“Does The President/Governors Have Powers To Lockdown Any Part Of Nigeria Or Restrict Human Rights?” Daily Law Tips (Tip 537) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
Nigeria is a democratic state governed by written laws. Nigeria has laws that governs it during periods of emergency (including, crisis, war, pandemics, natural disaster or similar situations). The three arms of government play different roles at all times and crisis periods are to be managed by them in line with the laws of Nigeria. During crisis, like in the period of COVID-19, human rights including rights to freedom of movement, can be suspended. However, such suspension must and can only be done legally and lawfully by the lawfully designated persons/offices. Are the governors across Nigeria vested with such powers? Can the President of Nigeria restrict any human rights by mere national broadcast? Are illegal suspension of human rights by government binding and enforceable? What are the procedures for proclaiming a state of emergency?
The constitution of Nigeria, confirms the existence of fundamental human rights on every person in Nigeria. Human rights are natural and automatic to all human beings. They are owned by all human beings irrespective of age, class, tribe, office, colour or wealth. Hence, they are not created by the constitution or law, rather the constitution and several other international and regional instruments validate the existence of human rights. Human rights include; Right to Life, Right to Dignity of Human Person, Right to Personal Liberty, Right to Fair Hearing, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peacful Assembly and Association, Right to Freedom of Movement, Right to Freedom from Discrimination and then, Right to Acquire and Own Immovable Property anywhere in Nigeria.
Often, laws are not without exceptions. Human rights are not absolute and impeccable. There are very limited occasions/situations were some/certain human rights may be restricted (suspended). Specifically, six (6) human rights can be restricted by any law in Nigeria, where such law is reasonably justifiable in a democratic society, in the interest of defence, public safety, public order, public morality or public health as well as protection of lives and freedom of other persons. The concerned six (6) human rights are: Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peacful Assembly, Association, Right to Freedom of Movement and Right to Acquire and Own Immovable Property anywhere in Nigeria.
Adding to the above listed rights that can be restricted by law, the are two (2) other rights that can be restricted but in a state of emergency. Rights to Life and Right to Personal Liberty can be restricted but only during periods of state of emergency and in line with an Act made by the National Assembly for measures that are reasonably justifiable for the purpose of dealing with situations that exist during such periods of emergency. However, restrictions to Right to Life must be due to death resulting from wars or ordered by a court of competent jurisdiction.
There is really only three (3) human rights that cannot be restricted or suspended even during periods of state of emergency in any part of Nigeria. They are the Right to Personal Liberty, Right to Freedom from Discrimination and under the Right to Fair Hearing is the Right not to held guilty of a non-existing offence or to be imposed heavier penalties contrary to law. These rights are expressly exempted or omitted from the restrictions to human rights.
Periods of state of emergency are periods where there is in force a Proclamation of State of Emergency that has been declared by the President of Nigeria for Nigeria or any part of Nigeria. Such declaration of the President may be through an instrument published on the Official Gazette of the Government of the Federation. The Official Gazette of the Government of the Federation containing the proclamation must be immediately transmitted to the Senate President and the Speaker of the House of Representatives, for them to convene meeting of parliament to pass a resolution approving or refusing the proclamation of the President. Note that the President can only make proclamation of a state of emergency when the entire Nigeria is at war, in danger of being invaded/war, actual breakdown or in danger of breakdown of public order and public safety across Nigeria or any part to the extent that extraordinary measures are needed to restore peace and security, natural disaster or natural calamity or in danger of such in any community in Nigeria, public danger that may affect existence of Nigeria or upon request from a a governor for state of emergency in his state.
Governor of a state in Nigeria cannot declare or proclaim a state of emergency in or for his state. Rather a governor with legislative resolution supported by two-third majority of his State’s House of Assembly can request the President of Nigeria to declare a state of emergency for his state. State Governor can request for such only where the state is in actual breakdown or in danger of breakdown of public order and public safety to the extent that extraordinary measures are needed to restore peace and security or where there is natural disaster or natural calamity or in danger of such in its’ community. President may refuse to make proclamation for a state, where the state governor fails to make request within reasonable time.
Presidential proclamation for state of emergency can be terminated by the President through an instrument published in the Official Gazette of the Government of the Federation. From the day a Presidential Proclamation for state if emergency is made by the President of Nigeria, within two (2) days where National Assembly is in session or within ten (10) days where the National Assembly is not in session, if there is no approving resolution supported by two-third majority of each house of the National Assembly, such Proclamation will automatically terminate and fail. Where a presidential proclamation for state of emergency is approved by the National Assembly, such proclamation will expire after six (6) months but may be extended by the National Assembly for another six (6) months before expiration of the initial proclamation. Generally, where the National Assembly approves a state of emergency, it can revoke/terminate such through a resolution supported by simple majority of all members of each house of the National Assembly.
In summary, the President of Nigeria has powers to declare state of emergency for Nigeria or part of Nigeria, subject to the approval of the National Assembly. A governor can request the President to proclaim a state of emergency for his state with approval of his state House of Assembly. Where there is state of emergency, some human rights may be restricted/suspended for the public good of all. Since there are constitutional procedures for proclaiming state of emergency and managing public health crisis in Nigeria, such procedure must be followed to avoid possible infringements, unconstitutional conducts and avalanche of litigations.
COVID-19 will be won. Please stay at home!
My authorities are:
1. Sections 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 305, of the Constitution of the Federal Republic of Nigeria, 1999.
2. The Supreme Court decisions in the case of ADEGBENRO v. AG OF THE FEDERATION & ORS (1962) LPELR-25118(SC)
3. The Supreme Court decision in the case of WILLIAMS v. MAJEKODUNMI (No.2)(1962) LPELR-25044(SC)
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