COVID-19 Legal Tussles: Malawi Court Suspends Lockdown

Since the outbreak of the COVID-19 pandemic, governments around the world have declared lockdown as part of efforts to curtail the spread of the virus.

Countries like the US, UK and Italy have declared lockdown as COVID-19 spreads. On the 13th of April, Nigerian President Muhammadu Buhari extended an earlier lockdown extension by two weeks. The lockdown order was criticised by prominent Nigerians, saying it was against the letters of the constitution. Other countries like South Africa, Kenya, Rwanda, also have various forms of lockdown, including social distancing, compulsory mask-wearing, and a curfew.

In a landmark judgement on Friday, April 17th, a court in Malawi suspended a three-week lockdown. According to the Financial Times, the proposed lockdown was challenged by the Human Rights Defenders Coalition, a civil society group based in Malawi. The group said it needs the government to rectify a constitutional gap and not necessarily against the pandemic.

In Africa, with relatively few reported deaths from coronavirus, the lockdown has more economic consequences preventing people from earning a living and restricting movement. But can a mere pronouncement for lockdowns stand in the face of the law?

Pronouncement without consultation?

The Malawian Human Rights Commission believed that the government needs to take consultation seriously before locking down the nation. The group hopes the government will set measures in place to prevent hunger before closing food markets, making a case for the most vulnerable of society.

Arguing in the same direction, Nobel Laureate, Prof. Wole Soyinka, described the pronouncement of the total lockdown of some states by President Buhari as illegal and unconstitutional. The elder statesman said President Buhari has no power to close down state borders without ‘unity of purpose’. He urged constitutional lawyers and elected representatives to take the matter up and educate the citizens.

Other Nigerians also opined that the closure should be done in accordance with the law. Away in the United States, some governors also believed President Donald Trump lacks the power to lift the lockdowns they have imposed in their states.

What does the law say about lockdown?

Section 305 of the Constitution of Nigeria empowered the president to restrict movement by the declaration of the state of emergency in case of war or imminent danger with approval of the National Assembly.

The section states;

(1) Subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.

(2) The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.

(3) The President shall have the power to issue a Proclamation of a state of emergency only when:

(a) the Federation is at war;

(b) the Federation is in imminent danger of invasion or involvement in a state of war;

(c) there is am actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;

(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;

(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;

(f) there is any other public danger which clearly constitutes a threat to the existence of the Federation; or

(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this section.

Govt follows medical advice on lockdown 

Reacting on the premise of the law, the Nigerian government said war is an appropriate word for the coronavirus pandemic, citing statement credited to Dr. Richard Hatchett, the head of the International Coalition for Epidemic Preparedness Innovations (and former Director of the US Biomedical Advanced Research and Development Authority)

Garba Shehu, a Presidential media aide, said the mandated lockdowns are in place to defeat the spread of coronavirus based on medical and scientific advice. The executive arm of government also signed an executive order, Quarantine Act, COVID-19 Regulation No 1 and 2 of 2020, to legalise the order. The Quarantine Act signed by President Muhammadu Buhari is valid in the face of the law. It is one of the powers guaranteed by the constitution. The question we need to ask is just its implication of the economic and social well-being of the citizen, what has government done to cushion the effect of the Act, a Lagos-based lawyer, Amina Quadri said. The coronavirus has negatively impacted livelihoods, especially in low-income countries. The challenge everywhere is to limit the impact while Governments try to contain the pandemic and save lives.