Public Participation and Assembly Under Covid-19: The Nigeria Experience

By Rita Ilevbare (Esq.), Executive Director, Gender Relevance Initiative Promotion (GRIP)

On 11th March, 2020, the World Health Organisation (WHO) declared an outbreak of a new viral disease; Coronavirus, also known as COVID-19. The virus was first identified in Wuhan on 17th November, 2019, by December, 2019; it had sufficiently spread enough to cause serious concern in China. The virus has now become a global pandemic, threatening the World and global economy. The first case of the virus in Nigeria was recorded on 27th February 2020. Concerned about the alarming rate of the spread of the virus, the ease of human to human transmission and the severity of the virus, the World Health Organisation (WHO) called on governments across the globe to take urgent and aggressive actions to stop the spread of the virus. As the World scales up public health response to the pandemic, there was need for governments to take decisive actions to control the spread of the pandemic and provide necessary services to the people who need them, take comprehensive approach designed to suit their circumstances, with containment as the central focus. However, as in all acute pandemics, especially that transmitted from person-to-person, there was need to ensure that governments’ responses are grounded firmly in human rights.

Heeding the call of the WHO, most governments of the World, including Nigeria issued Lockdown directives banning public assembly and liberty amongst other restrictions, in order to contain the spread of the virus, citing public health and safety as reasons for the restrictions. Persons providing essential services like food supply, medicals and information (journalists) etc where exempted from the lockdown directives. To enforce the lockdown directives in Nigeria were the security agents, who were not trained before deployment, this paved way for various forms of human rights violations, including extra judicial killings by the security agents enforcing the lockdown directives. Curiously, lawyers and the courts that could have come to the aid of people to defend their human rights were not listed as part of those classified as essential workers or services in the lockdown directives. To ensure that peoples’ rights were protected, the National Human Rights Commission (NCHR), CSOs like Cleen Foundation and other stakeholders rolled out hotlines for people to report cases of security agents’ human rights violations for necessary actions. These stakeholders also released periodic statements, calling on the security agents to respect rules of engagement in the enforcement of the lockdown directives.

Though International Human Rights Law guarantees the right to the highest attainable standard of health for everyone, and obligates governments to take steps to prevent threats to public health, and to provide medical care to those in need, it also recognises that in the context of serious public emergencies threatening the life of nations, restrictions on some rights can be justified when they have a legal basis, are strictly necessary, are based on scientific evidence and are neither arbitrary nor discriminatory in application of limited duration, respectful of human dignity subject to review and proportionate to achieve the objective of protecting public health and safety. In the same vein, the Right to Assembly is a Universal Right protected under International Law and the Nigeria Constitution and is not to be taken away arbitrarily. However, Article 25 of Siracusa Principles adopted by the United Nations (UN) Economic and Social Council in 1984 states that “rights and freedoms can be limited to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population” The Siracusa Principles provides the authoritative guidance on governments’ responses that restricts human rights for reasons of public health or national emergency; it stressed that any measures taken to protect the population that limit people’s rights and freedoms must be lawful, necessary and proportionate. Therefore, states of emergency need to be limited in duration and any containment of rights needs to take into consideration, the disproportionate impact on specific proportions or marginalized groups. The Principles specifically states that restrictions should, at a minimum be;

• Provided for and carried out in accordance with the law,
• Directed towards a legitimate objective of general interest,
• Strictly necessary in a democratic society to achieve the objective,
• The least intrusive and restrictive available to reach the objective,
• Based on scientific evidence and neither arbitrary nor discriminatory in application and,
• Of limited duration respectful of human dignity and subject to review.

