Governor Wike, COVID-19 and the “Doctrine of Necessity”, By Inibehe Effiong
Governor Wike and others cannot just wake up and ban entry into and exit from a state through executive fiat. Similarly, lockdown cannot be enforced without legal basis. Freedom of movement is a fundamental right guaranteed by Section 41 of the Constitution. It is not a right that can be taken away under any circumstance without clear legal basis.
Let me begin by saying that the views expressed in this article are not solely targeted at Governor Nyesom Wike of Rivers State. It extends to the federal government and all governors in Nigeria who have taken restrictive actions similar to the fiat issued by Wike banning entry into and exit from Rivers State by air, land or sea. I am using Rivers State as a case study, given the far reaching dimension of Wike’s statement.
Some public commentators, including, unfortunately, some lawyers, have been making this ridiculous argument that laws can be totally dispensed with and that constitutional and statutory provisions are useless when there is emergency. They base their argument on what they vaguely call “the doctrine of necessity”. I find this argument very offensive and irritating. But I will just make this brief remarks in response.
The duplicity of this argument is exposed by a simple reply: If there is emergency in Nigeria, whether due to external or internal aggression, natural disaster, the outbreak of infectious diseases or any other cause, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), empowers the president to declare a state of emergency throughout the federation or any part thereof.
One cannot say that there is an emergency because of COVID-19 and at the same time repudiate my call for the declaration of a state of emergency. That amounts to approbating and reprobating. It is a case of speaking from both sides of the mouth. The framers of the Constitution were not stupid when they enacted Section 305 of the Constitution, which imbued the president with extensive powers to declare a state of emergency when the need arises.
Also, there are ample provisions under our extant laws on how to respond to emergencies. The legally permissible thing for any democratic and sensible government to do is to simply invoke the extant laws or to pass new emergency laws.
In the United States, President Trump declared a national emergency throughout the United States. Not less than 48 states in the U.S. have declared emergencies. The U.S. Congress recently passed the Families First Coronavirus Response Act. Trump also invoked the Defense Production Act. A few hours ago, the U.S. Congress passed yet another emergency relief Bill to tackle coronavirus. On Monday, the United Kingdom’s parliament passed emergency legislation to give the government the needed power to enforce restrictions and fight coronavirus. Other serious democratic countries have also declared national emergencies and passed emergency legislations.
Why should the case of Nigeria be different?
Those who say that we should not talk about laws when there is an emergency are either advocating the entrhonement of anarchy or oblivious of what it means to run a constitutional democracy.
It is either we operate under the rule of law or we perish under the rule of force.
The so-called doctrine of necessity referenced by some commentators, which they falsely claim empowers the government to ignore laid down rules during crisis, is a legal fiction under a constitutional democracy.
The expression “doctrine of necessity” came into our lexicon in Nigeria in 1970 in the famous case of Lakanmi versus Attorney General of Western Region. I will not go into the long facts of the case. I will only highlight a few key points from the judgment to buttress my submissions.
…the so-called “doctrine of necessity” has no basis in a constitutional democracy. We cannot talk about necessity when there are relevant legal provisions to cater for emergency cases. The only necessity in such cases is invocation of the law. There is no judicial precedent that supports the argument that laws can be dispensed with during an emergency…
First, the Supreme Court in Lakanmi’s case decided in favour of fundamental rights and rejected the argument of the military regime that it can take away any fundamental right by Decree, Edict and use of force without legal challenge.
Second, the military sought to take away Lakanmi’s properties by Decrees and Edicts (laws), not by force. The military regime in the West at the time passed the Public Officers and other Persons (Investigation of Assets) Edict No 5 of 1967, under which Lakanmi was investigated and found guilty of corrupt practices.
As brutal as military regimes were, they mostly relied on draconian decrees and edicts to violate the rights of citizens. It is therefore palpably shocking that citizens in a ‘democracy’, will support the wilful derogation of their fundamental rights without an appropriate legal framework enabling same.
Third, the Supreme Court held that the military regime was not a revolutionary regime but a temporary emergency regime which came about by doctrine of necessity due to abdication by the civilian government. Note that the military enacted Decrees before it sought to take over Lakanmi’s properties. Therefore, citing the “doctrine of necessity” to say that laws are dispensable is unfounded.
Fourth, the so-called “doctrine of necessity” has no basis in a constitutional democracy. We cannot talk about necessity when there are relevant legal provisions to cater for emergency cases. The only necessity in such cases is invocation of the law. There is no judicial precedent that supports the argument that laws can be dispensed with during an emergency; except there is a special constitutional or statutory provision in that regard.
Fifth, following the Supreme Court decision in Lakanmi’s case, the Gowon regime swiftly annulled the judgment by promulgating Decree 28 of 1970 – The Federal Military Government (Supremacy and Enforcement of Powers) Decree.
