge to masses who had the means of enforcing their fundamental rights.
The Legality of the Lockdown/Curfew Enforcement
The Nigeria Constitution is a grundnorm, as such the supremacy of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 (as amended) is sacrosanct. Section 14(2)(b) states that “the security and welfare of the people shall be the primary purpose of government.”
As a follow up to his speech, on 30th March, 2020 the president of Nigeria signed the Covid-19 Regulation 2020, which was made in pursuant to the Quarantine Act (CAP Q2 LFN 2004). The ACT states as follows “an Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases.”
In other words, the purpose of the Act was not only to impose quarantine but also to ensure the prevention of dangerous infectious diseases into and out of Nigeria. Going further, even if covid-19 wasn’t expressly stated as one of the dangerous diseases listed in the Act, it however falls under the meaning of dangerous diseases under the Act. Because it is an infectious disease with a contagious nature, and when this Act was made who could have foreseen that a disease like Covid-19 was ever going to exist.
Another law that gives legal backing to the enforcement of Covid-19 Lockdown/Curfew is the 1999 Constitution of Nigeria particularly the provisions of section 305 of the 1999 Constitution of Nigeria. It gives government the right to declare curfew in emergency situations or when there is an enormous threat to national security or threat to lives.
Thus, does COVID-19 pandemic come within the definition of Section 305 (d)’s 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? The declaration of covid-19 as a global pandemic by the WHO establishes the fact that covid-19 is a grave and great threat to lives as well as to economic and social wellbeing of everyone around the world.
However, the proclamation issued by President Muhammadu Buhari was not one that invoke his emergency powers under Section 305. Rather, it was a Regulation made pursuant to the Quarantine Act which is also an applicable law in Nigeria in the fight against COVID-19.
As such, this shows that the lockdown and curfew enforcements was lawful. However, it does not necessarily mean that the fundamental human rights violations that occurred during COVID-19 are also lawful.
Justiciable and Legality of Derogation from Fundamental Human Rights
To understand the full import of Section 45, it must be read together with Section 305 of the 1999 Constitution. Going further can the provision of section 45 of the 1999 Constitution which provides for restriction on fundamental human right and derogation from fundamental human right, be seen as giving validation to the violations and breaches of fundamental human right that occurred during covid-19. In other words, does section 45 give lawful backing to the fundamental human rights violations that occurred during Covid-19.
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The Constitution permits measures (in times of emergency) which derogate from certain rights only “to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency.”
As such, Section 45(1)(a) of the CFRN, 1999 (as amended) gives the President the right to invoke the Quarantine Act to temporarily relax the fundamental right to freedom of movement of Nigerians guaranteed under Section 41 of the Constitution for the purpose of preventing the spread and transmission of the dangerous Coronavirus.
Taking into consideration the discussions above, what amounted mainly to constitutional breaches were the acts of the security agents violating the right to life and freedom from torture of individuals, including through extra-judicial killings during enforcement of COVID-19. As such, although the COVID-19 Pandemic brought severe violation of constitutionally guaranteed rights, the Nigerian Quarantine Act and the COVID-19 Regulation order of 2020 fall short of properly prescribing or regulating the actions of law enforcement agents.