The new corona virus otherwise codenamed COVID-19 originated in December 2019 from Wuhan, China according to the World Health Organisation (WHO) although there are conspiracy theories about its origin. The disease is codenamed COVID-19 meaning Corona Virus Disease (COVID) that originated in year 2019. It is called the new corona virus because there had been corona virus before but this one is different from the earlier one.
The devastating effects of this virus has left in its trail deaths of so many people cutting across the poor and the rich, young and old, male and female, black and white, developing and developed nations alike. Although it has been found out that its effect on the elderly and patients with existing medical conditions is more devastating than in others; it knows no bounds as the virus attacks everyone who comes in contact with it.
Although it has been medically proven that some carriers of the virus show no signs or symptoms, its symptoms include fever, coughing, sneezing, headache, pains, shortness of breath or respiratory track complications among others, there is no yet known cure for it. It is for these symptoms that have made the WHO and medical practitioners to prescribe means of preventing the further spread of the disease, especially because the virus remains on materials or surfaces from a period of time of between two hours and four days, depending on the nature of the object or surface the virus comes in contact with, except if it is disinfected.
The virus is usually transmitted through droplets from an infected person, thus it is a contagion. This has led to governments the world over following the guidelines established by WHO which includes social distancing (that is, leaving 2 meters or 6 feet apart from other persons), use of appropriate surgical or improvised face mask, regular hand washing with soap under running water for at least 20 seconds, use of alcohol based hand sanitizer, coughing and sneezing into one’s elbow or into tissue papers to be immediately disposed of and staying at home. All these necessarily involve some form of limitations on the constitutional rights of the people both those who are diagnosed and not yet diagnosed and confirmed to have tested positive for the disease.
In Nigeria, the fundamental rights of every Nigerian citizen is guaranteed in Chapter IV of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which is hereinafter referred to as “CFRN 1999” for easy reading. These rights are also contained in the African Charter on Human and Peoples’ Rights which was made in Banjul on 19th January, 1981 and ratified by Nigeria on 17th March, 1983.
These fundamental (constitutional) rights are inalienable rights that cannot be taken away from anyone except in some exceptional circumstances. It is these exceptional circumstances that underlie this paper. Let me however quickly add that none of these rights can be taken away at the whims and caprices of any person but only by due process of law. I will now briefly examine some of these rights anon.
- Right to Life
Section 33 of the CFRN 1999 guarantees the right of every person to life and that no person’s life shall be intentionally deprived him except in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria and when he is denied of his life by use of reasonable force to effect his lawful arrest or prevent his escape from lawful custody, among others. The question here is can a COVID-19 patient who escapes from a lawful quarantine be said to have been deprived his right to life if having escaped from such lawful custody is shot at and mistakenly killed whilst running into a densely populated market? The answer would depend on the facts of the case. If the security agent that shot aimed to shoot to main and not kill but mistakenly shot him in his back and the bullet hits his heart leading to his death, he may not be established to have been unconstitutionally denied his right to life.
The duty a person diagnosed of COVID-19 has to the state is to remain in the lawful custody in quarantine until lawfully discharged in order not to spread the disease. It must be mentioned that there are no rights without obligations and where a citizen’s rights end is where another’s start. When a patient breaches his duty to the state, he is taking a risk. In Ndubuisi v. State (2018) LPELR-44908 (SC) the right to life was found by the courts to have been unlawfully denied the two deceased killed by the appellant, one of the Bakassi Boys vigilante group members without due process of the law and his conviction and sentence affirmed by the Supreme Court.
Although it has been held by the High Court of Enugu State in Ogbe v. Attorney-General, Enugu State [2016] All FWLR (Pt. 819) 1160 that the right to life includes the right to the means of livelihood, it is doubted if a citizen who has been unable to feed due to the lockdown order of the Federal Government or of any state of the federation can succeed in an action for the enforcement of his fundamental right to life for starving due to absence of palliatives from the government. My doubt is predicated on the fact that Chapter II of the CFRN 1999 which would have been the anchor for this right is not justiciable. Secondly, the decision of the Enugu State High Court is only persuasive to any other High Court even of Enugu State as they are courts of equal jurisdiction. It is hoped that the Enugu State government will test the case on appeal.
- Right to Private and Family Life
Section 37 of the CFRN 1999 provides that “the privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”
This provision means among others that a person who tests positive to COVID-19 has a constitutional right for his medical status and identity to be kept private and not made public except he so choses. However, this appears not to be the case of some COVID-19 patients who have been taken away from their place of residence to be quarantined.
However, section 45 (1) of the CFRN 1999 provides that this right can be taken away in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons. So, if the release to the public of such private information about a citizen is for any of these reasons, the right is not breached.
In Federal Republic of Nigeria v. Daniel (2011) LPELR-4152(CA) the Court of Appeal held that this right is not breached by the provisions of section 41(1) of the National Drug Law Enforcement Agency Act, Cap. N30, Laws of the Federation of Nigeria 2004 that allows relevant law enforcement officers to enter and search without warrant any land, building or carrier, including aircraft, vehicle or container, etc reasonably believed to be connected with the commission of an offence under the Act, arrest any person reasonably believes to have committed an offence under the Act. The Court of Appeal held that section 41(1) of the Act is not in conflict with section 37 of the CFRN 1999 because it is reasonably justifiable in the interest of public safety and public health.
