FUNDAMENTAL HUMAN RIGHTS AND THE LIMITATIONS IN THE ERA OF COVID19 PANDEMIC IN NIGERIA

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FUNDAMENTAL HUMAN RIGHTS AND THE LIMITATIONS IN THE ERA OF COVID19 PANDEMIC IN NIGERIA

ABSTRACT
The concept of human rights refer to social and political concepts of human rights that guarantees and protect the basic privileges of a common human being It is a well-known statement of fact that fundamental rights are groups of rights that are acknowledged by a high degree of protection from violation by being identified in a single authoritative document such as the constitution. The upholding of human right is an issue that cannot be over emphasized, this is based on the fact that human rights are moral principles or norms for certain standards
of human behavior and are regularly protected in municipal and international law. World health organization (WHO) declared that an outbreak of the viral disease COVID-19 first identified in December 2019 in Wuhan, China had reached the level of a global pandemic Citing concerns with “the alarming levels of spread and severity. The Nigerian government declared a state emergency in the country under the provisions of section 305 and s.45 of the constitution on the grounds of an ongoing pandemic which is a threat to public health and safety. The main
aim of this research work was to carefully examine the legality and enforcement of the fundamental rights of Nigerian citizens in an emergency situation such as Covid-19, This study provides an overview of human rights, and recommends ways governments and other actors can respect human rights in their response to emergency situations. Thus, when a future emergency situation emerges, in order for them to avoid breaching a citizens fundamental human rights such as adopting a rights respecting approach in the future and give clear
instructions to security agencies not to abuse their powers when next another emergency situation arises in the future, so that the Nigerian citizens’ fundamental human rights can be protected.

CHAPTER ONE

 

INTRODUCTION

 

1.1.        Background of the Study

 

The concept of Human rights refers to social and political concepts that refer to the guarantee and protection of the basic privileges of a common human being”1. It is a well-known statement of fact that fundamental rights are groups of rights that are acknowledged by a high degree of protection from violation by being identified in a single authoritative document such as the constitution of the state, or has been found acceptable under a due process of law2. The protection of a human being, has become a duty placed on states, therefore making some rights universally enforceable and essential for the human race at large. Some of these widely accepted rights include, the right to liberty, right to freedom of movement, right to freedom of religion, right to freedom of expression, right to freedom of association and the right to peaceful assembly3. The framework of this legal essay will be based on the Nigerian Laws and the application of the law in the protection of human rights.

 

The introduction of the Presidential system of government placed overall supremacy on the Constitution, and provided for the codification of the fundamental human rights. human rights. However, in the 21st century, the world faced a new monster- Covid-19.

 

“The Corona Virus popularly known as Covid-19 or COVID, is an infectious disease caused by severe acute respiratory syndrome coronavirus4. The first incidence of the case was first discovered in Wuhan, China in December 2019. Since then, the disease has spread worldwide leading to an ongoing pandemic”5. “The nature of the virus has been discovered to be fatal, therefore leading to a change in world systems and life adaptation”. 6

 

 

 

 

1G. Fitzmaurice ‘Legal Advisers and Foreign Affairs (Review Article) (1985) (59) (1) Journal of Roman Legal Advisers<https://www.cambridge.org> assessed 22 July2021

 

2Cornell Law School, ‘Fundamental Rights.’<https://www.law.cornell.edu/wex/fundamental_right> accessed 22 July, 2021

 

  • Biletski, The Essence of the HumanRights’ (2010) (37) (4) SAGE journals<https://www.journals.sagepub.com> assessed 22 July 2021

 

 

5D. Cennimo,’Understanding the Early Evolution of the Coronavirus Disease 2019’ (2020) Public Health Journals<https://emedicine.medscape.com/article/2500114-overview#>accessed 22 July, 2021

 

  • Ibid

 

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The implication of the virus is that the world had to strategize and adapt to the situation, resulting to the derogation of certain rights, reorganization of world government and legal standing.

 

With the outbreak of Covid-19, the World Health Organization on March 11 2020, declared that disease had reached the level of a global pandemic with ‘an alarming level of spread and severity’. Government therefore had to take an aggressive action to curb the spread of the virus. On 27 February 2020, Nigeria reported her first confirmed case of Covid-19 in Lagos State. Before the confirmation, the government began to place measures to control the possible spread of the disease. These measures were to be coordinated by the Nigerian Centre for Disease Control NCDC. Despite the measures put in place by the Nigerian government, the virus continued to spread steadily in the country with a total of 5,621 confirmed cases and 176 deaths recorded in May 2020.

