COVID-19 and Fundamental Human Rights: Legal Implications on the Right to Protest in Nigeria
Background Overview
Protest demonstrations, though never a novel phenomenal in human history has continually witnessed a rising profile in today’s global scene. This is no less the case in legal circles, where the focus is on finding a balance between the right to protest guaranteed in most national constitutions and several other rights and interests, particularly the right to life, dignity, freedom and security of the person and property.
Starting from the United States of America to London in 2020, the death of George Floyd has sparked a wave of social activism involving protest as an expression of discontent against the manifestation of any form of racism and social stratification. The same is also true of the Nigerian society. Since June 2020 till now, there has been a rising incidence of protest demonstrations within the Nigerian societal context as a response to the death of Tina Ezekwe and Uwavera Omozuwa which is reflective of public dissatisfaction against the arbitrary use of force and firearms by the police and the preponderance of rape cases within the country.
Whilst, it is an incontrovertible fact that the right to protest demonstrations is a fundamental human right subsumed as a joint expression of the dual rights of “peaceful assembly” and “freedom of expression”, notwithstanding, the right is in no way absolute in its application.
The poser here for this discourse is to what extent can such right be lawfully exerted in the light of a global pandemic of a life-threatening virus. Is the intervention of the police in debarring protest demonstrations readily justifiable in the light of these present realities? Indeed, it is no surprise that several other fundamental human rights guaranteed under the 1999 Constitution have been delimited by our legislative responses to the global pandemic, COVID-19.
A highlight of some of these infractions to these basic rights may be stated succinctly thus:
- The right to personal liberty guaranteed under section 35 has been qualified by the need to detain and quarantine persons for the prevention of the spreading of the infectious disease;
- The right to a fair trial under section 36 has been qualified by virtual court hearings taking place, at least at the commencement of the lockdown, for all practical purposes in private and by modifications to how witnesses can “attend” and give evidence. More so, under subsection (4), the fair hearing envisaged by this section must be conducted in the public. The “publicity of a trial” is one of the hallmarks of fair hearing;
- The right to manifest religion or belief under section 38 has been limited with the imposition of ban on religious gatherings and activities;
- The right to freedom of movement provided for under section 41 is limited by the imposition of inter-state travel ban across the country.
The Constitution and the Public Order Act: Making a case on the Impetus of the Right to Protest Amidst the Global Pandemic
The 1999 Constitution provides for the right to “protest“, in section 39 “freedom of expression” and section 40 “right to peaceful assembly“. Section 39 in plain terms provides, “every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interference“.
In a similar vein, section 40 asserts that “every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests“. It would seem that sections 39 and 40 are unplanned victims of the COVID-19 pandemic.
The impetus for the questions regarding the legal implications of construing sections 39 and 40 of the Constitution vis-a-vis the exigencies of the global pandemic further illustrates the general limitations to the nature of such right. This is more so when considered from the standpoint that the omnibus limitation provisions within national constitutions derogating rights in a time of emergency have been invoked by several jurisdictions during COVID-19. Suffice it to say that the right to protest is automatically subject to the limitation provision in section 45 of the Constitution.
Furthermore, it is noteworthy that the implementation of the right to protest guaranteed under section 39 and 40 of the Constitution is also qualified externally through the Public Order Act P42, Laws of the Federation of Nigeria 2004. The Public Order Act is the major law that attempts to regulate protest demonstrations in Nigeria. The Act in its full ambit protects not only the right to protest but also the right of the state to intervene through the machinery of the police force that facilitates the rights. The Act being regulatory in its effect is intended to provide the practical guidelines for persons who seek to enjoy the constitutional right to protest, and also outlines the duties and functions of the state in managing protest.
It is not the place of this essay to explore under this head the constitutionality of the Act in terms of whether the Act is any less a restrictive means of achieving the cardinal purpose of the right to protest under the constitution nor to appraise the procedure of lawful protest under the Act; rather, a gloss over in terms of the power of the police under the Act to disperse unlawful processions and assemblies in tackling the jurisprudential problem of the justification of delimiting the right to protest vis-a-vis the exigencies of the COVID-19 global pandemic assumes the centrality of this discourse. These powers of the police force safeguarded under the Act were in place before the COVID-19 pandemic and continue to be in force. But a global pandemic of a life-threatening virus engenders some unparalleled complications for both protesters and the enforcement machinations in place.
The power to administer the Act is vested on the Governor of a State but which power is deemed delegated to the Commissioner of Police or the Divisional Police Officer mutatis mutandis. Under section 2 of this Act, any police officer not below the rank of an Inspector of Police and above may stop an assembly, meeting, or procession which no license has been issued or which violates any of the conditions stipulated in the license.
The section further provides that any police officer not below the rank of an Inspector of Police and above may order such assembly, meeting or procession which has violated any of such conditions stipulated in the license to disperse immediately. Also, section 4 of the Act states that where the Police are of the view that the security situation in their locality is not conducive for any public procession or assembly, the Police would issue a proclamation to that effect prohibiting the holding of such meeting, procession or assembly. Furthermore, the Police by virtue of section 9 is empowered to apart from dispersing unlawful assemblies or procession authorized to arrest without warrant any person who acts in breach of the Public Order Act.