Agreeing with the Siracusa Principles, a group of UN Human Rights experts on 16th March, 2020, enjoins States to avoid overreach of security measures in their response to the Coronavirus pandemic. The Group also reminded States that emergency powers under the guise of protecting public health should not be used to quash dissent.
In Nigeria, the lockdown policy adopted by the Government to combat COVID-19 affected the right to liberty and freedom to assemble freely in so many ways. The people were not consulted before the issuance of the lockdown policy; this negates the SDG17 principle of partnership, particularly the principle of inclusiveness. Nigerians representatives are at the National Assembly, yet the President chose to issue a policy banning liberty and public assembly, without consulting or getting inputs from the citizens who the policy will directly affect. The COVID-19 Presidential Task Force inaugurated by the Nigeria President to respond to COVID-19 neither consults the people, nor answerable to any person except the President. Some of the State Governors also followed the President’s footsteps to issue various restriction policies in their respective states, without consulting the people, the effect of this; no ownership of the process, hence the flagrant disregard of the lockdown directives by members of the public across the country.

Furthermore, the restrictions on public assembly and liberty reduced human relations, loss of livelihoods, loss of jobs and productivity, sent children out of school, increased gender based violence, with women unfortunately being the most vulnerable. To mitigate the impact of the restrictions on livelihoods, Nigeria government at various levels distributed palliatives, especially food to vulnerable persons. Many people wondered the yardstick used by Government to select the beneficiaries of these palliatives or how many people actually benefited; others believed that those who should have benefited were lift out. To complement Government’s effort on the distribution of palliatives, many corporate bodies, CSOs, religious institutions and individuals also distributed palliatives to the vulnerable.

The ban on public gathering may have increased corruption in Nigeria, as many governments across Nigeria, including the Federal Government have not demonstrated transparency in the handling of the COVID-19 funds, partly raised from International Donors, Corporate Bodies and Individuals. Also, there was wide spread reports of security agents perpetuating human rights violations and extortion of citizens in the course of enforcing the lockdown directives. According to the NHRC’s Press Release of 16th April, 2020, as at that date, security agents enforcing the lockdown directives had killed more persons in Nigeria than COVID-19. Although the restrictions on public gathering and movement was a measure adopted to prevent community spread of COVID-19, Nigerians may have complied better with the policy if the public was consulted and those needless deaths may have been averted.

Participation is a fundamental principle of Human Rights. Therefore, all Government’s policies and actions must allow for the direct and meaningful participation of members of the public, particularly those who would be affected by these policies and actions and those who would be most vulnerable. This is the core of transparency in information and decision-making which will translate to a response being grounded in the realities and needs of the people, avoid violations of human rights, build trust between the Government and the people that will result in obedience without coercion. The public is a strength whose role when well harnessed can translate to a robust swift response, as members of the public will self-isolate willingly, support each other to seek care and to access medical facilities when the need arises, as well as look after their families and communities in unison.

Equally, Governments’ swift actions in emergencies must not be rendered ineffective by existing inequalities, lack of information and barriers related to cost, stigma, privacy and concerns around employment and livelihoods like the reported cases in Northern Nigeria of the inhuman treatment melted out to the “Almajiris” sent out in their hundreds from their states of residents to their states of origin, because of the COVID-19 policy on public gathering. According to Wikipedia, in Nigeria, the word “Almajiri” refers to any young person not in parental care, begs on the street and does not attend secular school “Almajiris” are usually from poor rural backgrounds and mostly found in Northern Nigeria. Though the Almajiris are disadvantaged, their right to dignity should be protected even in time of pandemic. Human Rights Law mandates that all human rights are inalienable, universal, interdependent and indivisible and must be respected at all times, it puts binding obligations upon governments, including in times of emergencies and applies to everyone irrespective of gender, status, creed etc. Governments must refrain from acting in a way that discriminates against people, including recognising that existing inequalities and vulnerabilities may mean that the pandemic and the response may have a disproportionate effect on particular populations like the Almajiris and should take urgent actions to mitigate this inequality accordingly.

