*How To Legally Declare State Of Emergency Over Covid-19 In Nigeria Or Any State. * Daily Law Tips (Tip 570) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
There is great difference between lockdown and state of emergency in Nigeria. Lockdown can arguably by triggered by a state Governor over his state or part of his state and the President of Nigeria can trigger a lockdown across Nigeria or in a part of Nigeria, by relying on the Quarantine Act, 1926 or any related public health law, among others. In the contrary, a state Governor cannot declare as a state of emergency in any state or part of any state. Rather the President of Nigeria can declare a state of emergency in the whole or part of Nigeria, although with approval of the National Assembly.
By the constitution of Nigeria, 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 the whole of 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 such 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.
There are clear constitutionally approved situations/circumstances that can trigger a state of emergency in Nigeria. The President can only make a proclamation of a state of emergency in any of the following situations;
1. Where the entire Nigeria is at war, in danger of being invaded/at war;
2. Where there is actual breakdown or 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,
3. Where there is natural disaster or natural calamity or in danger of such in any community in Nigeria,
4. Where there is any other public danger that may affect the existence of Nigeria
5. Where there is a request from a Governor of a state seeking for a state of emergency in his state.
The World Health Organisation, declared Coronavirus (COVID-19) as a pandemic. Nigeria has recorded over 163 deaths connected to COVID-19 and almost all states in Nigeria have recorded cases of COVID-19. There has been lockdown in major cities in Nigeria by federal government and in more states by state governments. Airports across Nigeria are closed while only few businesses operate on selected days, since the after lockdown. Obviously, the COVID-19 is a natural disaster and calamity, which is sufficient constitutional grounds for federal government to declare a state of emergency across Nigeria or in any part of Nigeria. It is also adequate constitutional basis for a state government to seek for declaration of state of emergency from the federal government across its state or part of its state.
A Governor with a 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. The 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 his/her community. The President may refuse to make proclamation for a state of emergency, where the Governor fails to make request within reasonable time. However, even where the President makes proclamation of state of emergency following the request of a Governor, the approval of the National Assembly is still needed for such proclamation to continue being in force.
As shown above, proclamation of state of emergency by the President of Nigeria needs the approval of the National Assembly to remain in force. 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. 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.
For love of human rights, it must be stated that all human rights may be restricted during state of emergency, except; 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 three fundamental human rights are expressly exempted or omitted from the restrictions on human rights, in the constitution of Nigeria.
Conclusively, while the President of Nigeria can declare state of emergency for Nigeria or part of Nigeria, same is 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. Also, this proclamation needs the approval of the National Assembly to remain valid. The needed approval of the National Assembly must be obtained within 2 days when the legislature in session and 10 days when it is not in session (may be on vacation). It is advised that if for any reason, government decides to declare state of emergency, it must do such constitutionally and with deep respect for human rights.
The writer is not unaware of COVID-19 pandemic and governments interventions to end it. The security and welfare of the good people of Nigeria are the primary purpose of government, however government must be lawful and law abiding in achieving such purpose. It is advised that constitutional procedures and statutory processes should be engaged at all times to avoid causing more problems in attempting to solve one. We must conquer COVID-19 without violating fundamental human rights of Nigerians. Stay at Home and Stay Healthy.
My authorities are:
1. Sections 1, 4(3), 14, 20, 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. Item 54 of the Exclusive Legislative List, Second Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria, 1999.
3. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act of 1926.
4. Provisions of the COVID-19 Regulations 2020.
5. The Supreme Court decisions in the case of ADEGBENRO v. AG OF THE FEDERATION & ORS (1962) LPELR-25118(SC)
6. The Supreme Court decision in the case of WILLIAMS v. MAJEKODUNMI (No.2)(1962) LPELR-25044(SC)
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