Ever since the outbreak of the pandemic, COVID-19 in Wuhan, China in December 2019, the course of the activities of the world drastically changed. The views of people, corporate bodies, states and the international community, their perceptions of things and events, their actions and inactions have not been indifferent to the evolution of events.
This virus whose general symptoms are fever, dry cough and tiredness has gained world attention through its devastating effect of over 400 000 cases with over 16 000 deaths in a time frame of less than three months approaching the record of the 1918 Spanish flu. These statistics have left the world in a state of uncertainty or at worst anticipation of doom.
In as much as the economic, social, cultural, religious and psychological life of the people are affected, so will their legal institution be because it is a product of these factors. This give rise to the question of the constancy of the rights of humans; the healthy and especially the victims of the COVID-19. This article will attempt to answer this question within the legal context of Nigeria.
On the 27th day of February 2020, being roughly three months after the outbreak of COVID-19 in Wuhan, China, the first case was confirmed in Nigeria. The patient, an Italian citizen, was immediately transferred to the Lagos State Biosecurity Facilities for isolation and medical care by the Nigerian Center for Disease Control and Prevention (NCDC) which is the sole body as authorized by law to operate quarantine services and station at points of entry in Nigeria as provided in Section 4 (c) of its establishing act; the Nigeria Center for Disease Control and Prevention Establishment Act, 2018. Subsequently, those with whom the patient came into close contact were subjected to the COVID-19 test whom eventually were confirmed negative and consequently discharged. This was the first incident portraying what the Nigerian government would do in the case of a confirmed infected person and a suspected one.
This single act of government roused a series of question in the minds of human rights analysts firstly as to the rights of the affected person while in isolation or confinement, secondly as to the rights of some categories of people termed potential suspect carriers and thirdly as to the general public whose rights would obviously be affected.
Effects on the rights of the COVID-19 patient
The National Health Act, 2004 is the main body of legislations on public health in Nigeria apart from its 1999 Constitution which makes reference to public health in Section 17 (c) and (d) placing them under the social objectives of government. Although the constitution doesn't create the right to medical services as a fundamental right like those contained in Chapter IV, the National Health Act, 2004 , the African Charter on Human and Peoples' Rights (Ratification and Enforcement) Act and the Patients' Bill of Rights, (PBoR) 2018 elevates it to a near status of fundamental right of Nigerian citizens. This therefore guarantees the right of the COVID-19 patient to medical care although this service may not be free of charge because the law doesn't accord to the disease a special status and since no disease enjoys free medical care in Nigeria, COVID-19 is also to be treated as any other disease unless when the Minister charged with the responsibility for matters relating to health in consultation with the National Council on Health as empowered by Section 3 of the National Health Act, 2014 exempts such categories of people (COVID-19 patients) from payment for health services in public health establishments.
While Section 35 and Section 41 of Nigeria's 1999 constitution guarantees the right to personal liberty and the right to freedom of movement, the same Section 35 and Section 45 set limitations to these rights which amongst them includes the interest of public health. It is therefore in accordance to these provisions coupled with those of the Quarantine Act and on the premise that the disease is highly communicable that the isolation, confinement or rehabilitation of such affected persons are effected.
Isolation, confinement or rehabilitation by the government here means restriction of one's movement to a defined geographical location and or separation from other people which usually than not involves relocation. It also includes excuse and discharge from some legal, para-legal and non-legal engagements of the isolated or confined individual which might include trials, fulfillment or discharge of one's legal responsibilities and public duties, social, economic, political, religious, cultural activities etc.
However, that one is in isolation doesn't invalidate other rights of the individual (this is so because such person remains human) most especially the dignity of his person. Section 34 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria in respect to the right to dignity of human persons provides that "no person shall be subject to torture or to inhuman or degrading treatment".
This, in application to the patient, means that the place of isolation as shall be provided by the government through NCDC must not be deemed to be subjecting the patient to inhuman or degrading treatment, it must be a conducive place meet for rapid recovery. The basic needs for nutrition and shelter must be provided just as is provided for prisoners although here with much care and attention.
