Nigerian playwright, Prof. Wole Soyinka, and a human rights lawyer, Mr. Femi Falana, on Monday, faulted President Muhammadu Buhari’s lockdown order in the Federal Capital Territory, Lagos and Ogun states.
Buhari had in a broadcast on Sunday ordered the complete lockdown of the FCT, Lagos and Ogun states as part of measures to curb the spread of COVID-19.
But Prof. Wole Soyinka, in a statement on Monday titled, ‘Between COVID-19 and constitutional encroachment’ signed from his Autonomous Residence of Ijegba, Ogun State, where he’s on ‘self-quarantine’, said the country was not in a war emergency.
He said, “Constitutional lawyers and our elected representatives should kindly step into this and educate us, mere lay minds. The worst development I can conceive is to have a situation where rational measures for the containment of the COVID-19 pandemic are rejected on account of their questionable genesis. This is a time for unity of purpose, not nitpicking dissensions.
‘Does President Buhari have the powers to close down state borders?’ We want clear answers. We are not in a war emergency. Appropriately focused on measures for the saving lives and committed to making sacrifices for the preservation of our communities, we should nonetheless remain alert to any encroachment on constitutionally demarcated powers. We need to exercise collective vigilance, and not compromise the future by submitting to interventions that are not backed by law and constitution.”
“Who actually instigates these orders anyway? From where do they really emerge? What happens when the conflict of the orders with state measures the product of a systematic containment strategy — including even trial-and-error and hiccups — undertaken without let or leave of the center.”
According to the Nobel laureate, so far, the anti-COVID-19 measures have proceeded along the rails of decentralized thinking, multilateral collaboration and technical exchanges between states.
He added, “The center is obviously part of the entire process, and one expects this to be the norm, even without the epidemic’s frontal assault on the Presidency itself. Indeed, the center is expected to drive the overall effort, but in collaboration, with extraordinary budgeting and refurbishing of facilities.
“The universal imperative and urgency of this affliction should not become an opportunistic launch pad for a sneak re-centralization, no matter how seemingly insignificant its appearance.”
Presidential order not enforceable – Falana
On his part, Falana said the no-movement order in the FCT, Lagos and Ogun states was not enforceable.
The human rights activist said the order had no legal backing and therefore unconstitutional.
He argued that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly.
Falana said, “No doubt, the President is empowered to adopt any measures deemed fit to combat the dangerous disease but such measures have to be spelled out in a regulation made pursuant to section 305 of the Constitution or under the Quarantine Act.
“Otherwise the presidential order on the restriction of movement in the affected areas cannot be enforced by the police.
“Even though the civil rule was restored in the country 21 years ago, the psyche of the political class has not been demilitarised. Hence, decisions taken by rulers are required to be obeyed ‘with immediate effect’ without any legal backing.”
Falana said there were precedent cases that explained why the order could not be enforced.
He stated, “But in Okafor v Governor of Lagos State (2016) LPELR-41066 (CA) the Court of Appeal called on all authorities to appreciate the need to govern the country under the rule of law.”
“Thus, the directive of the governor of Lagos State restricting the movement of citizens and residents during the State’s monthly environmental sanitation exercise was struck down because of its unconstitutionality.
“It was the unanimous view of their Lordships that the arrest of Appellant for flouting the order or directive of the Governor was completely illegal. According to George will, J.C.A. “
He faulted lawyers saying that the law should be completely relegated to the background in combating the coronavirus pandemic.
He said, “It reminds me of the dissenting judgment of Lord Atkins in the case of Liversidge v Anderson 1944 UKHL 1. While accusing his learned brethren of being “more executive minded than the executive”, his Lordship said inter alia:
“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on the recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”
Falana called on the Federal Government to shelve the idea of sending the military to the streets to enforce the no-movement order.
He said, “While the nation’s armed forces should be commended for making their medical facilities available to members of the public in the fight against the highly dangerous virus, the plan to dispatch armed soldiers to the streets to enforce the COVID-19 guidelines should be shelved because it is illegal.
‘For the umpteenth time, I am compelled to draw the attention of the military authorities to the case of Yussuf v Obasanjo (2005) 18 NWLR (Pt ) where Salami JCA (as he then was) held that ‘it is up to the police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarized.
“This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious steps should be taken to civilianize the polity and thereby ensure the survival of and sustenance of democracy.”
The Lagos lawyer said, rather, the federal government should deploy more soldiers in confronting the Boko Haram terrorist group instead of unleashing them on the innocent citizens seeking their livelihood.