- Right to Peaceful Assembly and Association
This right is guaranteed under section 40 of the CFRN 1999 and provides that “Every person shall be entitled to assemble freely and associate with other persons…” The question now is whether this right can be taken away from a person who tested positive to the COVID-19.
To start with, by virtue of the lockdown of the entire nation, the right to peacefully assemble and associate is taken away from everyone resident in any of the states and FCT affected by the lockdown order(s) howbeit on a temporary note.
Secondly, the right of a COVID-19 patient who is kept in quarantine to peacefully assemble and associate with others is taken away from him whether or not there is lockdown. However, there is a corresponding duty on a COVID-19 patient to submit himself to the state to be quarantined. However, the public office holders who were diagnosed of the virus and who made their status public and went on self-quarantine seem to be suggesting that a COVID-19 patient can chose to self-quarantine.
The provision of section 45(1) of the CFRN 1999 clearly gives the state the right to temporarily take away this right of a COVID-19 patient until he recovers sequel to the provisions of the Quarantine Act 1922 and the Regulations made thereunder because that Act is justifiable in a democratic society in the interest of public health and for the purpose of protecting the rights and freedom of other persons.
- Right to Freedom of Movement
The right to freedom of movement guaranteed under section 41 of the CFRN 1999 is akin to the right to peaceful assembly and association in section 40 CFRN 1999 discussed above. The section provides that every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
It is without doubt that this right is not an absolute right because section 45(1) of the CFRN 1999 makes laws that is justifiable in a democratic society in the interest of public health and for the purpose of protecting the rights and freedom of other persons constitutional when such laws take away this right. Therefore, it is incumbent on a COVID-19 patient to remain in isolation until certified to have recovered by the state.
With the spread of the COVID-19 to other states of the federation we saw more states imposing restrictions on movements within their respective states. We witnessed how the River State arrested and arraigned Caverton Helicopters’ pilots. We heard of how some individuals protested their incarceration in Benue and Delta States. All they seem to be saying is that they have been denied their right to freedom of movement among others. But whether they can truly succeed in a lawsuit against the states on this ground is yet to be seen in view of the provision of section 45(1) of the CFRN 1999.
- Right to Fair Hearing
Another right guaranteed under the CFRN 1999 is the right to fair hearing guaranteed by section 36 of the CFRN 1999. A fundamental question is that if a COVID-19 patient choses to contest the result of his test and seeks to do that through the court, could he have had access to the court in view of the lockdown? The answer to this seems to be of significance in the determination by government of whether or not to classify legal services as “essential services” because access to justice is key. So, not only is a COVID-19 patient who seeks to access the court prevented and thereby denied his right to fair hearing, persons who were arrested, prosecuted and summarily convicted by courts without allowing them access to legal representation are equally denied their right to fair hearing.
The Quarantine Act 1926 and the Rights of COVID-19 Patients
The Quarantine Act 1926 as amended in 1954 is made applicable under section 45 of the CFRN 1999. Section 4 of the Act empowers the President to make regulations for the purpose of (a) prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area; …(c) preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria; … (e) prescribing the powers and duties of such officers as may be charged with carrying out such regulations among other powers.
It is in pursuance of these powers that the President made the COVID-19 Regulations 2020 made 30th March, 2020 leading to the setting up of the Presidential Task Force on COVID-19 and the eventual lockdown and extensions thereof.
Section 6 of the Act empowers the President and Governors to provide such sanitary stations, buildings, and equipment, and appoint such sanitary anchorages as he may think necessary for the purpose of the Act.
Whereas section 5 of the Quarantine Act prescribes a fine of N200 and or six months imprisonment for contravention of any of the Regulations made under the Act, it has been noted that non-custodial sentences and or fines in excess of the amount prescribed by the Act have been meted out to offenders appearing in court. As a matter of fact, the Honourable the Chief Judge of the High Court of the FCT has made a Practice Direction for non-custodial sentences, citing reason of the need to not put the inmates in the different correctional facilities to the risk of infection by COVID-19. As thoughtful and reasonable this might be, it is yet to be seen how a Practice Direction which is a subsidiary legislation will override the express provision of an Act of National Assembly which is a substantive legislation.
Conclusion
In discussing the rights and obligations of a COVID-19 patient, it is important to state that some constitutional rights of such may be temporarily denied or suspended by due process of law as enumerated under section 45(1) of the CFRN 1999 in the interest of public health and for the purpose of protecting the rights and freedom of other persons.
This in turn calls to mind the duty on government to provide the needed palliatives to the suffering and hungry masses who have been forced to stay home sequel to the lockdown order by government. This duty is both a legal and moral one. Legal burden because section 14(1)(b) of the CFRN 1999 makes the security and welfare of the people the primary purpose of government. Although this section of our Constitution has been held to be not justiciable, this invariably places a moral burden on government.
Moral burden because before the pandemic, well over 100 million of the 200 estimated population of Nigeria live below poverty line on less than $200 a day. Added to this, majority of these earn daily wages and scarcely have savings. Locking the country down further worsens the misery of the ordinary citizens and makes it incumbent on government to provide some cushioning of the effects of the lockdown on them.
It is unfortunate however that despite the hype of distribution by government agencies responsible for this, the much needed palliatives have not reached the majority of Nigerians who desperately need them. It is yet to be seen if any public interest litigation will be initiated to claim damages or redress for breach of any one or more of these constitutional rights.
Emmanuel S. Oluwabiyi, Esq., pnm,
a legal practitioner based in Abuja can be reached at es.oluwabiyi@oluwabiyi.com.ng