An isolated person may not be entitled to visitation by anybody apart from the medical personnel even if the intended visitor consents or wants to visit by self-volition except if it can be provided that a contact with such patient will not get the other party infected. This is because such an act may be interpreted to be an attempt to kill oneself which is prohibited under section 327 of the criminal code of Nigeria.
Other rights which the patient enjoys are those applicable to every patient as set out in Section 19, 20, 23 and 26 of the National Health Act, 2014 which includes the rights to evaluate the services of health establishments, instant emergency treatment, right to have full knowledge of his health condition and necessary treatment, confidentiality of his data i.e. his status must not be made public except at his bidding, right to refuse health care among others.
Being in isolation or confinement, one is not liable to any default in the fulfillment of one's legal responsibilities outside the area of isolation which might include reporting to work, appearing before courts, fulfilling one's responsibility towards one's wards etc. However, any legal responsibility which can be carried out from one's place of isolation remains binding on the patient. This includes respect for constituted authorities, respect and devotion to the country and its national symbols, non-aggression of fellow citizens (fellow patients) etc.
Effects on the rights of the COVID-19 suspect
All those who were suspected to have come into contact with the Italian were subjected to the COVID-19 test. This might have been against their own wish. However, what is the position of the law regarding this?
Always, in the interest of public health, the government can limit one's right to personal liberty and to freedom of movement as provided by sections 35, 41 and 45 of the constitution and Section 4 and 8 of the Quarantine Act which enables the President and the Governor of any state respectively to make regulations for some specific points all in the interest of preventing the spread of a disease. While such tests may be free in a situation whereby one is subjected to it by the government, it may not be free in the contrary situation whereby the individual seeks such by self-volition.
As a potential suspect carrier, one may be asked to self isolate or be placed on quarantine by NCDC. It is important to note that such action is utterly legal as NCDC is granted exclusive powers under Section 4 (f) of its establishing act to do all such things as may be necessary for or incidental to the performance and discharge of its functions and duties under the Act with its function being primarily to prevent, detect, monitor and control diseases of national and international public health importance, including emerging and re-emerging diseases.
Effects on the rights of the general public
While the outbreak visited the country unexpectedly which led to the implementation of desperate policies and measures, this policies were not without effect on the general public particularly on their rights. Among such measures implemented directly affecting human rights included closure of all educational institutions, curfews, total lockdowns of some areas, border closure, shut down of courts of laws etc.
The right to education, a fundamental human right of the United Nations Declaration of Human Rights and of the African Charter on Human and Peoples' Rights which Nigeria is adherent to was breached, curfews imposed limited the freedom of movement of people, the border closure and outright ban on some countries from traveling to Nigeria affected Nigerian citizens living abroad from coming back home, the right to be heard in a court within a reasonable time was breached with the closure of court facilities etc.
However, while all these considerations are foregoing, it is pertinent to note that every Nigerian citizen stand the chance to lose all his rights except such rights as the right to life and to some extent the right to personal liberty in the event of a declaration of a state of emergency (see section 45 (2) of CFRN 1999) by the President empowered by Section 305 of the constitution.
Issues arising from the restriction of movement by the President based on the Quarantine Act
Recently President Mahamadu Buhari issued an order under the COVID-19 Regulations restraining the movement of people. The order on restriction of movement was based on the Quarantine Act, 1926 and has since come under severe criticisms by some legal analysts. All of them arguing that the act doesn't provide for restriction of movement in the powers to be exercised by the President. However, Nigerian judiciary has gone beyond interpreting laws line for line to seeking the spirit of the law.
This in essence means the reason for the establishment of the act. It was articulated in its introduction that it is "An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases ."
Additionally, Section 4 provide motives for legislations which can be made by the President, Section 4 (c) specifically confers on him to powers to legislate in order to prevent the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria.
Obviously during the course of exercise of this power, locomotion or movement must be halted (to contain the spread). While locomotion is limited, it's important to note that man is the primary host of the virus and as such would have his freedom of movement contained.
The cumulative of Section 4 grants authority and binding force to the restriction of movement order of Mr President.
Beyond the Quarantine Act, 1926, Section 45 (1)(a) of the constitution of the federal republic of Nigeria puts public health as a limitation to the fundamental right to freedom of movement.
This is to foreground the fact that the Quarantine Act can provide powers for restriction of movement during this period.