 

Nigeria belongs to the category of nations with a constitutional structure for emergency powers, enabling the president to proclaim a state of emergency under any of the following circumstances;

 

  • Where the federation is at war, or there is eminent danger of invasion or involvement in a state of war;

 

  • Where there is a breakdown of public order or public safety in part or in whole of the country;

 

  • Where there is a situation of imminent danger, public danger or disaster or natural calamity.

 

  • Finally, a state of emergency can be declared when the president receives a request from the state governor which is sanctioned by a majority in the House of Assembly.

 

Emergency powers are highly subject to abuse; therefore, it is conditioned to a level of constitutional checks to prevent the abuse of power7. Generally, the Chambers 20th Century Dictionary define the concept of a state of emergency as,

 

 

 

 

 

 

 

 

 

  • Lawal, ‘Abuse of powers of impeachment in Nigeria’ (2020) (48)(2) Journal of Modern African

 

studies<https://www.cambridge.org/core/journals/journal-of-modern-african-studies/> accessed 23 July, 2021

 

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The suspension of normal law and order procedures and the introduction of strict controls of the population that usually involves the military, so that a crisis or a revolution can be contained”.’8

 

The 1999 constitution does not out rightly state the meaning of a state of emergency. Its meaning can be extracted by paying particular attention to some sections of the constitution, particularly section 45(3) which states;

 

“In this section, a period of emergency means any period during which there is in force a proclamation of a state of emergency declared by the president in exercise of the powers conferred on him under section 305 of this Constitution”9.’

 

However, section 305 does not also expressly spell out the meaning of the expression ‘state of emergency’ but extensively spells out the process for declaration of a state of emergency, the conditions that will engender such a declaration, when it will cease to have effect, and the role of the National Assembly, the governors of the states and its legislative house in the process.

 

Notably the constitution permits measures in times of emergency which can derogate certain rights only to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during the emergency situation.10 This action by the president, in pursuance of Section 3 and 4 (c) of the Quarantine Act of 192611, effectively put on hold specific rights. For example, inter and intra state movements in the affected areas were prohibited for an initial stage of 14 days, which was strictly enforced by security personnel in the state. “The privilege of movement was given to a few workers whose services were essential to the situation, such as health workers and journalists”.12

 

The existence of covid-19 introduced several issues for concern on the topic of human rights. The major issue being how human rights can be enforced even in the pandemic and how enforceable are our rights during a global pandemic. In the context of Covid-19, there are

 

 

 

8Chambers 21st Century Dictionary (1375) (Revised Edition) Edinburg Chambers, Publishers Ltd 1996.

  • CFRN,1999 (as amended), s45(3).

 

  • Abdulrauf, ‘Nigeria’s Emergency (Legal) Response to COVID-19: A Worthy Sacrifice for Public Health?’

 

(2020) (1) (1) <https://verfassungsblog.de/nigerias-emergency-legal-response-to-covid-19-a-worthy-sacrifice-for-public-health/> accessed 23 July, 2021.

  • Section 3 and 4, Quarantine Act 1926, Cap.Q2 Laws of the Federation of Nigeria 2004.

 

 

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certain human rights that are taken as more important than the others examples of these rights being right to life, freedom from discrimination and the right to proper health care.

 

1.2.        Statement of The Problem

 

The derogation from human rights points to a provisional suspension of certain rights contained in human right instruments or constitutional bills of rights. It is the right of states to depart from their legal obligations in exceptional circumstances, such as a state of emergency. Under the constitution of Nigeria, Section 4513 of the 1999 constitution of Nigeria as amended provides for the derogation from the fundamental rights guaranteed in sections 33, 35, 36, 37, 38, 39, 40, and 41 under limited circumstances. The constraint on these rights exists only in respect to a law that is reasonably justifiable in a democratic society – in the interest of defence, public safety, communal order, public morality and public health, for the benefit of protecting the rights and freedoms of other persons. The derogation of rights involves the suspension of the application of some rights in the exceptional occurrence of instances such as a state of emergency. These rights include the right to life, prohibition of slavery, prohibition of torture or to cruel, inhumane or degrading treatment. Section 45 of the 1999 constitution makes an anthology dealing with the derogation on the rights guaranteed under the constitution. The importance of section 45 is that:

 

“there can be no derogation from the rights guaranteed under sections 37, 38, 39, 40 and 41 unless there is a law passed to that effect. Furthermore, such derogation has to be reasonably justifiable in a democratic community in the interest of justice,– in the interest of defence, public safety, communal order, public morality and public health, for the benefit of protecting the rights and freedoms of other persons”.

 

The Nigerian government declared a state emergency in the country under the provisions of section 305 of the constitution on the grounds of an ongoing pandemic which is a threat to public health and safety.

 

“However, the enforcement of the COVID-19 restrictions and other measures created a series of violation of human rights across the federation. For example, according to a National Human Rights Commission report14, a total of 209 complaints were made concerning the violation of

 

  • CFRN, 1999 (as amended).