Public health emergencies may be used to suppress fundamental human rights, such as the right to liberty, freedom of assembly etc. It was J.J Rousseau who said in 1712, that “man is born free and everywhere he is in chain”. This chain may be necessary at times for the common public good of all. Freedom from fear and assured personal liberty is the birth right of everyone, yet, circumstances may arise where human rights may be curtailed, such as public health emergency like the COVID-19 pandemic. The lessons leant from years of responding to HIV/AIDS pandemic has reinforced the importance of a human rights-based approach to ensuring effective and proportionate responses to pandemics. Key amongst which is a people centered and informed response, that embraces solidarity and kindness, prioritizing the most vulnerable and empowers people to take action to protect themselves and others from the virus. These are key essential for creating public trust between the affected, the Government and the health officials that will enable rapid and effective response. While Human Rights Law allows for the limitation of some rights for legitimate purposes, such as protecting public health, there are strict boundaries on when, how and to what extent human rights may be limited. Any limitation must be for a legitimate purpose, must be proportionate to that purpose, necessary, time-bound, non-arbitrary, non-discriminatory and according to Law.

According to Wikipedia “Law is a system of rules that a particular country or community recognises as regulating the actions of its members”. Or “A recognised principles whose violation must or should result in penalty” Law is critical to the establishment of orderliness and stability in the society. Where there is no order, there is bound to be chaos and anarchy. However, it is important to note that Law cannot provide for every single situation, especially as man is not omnipotent to envisage all situations that may arise. Section 40, Chapter 4 of the Constitution of the Federal Republic of Nigeria (CFRN) states, “every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union, or any other association: for the protection of his interest”

Though freedom of association is preserved, there is no further provision on where this association should take place; physical or online. Prior to the advent of technology, people assemble physically; technology has now shown that it is possible for people to assemble without physical meet. In fact, online meetings have been one very veritable means of mitigating the COVID-19 pandemic. Without technology, the impact of COVID-19 could have been more devastating for Individuals, Communities and Governments. There would have been more permanent loss of jobs and irretrievable loss of businesses. Whether physical or online assembly, Nigeria Law requires that every assembly must be for lawful purpose. Furthermore, the Nigeria Cybercrime (Prohibition) Act, 2015 also prohibits crimes perpetuated through the internet. Thus, the defence of no physical assembly will not avail any person who commits any crime, including during this COVID-19, even when there is no evidence of the physical presence of such person at the scene of crime.

COVID-19 has however thrown up new challenges that will require the review of some Nigeria legislations to reflect new realties. The Government current policy of restrictions on liberty and public assembly has far reaching implications on child rights, the right to education, right to freedom of religion and belief, right to work and to earn a living wage, the right to health and access to health services etc, which are now limited by COVID-19. However, some of these rights are now being exercised and enjoyed via online assemblies, while some others cannot be enjoyed. In particular, physical assembly like religious gatherings, funerals, marriages and travels etc are banned in Nigeria, and a lot of lives changing events like weddings have been put on hold. Nigeria national laws certainly must be reviewed to specifically provide protection and support for online assembly in this COVID-19 World and beyond, as well as enhance access to information which largely now depends on the internet.

Though technologically, Nigeria is not as advanced compared to the western countries and Asia, there is access to internet services. Before the outbreak of COVID-19, Nigeria Government granted licenses to internet service providers to operate in Nigeria, thereby facilitating access to internet services for millions of Nigerians. However, citizens are responsible for the financial burden of the usage of internet data. Beside, internet usage is tied to the availability of power. Unstable power supply remains a major challenge in Nigeria; the privatization of the power sector has not helped, as the availability of power continues to decline on daily basis. Power failure can be a major hindrance to accessing the internet, even when one has data. No specific measures have been put in place in Nigeria for citizens to access free internet for sharing and receiving information, apart from MTN Nigeria who as part of its cooperate social responsibility, provided its services users, free 10SMS for each person a day and very recently, free 100MB to aid communication and information sharing during the COVID-19 pandemic.

