COVID-19: PREVENTION MEASURES OF THE STATE AND THE NEED TO AVOID HUMAN RIGHTS CRISIS.

By:

OGECHI OGU ESQ.

DEPUTY DIRECTOR

PRAWA.

It is no longer news that COVID-19 pandemic is a direct attack on the core foundation of human rights- the right to life.

The human community has found itself in a very desperate situation and several desperate and urgent measures are being taken by different nations to tackle this pandemic that has affected over half a million human beings. This is in line with the obligations of states to promote, protect and fulfill human rights of the citizens.

Clearly, the Fundamental Objectives of government under S. 17(3) of the constitution of the Federal Republic of Nigeria is to safeguard the health of citizens and to provide adequate health care facilities. Article 12 of the International Covenant on Economic, Social & Cultural Rights provides that government must recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health which includes the prevention, treatment and control of epidemics and pandemics.

Living up to expectations therefore , Nigeria as a nation and the respective states that make up the federation are taking urgent steps to curb the spread of the COVID-19 Pandemic .So many regulations and orders have been made by different state governments to this effect. Most of these regulations and orders may also derogate on the rights of individuals in the state and in some cases actually be draconian in nature.

Again due processes of law making are not likely to be followed in the making of these regulations and laws and citizens may not be involved in the process.

This is a huge challenge as many persons are already raising concerns of non consideration of the socio-economic conditions of the masses in the making of the laws and regulations and the likelihood of a greater number of individuals facing death as a result of hunger occasioned by the effects of the regulations. There are also concerns raised regarding punishments provided in the laws and the likelihood of abuse of human rights especially affecting human dignity , prohibition of torture , cruel , inhuman and degrading treatment by security personnel.

Taking the lead and going beyond ordinary regulations, the Lagos State House of Assembly has passed an emergency bill to help the state combat the COVID-19 Pandemic.

The bill, sponsored by the Speaker of the House, Mudashiru Obasa, is titled the Emergency Coronavirus Pandemic Bill 2020 and affords the state governor, Babajide Sanwo-Olu, the legislative concurrence to spend an initial N20 billion to effectively curtail the virus and enforce compliance by residents in the state[1].

The Bill was given accelerated hearing and stipulates a fine of N100, 000 for defaulters, one-month imprisonment in the correctional centre, or three months community service.

Where the offence is not spelled out, it attracts N200, 000 and also allows the leadership of the various arms of government to structure their own restriction format.

Section 8 of the bill …empowers the governor to declare a state of emergency of up to three months if the situation requires so.

Commenting on the Bill, one of the Members observed that the spread of the virus was unprecedented and as a result, stringent measures need to be taken to forestall the pandemic[2].

It is important that we mark the language of the Law maker especially regarding ‘stringent measures ‘ and place this side by side with the approach the enforcement may take and the negative human rights implications.

Learning from experiences of other jurisdictions, we have to be very careful not to slide into conflicts and contradictions that would further undermine the human rights of the citizens. Example, a video emerging from one of the affected countries shows the flogging of persons worshipping in a religious house by Security Agents. It is clear that compliance would have ordinarily been achieved without the beating of those men with cane if there had been professional and courteous approach used by the Security personnel.

Corporal punishment which amounts to abuse of respect to human dignity and torture, cruel inhuman and degrading treatment is not necessary in that circumstance.

A more disappointing picture came from Kenya (seen on the Facebook wall of a friend who also is a Development worker). It is a picture of a large crowd of individuals hulled together by Security Personnel in the name of Enforcement of the Social Distancing Regulations. You can imagine the irony and contradiction of purpose, same persons the government want to protect from COVID-19 are through this manner of enforcement exposed to situations that would make for easy infection.

This is same thing laws that recommend sending offenders to Custodial centers would achieve. With the Lagos example, there is likelihood of many offenders ending up in Custodial centers as the option of fine of N100,000 is far too high for likely offenders to pay. Recalling the fact that minimum wage in the country is pegged at N30,000 and mainly likely offenders would be the unemployed who struggle daily to put food on their tables.

Therefore, though the steps taken by states so far are quite commendable, the fact that some of them portend likely derogations /restrictions on the rights of persons in these state cannot be denied. This calls for involvement of civil society organizations and other relevant stakeholders in the drafting of these laws and regulations and as a follow up an urgent development of strategies to monitor the implementation and enforcement by the different government agencies.Failure to follow up on the activities of the relevant agencies of government saddled with the responsibilities of implementation and enforcement of these laws/regulations could lead to a human rights crisis that may portend additional danger to the already traumatized citizens of the country .

It is then the collective responsibility of the society to ensure that this kind of negative outcome of an ordinarily good initiative / measures to curb COVID-19 is averted.

Some of the human rights likely to be affected by these orders are as contained in the 1999 Constitution of the Federal Republic of Nigeria (as amended) and examples are right to life S.33 ; right to respect and dignity of human person and prohibition of torture, cruel, inhuman and degrading treatment S. 34; right to personal liberty  S. 35;  right to privacy of citizens S.37; right to freedom of thoughts, conscience and religion S.38;  right to Freedom of expression  and freedom to hold opinion S. 39; right to freedom of association S.40;  right to move freely throughout Nigeria and right not to be expelled or refused entry S. 41.

Admittedly these rights except for right against torture, cruel, inhuman and degrading treatment and right not to be subjected to retroactive application of a criminal law S. 36 (8) have some derogations in certain circumstances also captured by the constitution and the government is well within its rights  to take away these rights in the face of this deadly COVID-19.

Section 45 of the constitution of the FRN (as amended) provides that:

(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.

That well acknowledged however, we must take urgent steps to ensure that:

1. The laws are not draconian as to contradict human rights protection of the citizens thereby defeating their purpose.
2. The citizens are carried along in the making of the laws and regulations.
3. Development of Standard Operative Procedures to guide law enforcement agencies in the Effective and efficient implementation of the laws and regulations
4. Human face is applied to the implementation of the laws and regulations
5. Requisite cushioning effects are put in place to help the citizens survive the period of no movement and derogations of human rights.
6. There is enough enlightenment and awareness creation on the laws and regulations by the Media, National Orientation Agency, Traditional and religious leaders and other relevant stakeholders.
7. Proper education of law enforcement agencies on the importance of compliance with human rights standards and principles in the implementation of the laws and regulations.

Finally, COVID-19 pandemic is a threat to fundamental human rights and  in dealing with it we should creatively work towards making laws and regulations whose implementation and enforcement would not further subject the citizens to deeper human rights abuse.

[1] See https://www.channelstv.com/2020/03/26/lagos-assembly-passes-bill-to-curb-coronavirus-spread/

[2] See https://www.channelstv.com/2020/03/26/lagos-assembly-passes-bill-to-curb-coronavirus-spread/