 

14L. Abdulrauf, ‘Nigeria’s Emergency (Legal) Response to COVID-19: A Worthy Sacrifice for Public Health?’ (2020) (1) (1) <https://verfassungsblog.de/nigerias-emergency-legal-response-to-covid-19-a-worthy-sacrifice-for-public-health/> accessed 23 July, 2021.

 

 

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the right to life”. The report further shows that complaints were made relating to the extra-judicial killings, violation of the right to freedom of movement, right to life, unlawful arrests, detention and seizure of properties, sexual and gender based violence, discrimination, torture, inhuman and degrading treatment and extortion. As a result of this, 18 documented incidents of extra-judicial killing lead to 29 deaths. Law enforcement officials had killed a total of 18 people to enforce the regulation at the same period.15

 

This project has compared the provisions of the CFRN and that of the COVID 19 restrictions to find out if non derogatory rights discussed above can be derogated during an emergency situation like the COVID- 19 pandemic.

 

 

 

1.3.        Aims and Objectives of the Study.

 

The main purpose of this study is to carefully examine the legality and enforcement of the fundamental rights of the Nigerian citizen in an emergency situation such as Covid-19.

 

 

 

  • To provide a detailed background as to how Covid-19 became a national threat giving rise to the declaration of a state of emergency nationwide to curb the spread of the disease.

 

  • To adequately discuss the concept of human rights, the nature of human rights, and how human rights are handled in an emergency situation.

 

  • To critically examine the legal framework regulating human rights in Nigeria and the enforcement of the law as it relates to human rights.

 

  • To determine what role agencies, institutions and international law plays in the implementation of human rights in Nigeria.

 

  • To appraise the 1999 constitution as legal document providing for human rights in Nigeria.

 

  • To discuss the role of the government specifically the judiciary in the enforcement of human rights in an emergency situation.

 

  • To evaluate the impact of COVID-19, on human rights

 

 

 

15J. Mesquita ‘Human Rights Dimension of COVID-19 Response’ (2020) (1) (1) https://www.google.com/url?human-rights-dimensions-covid-19/ accessed 23 July,2021.

 

 

 

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  • To identify the need for human rights in the society, the challenges faced with the enforcement human rights and the solutions to the challenges of enforcing human rights

 

 

 

1.4.        Scope and Limitation of the Study.

 

This long essay presents a very broad scope. In recent times, a lot of effort has been invested in researching on Covid-19 and its effect on the world. The virus has cut across all spheres of disciplines, each attempting to give more analysis on the implication of its existence. In view of this, research on this topic still progresses, as articles, journals, and aspects of the law have been reviewed and scrutinized to fit into the global situation of a pandemic. In regards to this topic however, the laws under the Nigerian jurisdiction will be effectively applied to streamline the thesis, focusing on: the provisions of the constitution, the Quarantine Act, several legislations under Nigerian law as well as case studies and legal articles focusing on the topic.

 

 

 

1.5.        Research Methodology.

 

The method of analysis used was doctrinal research method. For the legal purposes of addressing the aforementioned issues, specific scholarly work and law were used legal laws such as primary and secondary sources of law, case studies, student papers, legal articles and journals will be scrutinized and applied to the operation of law under the Nigerian jurisdiction as a means of illustrating the application in practice, showing the enforcement of rights even in the event of an emergency situation.

 

 

 

1.6.        Significance of the Study.

 

The concept of human rights has been discussed around the world from the start of time. The value of human existence cannot be over emphasized, even normal times. With the outbreak of Covid-19, there is need to discover ways to protect people not just from the virus itself but enforcing their rights even in a change in world norms. It is therefore important to what amounts to a violation of human rights even in a global pandemic. The significance of this study is that buttresses the fact that human rights can be enforced even in the state of a global situation. The enforcement of human rights should be more enforced in these times, creating a

 

 

 

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pathway for the near future and the future of our legal system. This study is aimed at educating the reader on why human rights should be strictly adhered to in an emergency situation.

 

 

 

 

 

 

1.7.        Literature Review.

 

Although the topics of rights have been widely spoken about in the course of history, a few scholars in the 21st century have now looked at the importance of rights in an emergency situation. Aristotle was cited for his logical theories and made a solid distinction between how human rights and fundamental human rights ought to be viewed in a political society. He stated that human rights are simply rights that belong to all human beings irrespective of their nationality, race, caste, creed and gender. The notable difference between fundamental rights and human rights is that fundamental human rights are specific to a particular country, where as human rights has a large acceptance worldwide16. The Stanford Encyclopaedia of Philosophy states that “human rights are norms that aspire to protect all persons from severe political, legal and social violations”.17 It states that the philosophy of human rights concentrates on the questions arising from existence, justification, and legal status of rights. Because the scope of human rights is so vastly discussed, the question for thought was birthed; where should the power backing human rights lie, in the constitution or in the inherent discretion of the law makers or of a single human being.