It remains to be seen whether any such case-specific authorizations or conditions will be allowed for upcoming protests and public demonstrations.
Lockdown Laws: Infectious Disease (Emergency Prevention) Regulations 2020
In Nigeria, both the federal and state governments are taking pragmatic measures to contain the spread of coronavirus throughout the country. Our focus in this essay is on the law as applicable in Lagos State in combating this pandemic. In an attempt to prevent and curtail the spread of the coronavirus and manage the impact of the pandemic on the lives and the economy on the residents of Lagos State; the Lagos State Government on the 27th of March 2020 issued the Infectious Diseases (Emergency Prevention) Regulations 2020.
The Regulation was issued further to the powers of the Governor under the Quarantine Act, Q2 Laws of the Federation of Nigeria 2004 and the Lagos State Public Health Law Ch. P16 Laws of Lagos State 2015. The Regulation ratifies all acts done before its issuance and empowers the Governor to exercise his powers directly or through other persons designated by him by an instrument in writing. The Regulation designates COVID-19 as a dangerous infectious disease within the meaning of section 24 of the Quarantine Act, noting that it constitutes a severe threat to the public health of Lagos State.
The Regulations in its full ambit undoubtedly confers upon the Governor of Lagos State a wide array of powers in realizing the cardinal objectives of the Regulations. But relevant to our discourse is the provision of Regulation 8 dealing with the “power relating to events, gatherings and premises”. Regulation 8(1)(a)&(b) empowers the Governor to restrict or prohibit the gathering of persons in the Local Area, such as conferences, meetings, festivals, private events, religious services, public visits, and such other events, save where the written approval of the Governor is obtained for such gathering.
It further stipulates that the Governor may impose requirements for obtaining the written approval of the Governor for gathering of persons within the Local Area. Worthy of mention also is paragraph (e) of Regulation 8(1) which empowers the Governor to impose restrictions on the number of persons that may be present in a public place, such as event centres, bars, places of worship, educational institutions, and other public places as the Governor may deem necessary.
Since it is not the aim of this essay to discuss whether the Regulation is an exercise in executive lawlessness, we can, therefore, assume that the Governor has validly exercised his executive power in consonance with the provision of section 8 of the Quarantine Act delegating such duty to him and in the light of the recent decision of A.G. Lagos State v Funke Akindele & Anor (2020) unreported MIK/A/43/2020, wherein the Magistrate Court of Lagos upheld the constitutionality of Infectious Disease (Emergency Prevention) Regulations 2020 and convicted the offenders for violating the state directive made according to the Regulations imposing restrictions on the number of persons that may be present in a public place.
Conclusion: What Does This Mean For Protesters?
Undoubtedly, a protest would fall within the contemplation of “gathering of persons” under the Regulation. To the extent that the Regulation uses the phrase “gathering of persons”, suffice it to say that the Regulation excludes from its ambit “individual protest”, however, if one is there as a result of an organized activity coupled with other individuals engaged in the same activity, this would amount to “gathering of persons” sufficient to invoke the full effect of the Regulation. For instance, it would permit an unrestricted number of persons to individually participate in a meeting held in a public place within the meaning of the Regulation. The cardinal objective of the Regulation is to confine group or public meetings to an infinitesimal number of people- the rationale being that, if one of them is infected, this whittles down the epidemic progression of the virus.
More so, it seems to be immaterial whether or not the rationale behind the gathering is an assertion of a lawful right nor the gathering aligns with all pre-existing COVID-19 laws in respect of the particular protest. The reason appears not to be far-fetched since it can be rightly argued that the Regulation amounts to a derogation of right suggestive of the legislative intent behind section 45(1)(a) of the 1999 Constitution. It is instructive in this regard to point out that the mere fact that there is compliance with the general “two meters” and other “social distancing” precautionary measures does not confer a validity status on such gatherings. These are just guidance directives devoid of any legal force and does not of itself constitute a legal requirement to be satisfied upon for the exercise of such right. Invariably the exercise of the power of the police force in dispersing civil processions under the Public Order Act further appears to be justified in the light of Regulation 8(2) in current times.
Besides, it needs to be clarified that because the restrictions contemplated under the Regulation only applies to geographically-specific physical assembly and association, it is the submission of the writer that section 39 of the 1999 Constitution dealing with the right to freedom of expression remains largely unaltered except in so far as they can only be exercised by a physical gathering. The Regulations do not seek to hamper alternative mode of expression of views, ideas and information such as via social media, television broadcast, newspaper and so on.
Summarily, the determining consideration at all time is the “public safety” and “public health” exception under section 45 of the 1999 Constitution.
Obiora Samson Faithful is a 500 level law student at the University of Lagos, Nigeria. He has been interested in Governance and Policy, Corporate & Commercial Law, Employment Law and Environmental Law. He can be contacted via his email: obiorasamson98@gmail.com
