Written by Dr Cheluchi Onyemelukwe, Associate Professor at Babcock School of Law and Security Studies and Partner at Health Ethics and Law Consulting

The current COVID-19 pandemic has resulted in a global crisis with short and long-term implications for health, the economy and social relations, especially in resource-constrained countries such as Nigeria. In Africa’s most populous country with about 200 million the possibility of a public health disaster has implications not only for its citizens but for the West Africa region.

Nigeria recorded its index case on February 27, 2020 and currently has about 4, 000 officially confirmed cases of the virus. Recognising the enormity of the problem, the government took key containment steps including adopting restrictions on movement following stay at home orders issued by the Federal Government. 

Nigeria’s response has been undertaken within an evolving legal framework.  This framework includes the Constitution of the Federal Republic of Nigeria, 1999 which provides for human rights but also for the possibility of derogating from human rights on the grounds of public health (Section 45) and for a declaration of a state of emergency within certain defined parameters; the Quarantine Act, 1926 which allows the President to declare a disease a dangerous infectious disease or certain places an infected local area, public health laws of various States; the Nigeria Centre for Disease Control and Prevention Act, 2018 which established the Nigeria Centre for Disease Control (NCDC).  The Nigeria Centre for Disease Control and Prevention (NCDC), Nigeria’s public health institute, has led the efforts to control the outbreak.  Although established in 2011, the NCDC’s position as the public health institute was strengthened in 2018 when legislation was passed empowering it to protect Nigerians from the impact of communicable disease and to lead and coordinate the response, capabilities, measures and activities to control outbreaks and mitigate the impact of public health disasters. Its responsibilities also include leading the implementation of the International Health Regulations (IHR).  In line with its mandate to provide information to the public, the NCDC has been active in managing the testing for the virus, providing relevant information around physical distancing, management of burials and other technical advisories, amongst other things. Supplementary regulations have also been developed at both federal and state levels.

Despite the availability of the above-mentioned laws, COVID-19 met the legal framework on health emergency in an arguably inchoate state. A Joint External Evaluation (JEE Report) (which measures the adequacy of implementation of the IHR within a country) had given the lowest score to the area of legislation, underscoring the need to reform Nigeria’s legal framework.[1]  A follow up report endorsed by the NCDC and supported by Resolve to Save Lives provided extensive analysis of the gaps at the federal level. [2]  For one thing, Nigeria’s laws on health emergency are mostly outdated with significant gaps in the areas of coordination between the responsible authorities and key provisions on biosafety and biosecurity amongst other issues.  For another, Nigeria’s federal structure means that responsibilities in the area of public and health emergencies are divided amongst the Federal and State governments.  

The Federal Government, by constitutional law, has significant authority in this area.  But States also have considerable power in terms of public health, with the added responsibilities of being closer to the grassroots.   In this regard, several Sates passed executive orders and in some cases regulations, the legality of which is arguably debatable.  However, although, there has been relatively little wrangling over who has authority over what, and to a large degree the Federal Government has not interfered with States on the steps they are taking, there have been challenges.  States have to a significant degree, yet not completely, taken on board the NCDC advisories and the Presidential Taskforce advisories. There have been several areas of frictions with attendant public health consequences for the residents of the State.  A couple of States have resisted the support of the NCDC and prevented testing in these States, potentially jeopardizing the determined efforts to contain the spread of the disease in the country.

Human rights challenges have also been noted, including the failure to follow due process in enforcing the provisions of executive orders, the killings of alleged violators of the lockdown orders by armed forces put in charge of enforcing the lockdown orders and demolitions of buildings pursuant to executive orders issued in one State.   Other challenges include the failure of infected persons to provide information on travel history and exposure to infection, thus exposing health care workers to infection, failure of hospitals to provide emergency treatment due to fears that patients may be infected, burial of key government official where no physical distancing was observed, indicating inconsistency in implementation of existing advisories, and the deportation of persons considered at risk from some States. While human rights are, to a degree, necessarily curtailed by public health measures, due process protections must be in place. These issues are not all specifically covered by existing law.

Apart from these challenges which have exposed the inchoate state of the law, the current State and Federal regulations enacted during this period do not emphasise human rights protections and due process safeguards.  Several socio-economic rights, including the right to education have been adversely affected, with many children out of school and with little access to the online education only available to children and young people in the affluent private educational institutions thus exacerbating the inequalities and disparities between the rich and the poor.   

The Nigerian legislature is now seeking to enact new legislation on the management of health emergencies.  Some controversy has attended some of the provisions of the proposed Bill.  The legislative process remains ongoing.

In my view, it is essential that the key provisions be adopted which address the gaps identified during this pandemic in order to develop comprehensive, forward-looking, human rights strengthening legislation that will provide a stronger basis for health emergency preparedness.  These should ideally include an articulation of how an epidemic or pandemic should be declared in the country, a strengthening of the public health institute, NCDC, in its functions, provisions supporting the implementation of IHR provisions, clarity in the relationship between the various authorities in epidemic and pandemic management, the use of non-pharmaceutical interventions, human rights provisions, due process, legal support for the Integrated Disease Surveillance Response (IDSR) already in place in the country, amongst other key provisions.   

One can only hope that comprehensive health security legislation may be one of the few good fruits to emerge from this unprecedented crisis.

[1] Joint External Evaluation of IHR Core Capacities: Federal Republic of Nigeria: Mission Report, 2017.

[2] Cheluchi Onyemelukwe, Nigeria: IHR Implementation in Nigerian Law: Mapping of Legal Authorities and Analysis of Legislation at Federal Level, NCDC, 2019 (prepared with the support of Resolve to Save Lives).