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The protection and preservation of the fundamental human rights of the citizens of a country is one of the hallmarks of democracy. All the human rights as captured in chapter 4 of the 1999 Constitution of Nigeria are important. But the right to life, which is the first human right that was stated in section 33 of chapter 4, is the most important of them all because one has to be alive to enjoy other rights conferred by the constitution. Protecting the citizen’s right to life, therefore, is the primary purpose of government. This is why Section 14(2)(b) of the 1999 Constitution states that “the security and welfare of the people shall be the primary purpose of government”. The dictionary defines primary as first or highest in rank or importance.
Following the outbreak of the coronavirus, also known as covid-19, and its devastating effect on the health and lives of the citizens of the world and conscious of the entrance of the virus into Nigeria and its gradual spread across the country, President Buhari addressed the nation on the 29th of March, 2020 in which he marshaled out points and strategies geared towards the prevention, containment and cure of the viral disease to mitigate its effect on the citizens and the economy. The contents of the broadcast were subsequently codified into 
regulations on the 30th March, 2020, pursuant to the extant Quarantine Act to the effect that Lagos, Ogun and the Federal Capital Territory (FCT), being the worst hit and the most prone to the virus, were locked down for the initial period of 14 days. Other restrictive measures were also imposed on transport and commerce nationwide. Some exemptions were made to accommodate those in health, media, food, power, petroleum, banking, judicial, private security services and so on. In the words of Mr President, “we will use this containment period to identify, trace and isolate all individuals that have come into contact with confirmed cases. We will ensure the treatment of confirmed cases while restricting further spread to other states.” Palliative economic measures were enunciated to cushion the effects of the lockdown on the most vulnerable.
There have been series of debates on the legality of these regulations, which will inevitably curtail or impinge on the fundamental rights of the citizens. Everybody seem to agree on the need for the President to make regulations that will guide the activities of everyone and every institution during this period of the corona logjam and give legal backing to its execution. This is more so important because our constitution made it clear that you cannot punish any citizen for any offence not found in our written law. Making the regulations therefore provides the enabling environment for the government to be able to punish the offenders and deter others from disregarding the provisions of the regulations. Section 5 of the Quarantine Act states that “any person contravening any of the regulations made under this Act shall be liable to a fine of N200 or to imprisonment for a term of six months or to both.” Simply put, without regulations, there cannot be penalties and without penalties, the offenders cannot be punished in accordance with Section 36(12) of the Constitution and without punishment the regulations are unenforceable because there will be no deterrence.
The most contentious issue is whether it is necessary to declare a state of emergency before making the regulations, without which declaration, the regulations are invalid. Let us note that Section 5 of the Constitution vests the executive powers of the Federation in the President and these powers extend to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws. The test of legality of any regulation by the President is whether it accords with the provisions of the Constitution or any Act of the National Assembly. If it accords with any Act of the National Assembly, then one must ask whether the provisions of the Act are consistent with the provisions of the Constitution. If the provisions of the Act are inconsistent with the provisions of the Constitution, then the regulations are void to the extent of the inconsistency with the provisions of the Constitution. The Quarantine Act upon which the President based the proclamation of his regulations is unarguably an Act of the National Assembly. There is nothing in the Act that contravenes the provisions of the Constitution. Indeed, copious provisions of the Constitution support the relevant provisions of the Quarantine Act. Section 45(1) justifies the Quarantine Act, even if it derogates on the fundamental rights of the citizens, on account that it protects the public health and safety of citizens. Section 35, which protects the right to personal liberty of citizens, supports the Quarantine Act, even if it derogates from the fundamental right to liberty of the citizens, on account that it guarantees the care and treatment of persons suffering from infectious or contagious disease and the protection of the community. The lockdown of some parts of the country is a shield for the other parts not yet infected and the stay at home order is a prevention of the infection from affecting the healthy ones against this rampaging disease that has no cure. The regulations of the President, without a declaration of a state of emergency, pursuant to the Quarantine Act, are perfectly legal and should be complied with in their entirety.
It is a bit disturbing to see some legal luminaries rush to instigate the declaration of a state of emergency by the executive to take care of any irritation in our society. This tendency is with due respect a bit misguided. First, the proclamation of a state of emergency requires an approval from the National Assembly which is more stringent to obtain than the requirements of enacting ordinary laws. A state of emergency, in Section 305(6)(b) of the Constitution, requires the support of two-thirds majority of the National Assembly before it can take effect as a legitimate instrument of executive governance. In this era where the health of everybody is at risk it makes no sense summoning the National Assembly to come and risk their lives and do a job which an extant law has already taken care of. Secondly, the declaration of a state of emergency is done to tackle a situation that constitutes a clear threat and present public danger to the existence of the federation like when the federation is at a violent war or the occurrence of any disaster or natural calamity that can lead to a total breakdown of law and order if a state of emergency is not declared. A state of emergency is not ordinarily meant for prevention, it is meant for cure. It is not a shield, it is a sword. It is supposed to be an instrument of last resort because the Constitution in Sections 305 and 45(2)(3) grant the executive very wide powers, including using extra-ordinary measures, which can lead to the derogation from the right to life and liberty of citizens to bring the abnormal situation to an end. The state of emergency anticipates a violent uprising, resulting from an insurrection or effect of a natural disaster on the people capable of threatening the existence of the federation which the government requires extraordinary powers not specified in any law to deal with. The response of the government in an emergency always lead to collateral damage on the citizens because most times it involves the use of force.
We must avoid the temptation of comparing our country to other advanced countries which cannot misuse the powers of a state of emergency even if it is declared in those countries. During Obasanjo’s regime, he declared a state of emergency in Plateau State on the excuse that the Governor could not maintain law and order in his state as a result of the violence that engulfed the state when it was actually the duty of the Federal Government to maintain law and order in the Plateau and there was no evidence that the FG deployed the troops to Plateau to quench the violence and was resisted by the Plateau Governor. The Governor and all the democratic institutions in Plateau were suspended for 6 months. I cannot remember anytime a state of emergency was declared in America and any elected officer was affected by the declaration. It is submitted, therefore, that any Act, law, proclamation or regulation, which is capable of derogating from the right to life and liberty of Nigerians, as a proclamation of state of emergency can do, should be reluctantly advocated for and allowed in a democracy as solution to any abnormal situation in the country.