 

The constitution is the fundamental law of the state which includes broad rules and principles by which a state forms its structure, its authorities and their functions, with the freedoms, rights and their guarantees.18 The scholar Ioana Deleanu19 stated in her legal thesis that “the constitution is placed at the pinnacle of legal documents, therefore all laws are formed and must be in compliance with constitutional norms”. “The law was removed from the hands of men because men made laws as the need arose and on his discretion”. “A document had to be created to free of bias and placed at the top of the legal ladder so human beings could search and find errors created by other human beings vis-à-vis a structure for the treatment of other human beings despite their calibre and state, hence the need for fundamental human rights.

 

 

  • Malcom Schofield, ‘Sharing in the Constitution’, Review of Metaphysics, 49(1996).

 

  • Stanford Encyclopedia of Philosophy (2003).

 

  • Ioana Deleanu, Constitutional Law and Political Institutions (Nova Publishing House, Bucharest, 1996).

 

  • Ioana Deleanu, Constitutional Law and Political Institutions (Nova Publishing House, Bucharest, 1996).

 

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Because the constitution is supreme its provisions can be enforced despite the state of the country”. Thus, the force of the constitution must be backed up by the actions of the authorities of the state.

 

According to the report of the United Nations20, “over 65 million people have contacted the Covid-19 virus and 1.5 million have lost their lives”. In the movement to contain the virus, many social activities have been halted denying people of their right to life, movement, adequate health care, education and ownership of property. Though the restrictions put in place were mandated to reduce the spread of the disease, in some cases they denied freedoms of movement, assembly and speech- raising human right concerns.

 

According to Cheluchi Onyemelukwe,21“the issues underlying the spread of covid-19, have been flooded on the Nigerian soil. The manner by which the restrictions made by the government were enforced led to reports of several human right abuses. These included killing of 18 persons, more than the number of deaths caused by the virus itself at the initial stage of the spread, confinement without court orders in places where physical distance was irresoluble and demolition of buildings. The pandemic affected civil and political rights, its impact felt across all segments of the Nigerian society”.

 

With the fast spread of the virus, I have witnessed the general abuse of human rights such as right to good health care and the right to life in general. it is absurd to me that despite the presence of the constitution which is the highest level of authority, such basic rights can be abused and there has been little or nothing said about advocating for the protection of human rights in regard to the presence of a dangerous disease in the country. Although some level of work has been put into this topic, I believe that opinions and views may differ but cannot be wholly exhausted as there are various sides to this topic. The purpose of this essay however will point to the fact that although covid-19 has created an emergency situation in our country, there are rights every citizen has that cannot be derogated from regardless of the global and now national situation, as contained in the highest document of law in Nigeria which is the constitution. In an attempt to do so, I will make use of relevant and accurate material such as the constitution, legislation, case laws, journals, articles and my ideas to buttress the purpose of this topic.

 

 

 

  • United Nations, Protecting Human Rights in the Era of COVID-19. (2020.)

 

  • Onyemelukwe, The Law and Human Rights in Nigeria’s Response to the COVID-19 Pandemic (2020) (1).

 

(1) <https://blog.petrieform.law.harvard.edu> assessed 23rd July 2021.

 

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1.8.        Synopsis of the Chapters

 

This study contains five chapters. The first chapter will deal with the background of the study, the statement of the problem, aims and goals of the study, the scope, research methodology, the literature review and the synopsis of the chapters. The second chapter will cover a broad discussion of the concept of human rights, the characteristics of human rights, how the concept of human rights came to be and the development of human rights, what is referred to as an emergency situation and the Covid-19 era as an emergency situation.

Chapter 3 will generally cover the legal and institutional framework regulating human rights in Nigeria, looking specifically at the laws that regulating human rights and their approach to human rights, legal agencies and authorities charged with the responsibility of enforcing human rights, the enforcement of human rights in an emergency situation such as covid-19 and international laws and their influence on the enforcement of laws in Nigeria. Chapter 4 will discuss issues and challenges relating to human rights in Nigeria, the need for human rights laws to be actively pursued in Nigeria. The effect of human rights in the society, challenges of enforcing human rights in emergency situations, the solutions to the challenges of enforcing human rights in emergency situations and the impact of covid-19 on human rights.

The final chapter is concluding chapter, summarizing the work and making findings and recommendations.

FUNDAMENTAL HUMAN RIGHTS AND THE LIMITATIONS IN THE ERA OF COVID19 PANDEMIC IN NIGERIA

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