When the National Assembly, on February 9, 2010, passed a resolution empowering the then Vice President Goodluck Jonathan to assume the functions of the office of President in an Acting capacity due to the critical illness of the late President Yar’Adua, they did not act completely without the law. They relied on the extant Section 145 of the Constitution at the time. The National Assembly only referenced the “doctrine of necessity” because Yar’Adua did not transmit a physical letter to the National Assembly.
It is therefore wrong to cite that resolution by the National Assembly as a validation of the proposition that a doctrine of necessity can supplant the law. It was the lacuna in Section 145 of the Constitution (which was later amended) that prompted that consequential resolution. If there was no lacuna, the National Assembly would not have said anything about a nebulous doctrine of necessity.
Section 305 of the Constitution and the Quarantine Act are expressly clear on how the government should address threats to public health and public safety. There is no lacuna whatsoever. It is therefore disingenuous to talk about a doctrine of necessity due to coronavirus, when the laws are not in doubt as to what should be done.
I dare say that there is no court in Nigeria today that will accept the ridiculous argument that validly made laws can be dispensed with on the basis of a so-called “doctrine of necessity”.
As stated by the Supreme Court: “Under a Constitution granting specific powers, a specific power must be granted before it can be exercised” – Per Obaseki, JSC, in the celebrated case of Attorney General of Bendel State vs. Attorney General of the Federation & Ors. (1981).
Can governor Wike stop people from entering Rivers State through federal roads, given the state of the law? Mr. Wike said that he cannot stop people from landing at the Port Harcourt International Airport, but that those who defy him must remain at the airport. Is that not ridiculous? What will he do to anyone who defies him? Under what law and for what offence..?
Nigeria is now in a constitutional democracy. Section 1 (1) of the Constitution states that, “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. It is trite that where the law prescribes a particular method by which an is to be done, only that method must be used. See Orube V. NEC.
Governor Wike and others cannot just wake up and ban entry into and exit from a state through executive fiat. Similarly, lockdown cannot be enforced without legal basis. Freedom of movement is a fundamental right guaranteed by Section 41 of the Constitution. It is not a right that can be taken away under any circumstance without clear legal basis. Section 45 of the Constitution which limits the right to freedom of movement can only invoked through legislation. See the case of Director, SSS v. Olisa Agbakoba (1999) 3 NWLR (Pt . 595) 314.
Can governor Wike stop people from entering Rivers State through federal roads, given the state of the law? Mr. Wike said that he cannot stop people from landing at the Port Harcourt International Airport, but that those who defy him must remain at the airport. Is that not ridiculous? What will he do to anyone who defies him? Under what law and for what offence will the person be charged? This is why laws are important.
Governor Wike could have simply asked the president to declare a state of emergency in Rivers State, pursuant to Section 305 (4) of the Constitution. Alternatively, he could have either made enabling regulations pursuant to Section 8 of the Quarantine Act of 1926 or sent an emergency executive Bill to the House of Assembly to empower him to take such measures.
The Court of Appeal in the celebrated case of Faith Okafor V. Lagos State Government & Anor. 2016) LPELR-41066 (CA) made it abundantly clear that the directive or order of a governor is not a law and that violation of this cannot attract criminal sanctions. That was a case where the government of Lagos State imposed a restriction on movement over environmental sanitation (for the protection of public health). The arrest of citizen Faith Okafor for violating the order was declared illegal and unconstitutional.
It is reprehensible for a governor who claims to be democratically elected to ignore clear legal provisions in such a brazen manner.
I am not saying that there should be no restriction to movement due to coronavirus. My objection is to the apparent disregard for the due process of law and constitutional provisions. It is pedestrian to say that we should not talk about laws.
If Nigerians are tired of democracy, they should demand for a communist state or absolute monarchy where the will of the rulers are supreme. But as long as we continue to operate under a constitutional democracy, those who took oath with the Bible and the Quran “to uphold, protect and defend” the Constitution and the law must keep their oath.
It is the same Constitution that guarantees the right to life under Section 33 that people are saying we should discard. If we are tired of the rule of law, we can abolish the Constitution in its entirety and live like animals without rules. We cannot be professing civility, while supporting illegality and impunity.
I insist that there is nothing difficult in following the law. It should not take more than a day to comply with the Constitution or the Quarantine Act. The incompetence and gross irresponsibility of our leaders cannot be the basis for justifying anarchy and impunity. All serious countries have invoked or enacted emergency laws to tackle coronavirus.
Long years of military dictatorship should not make us to forget so easily that some people sacrificed their lives to chase the military out of power. Absolute power corrupts absolutely.
Inibehe Effiong is a Lagos-based lawyer and Human Rights Activist and can be reached on: email@example.com