Charles Omole/
Firstly, I will like to state that I support the intent of the emergency orders by governors in some states and the FCT to help reduce the spread of the Coronavirus pandemic. But is it legal and sustainable?
Doctrine of Necessity may be used to support emergency orders needed to preserve public safety in an emergency but it cannot be used to sustain such measures if enabling laws is not passed or existing provisions activated.
Unlike in the USA, State governments in Nigeria are not empowered to declare state of emergency; only Federal Govt can. So any emergency action taken by any Governor cannot be sustained without legal backing. Good intention is not law.
Court of Appeal in the case of Okafor v. Lagos State Government (2017) 4 NWLR (Pt. 1556) 404 held that disobeying the “order” or “directive” of a governor is not a criminal offence. This was based on Okafor disobedience of Environmental Sanitation stay home directive.
The Environmental Sanitation was useful and helpful. But it was a military practice that continued into civilian rule but without any enabling law to sustain it. Hence; a State govt cannot infringe on civil liberties of citizens purely based on good intentions.
Section 305 of the Constitution allows the Federal Government to declare a State of Emergency in Nigeria or parts of Nigeria. Such declaration will have the force of law and allow govt to take on new powers and interfere with civil liberties lawfully. This is what is needed now.
Governors making draconian orders that severely limit liberties of citizens without a State of Emergency being first declared is not consistent with constitutional democracy regardless of the noble intentions. You can do the Right thing in the Wrong way.
All the Western nations that imposed restrictions have laws on the statues to support such move and where there are gaps, new laws are being worked on urgently. The UK PM is bringing new legislation to Parliament tomorrow to enable him sustain his emergency measures for two years.
Necessity can be used to justify draconian measure needed in an emergency. But it cannot be used to support the perpetuation of such Ultra Vires measures over time. So, we understand the need that made the Governors make the orders. But they now must enable legal backing for them
So what should be done?
1. FG need to declare a state of emergency in any state that wants it to enable limiting citizens liberties to be lawfully done.
2. Some of the states may need to pass administrative laws to support some of the business restrictions needed.
3. The FG and States need to put together a package of palliative measures to help all those that will suffer financial loss as a result of these restrictions. Compliance will be high when citizens feel supported by the government.
4. The fight to combat this pandemic must intensify
5. Mobile companies should act as good corporate citizens by designing generous packages to help citizens and businesses who will now be doing more remote working than usual. In UK, British Telecom announced free upgrade of all customers to Unlimited Internet to aid home working.
We must be able to marry the need for swift actions to safeguard public safety with legality and the rule of law. If these restrictions are to continue; government must bring its noble actions within provisions of the law. Sentiment and good Intentions cannot replace constitutionality.
Law can be about perspectives. This is mine and you are free to disagree. It may be a fallible submission but it is nevertheless a perspective worth considering. If other nations can take emergency actions within the law; so can we.
The government need to create more testing centres across the country and especially in all border states and in Lagos and Abuja. More treatment and isolation centres need to be provisioned urgently. I support the efforts of the government so far but more needs to be done speedily.
A declaration of a National State of Emergency by the Federal Government will give cover to Governors and allow States to act within the law to deal with this pandemic. This will also unlock additional funding needed to support its implementation. I pray the FG do the needful.
Finally, any State law that conflicts with Constitutional guarantees is to that extent subservient to the constitution. So no state law can lawfully invalidate a constitutionally given right. FG cover is the best way to ensure States act duly within the law in my humble opinion
*Dr. Omole is a lawyer and political strategist. You can follow him @DrCOmole.
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