The importance of access to information is very germane and critical in order to ensure effective exercise of the right to assembly. Under Section 22 CFRN, 1999, the mass media is required to uphold the fundamental objectives of the State and uphold the responsibility and accountability of the Government to the people. While the duty imposed on the media has been frustrated by the denial of access to information on public affairs, it should be noted that access to information is a fundamental right by virtue of Section 38 of CFRN, 1999, which stipulates that “every citizen shall have the right to freedom of expression, including the right to obtain information and impart ideas”. Access to information is equally protected by Article 9 (2) of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, which provides that “Every individual shall have the right to receive information”

It is important to note that the CFRN provided the bedrock for Nigerian citizens’ access to information. Furthermore, the Nigeria Freedom of Information (FOI) Act, 2011, also provides additional legal framework for citizens’ access to information. The purpose and objectives of the FOI Acts are;

• To make public records and information more freely available
• To provide for public access to public record and information
• To protect public records and information to the extent consistent with the public interest and protection of personal privacy
• To protect serving public officers from adverse consequences for disclosing certain kinds of official information without authorisation
• To establish procedures for the achievement of these purposes and for other related.

The FOI Act grants Nigerians unhindered access to public information, failure which the Government or its representatives could be sued to Court. Unfortunately, the courts are under Lockdown too with only minimal function of attending to the prosecutions of defaulters of the COVID-19 restriction directives. Of note is the fact that most of the persons prosecuted for violating the lockdown directives, have no access to lawyers to defend them, because lawyers are also held down by the Lockdown Policy and are not classified as essential workers. With this development, it is doubtful whether the courts can be of help in the enforcement of FOI Act in this COVID-19 pandemic. Despite these challenges, journalists in Nigeria are going about their duty within the limits of what is practicable, and at times, with harassment from security agents enforcing the restrictions.

Nigeria public had considerable access to information before the COVID-19 pandemic and continues to have same even in this pandemic from both the traditional and the new media. Additionally, various Nigeria Governments have through their respective ministries of education embarked on School on the Air via radio and television, as a means of access to information and education for school children. As laudable as these medium of access to information and education are, not every child in Nigeria have access to these medium of information dissemination. Thurs, some Nigeria school children are still missing out on receiving and sharing of information during this COVID-19 pandemic.

On public information regarding the COVID-19 pandemic, specifically, the Nigeria Centre for Diseases Control (NCDC) sends daily information to people on how to stay safe and seek help for COVID-19, as well as putting information on its websites for people to access and reach out to them for information and help. Also, NCDC have series of adverts, both in English and local languages in print and electronic media in this regard, and have dedicated numbers where people can call for help. The activities of NCDC is just an aspect of the COVID-19 response in Nigeria, beyond the information from the NCDC, it would be good for Government to provide the public, routine robust information on all aspects of the COVID-19 response in Nigeria, including income and expenditure as it relates to COVID-19 pandemic.

In every situation, people expect Government to take prompt action to protect their lives, the life of their families and community at large.  In many countries affected by COVID-19, including Nigeria, restrictive directives on liberty and assembly are actions taken by some Governments across the globe to contain the spread of the deadly Coronavirus in their respective countries. For public health reasons, these restrictions are acceptable under the Law, where exercised in proportionate manner. However, citizens must be vigilant and actively monitor the process to ensure the restrictions are not misused or used to abuse the fundamental human rights of the people, as is presently being witnessed in the unfortunate Almajiri children saga in Northern Nigeria. While the protection of public health and safety policy is for the common good of all, the people must be responsive to ensure unpopular policies are not imposed by Government, without consultation, and that such restrictive measures do not remain in force even after the public danger or threat the people are being protected from ends.

Rita Ilevbare is a Lawyer with 17 years post call experience in public interest law, gender justice and child development. She is the ED Gender Relevance Initiative Promotion (GRIP), a leading NGO responding to GBV in Nigeria. Rita Ilevbare is currently the National Assistant Secretary FIDA Nigeria and one time Past Chairperson FIDA- Ekiti State.

Rita holds an M.Sc in Gender and Development Studies and a member of the Ekiti State GBV Management Committee, a Body coordinating the prevention and response to GBV in Ekiti State. Rita’s core interests are litigation, advocacy, policy formulation/legal drafting, mobilisation, research and human rights violations documentation. She worked with others to draft the Ekiti State GBV Law, Equal Opportunity Law, Water and Sanitation Bill and the Social Protection Bill among others. Presently, She is a GBV Consultant on a World Bank Supported Project; Third National Urban Water Sector Reform Project, Ekiti State Water Cooperation.