The Implications of the Interstate Lockdown Order on the Right to Freedom of Movement By Alofe Kemi
On the 29th of March, 2020, the ADDRESS BY H.E. MUHAMMADU BUHARI, PRESIDENT OF THE FEDERAL
REPUBLIC OF NIGERIA ON THE COVID- 19 PANDEMIC in Paragraphs 34 and 35 provided the following:
- Based on the advice of the Federal Ministry of Health and the NCDC, I am directing the cessation of
all movements in Lagos and the FCT for an initial period of 14 days with effect from 11pm on Monday,
30th March 2020. This restriction will also apply to Ogun State due to its close proximity to Lagos and
the high traffic between the two States.
- All citizens in these areas are to stay in their homes. Travel to or from other states should be
postponed. All businesses and offices within these locations should be fully closed during this period.
This raises the legal issue of the effects of this pronouncement on the constitutionally enshrined right to
freedom of movement in Section 41 of the Constitution of the Federal Republic of Nigeria (CFRN) vis-avis
the provisions of Section 45 (CFRN) regarding enactments made in the interest of defence, public
safety, public order, public morality or public health; or for the purpose of protecting the rights and
freedom or other persons. Or Acts of the National Assembly that derogate from the provisions of
Chapter four of the Constitution during periods of emergency under Section 305 (CFRN).
During the early stages of the incursion of the Covid-19 pandemic into Nigeria, the President restricted
movement of Nigerians to their homes except they were essential workers. Places of worship and work
places were closed with the exception of a few who were listed out in his second address on 22nd April,
2020 and interstate travel plans had to be postponed by both road and air because he placed a travel
ban on the nation which was immediately enforced for an initial period of two weeks before the
Governors Forum unanimously adopted the interstate lockdown for another period of two weeks. Some
may be wondering, “Aren’t my constitutionally guaranteed rights being infringed upon by the
government itself?” others may also wonder why no legal action had been taken by anyone to overturn
these steps taken by the government, this is why Sections 45 and 305 of the Constitution of the Federal
Republic of Nigeria are the subject of this write up.
Section 41. (1) (CFRN) provides that: Every citizen of Nigeria is entitled to move freely throughout Nigeria
and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry
thereby or exit therefrom. This means that as a Nigerian Citizen, you are free to move from one point to
the other at will and live anywhere in Nigeria whether you are from that state or not. It also ensures
your right to leave and come into Nigeria as you please. It also protects you from being deported from
Nigeria as a Nigerian with exception of countries in which Nigeria is in a reciprocal agreement with for
extradition. However, by virtue of the orders given by His Excellency, Muhammadu Buhari, the right to
move freely within the country was temporarily removed and no one could move from one state to the
other without a permit issued upon request after giving a good reason.
By what powers did Mr. President make these orders? Are they also enshrined in the constitution? To
answer these questions Section 45 and 305 (CFRN) will be read jointly. On one hand, Section 45 (CFRN)
makes provisions for legislations contradicting the provisions of the sections in Chapter four of the
Constitution of the Federal Republic of Nigeria that provide for various rights and freedoms. It states
that they are not invalidated only by the reason that they temporarily infringe on rights as long as the
legislations are reasonably justifiable in a democratic society or, are reasonably justifiable for the
purpose of dealing with the situation that exists during that period of emergency. While Section 45 (3)
states that In this section, a ” period of emergency” means any period during which there is in force a
Proclamation of a state of emergency declared by the President in exercise of the powers conferred on
him under section 305 of this Constitution.
On the other hand, Section 305 (CFRN) which covers the declaration of a state of emergency by the
President. What is a period of emergency? In what situations can it be declared by the President and
what other incidences accrue at such times? Section 305 (CFRN) provides the powers of the President
to declare a state of emergency. The Section lists out the circumstances in which a state of emergency
may be declared by the President and these are 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 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;
(g) the President receives a request to do so in accordance with the provisions of subsection (4) of this
Reading sub-paragraph (e) we find that at a time like this, the President can choose to declare a state of
emergency because Corona Virus is dangerous, has no cure and threatens the life of Nigerians.
Although, the President did not declare a state of emergency, if this was a step he wanted to take, he
Therefore, in answer to the question of how the President can order a restriction on the movement of
Nigerian citizens we can rely on the provisions of Section 45 (CFRN) providing for necessary derogations
from human rights in the interest of public safety, public order, public morality or public health. Or
Section 45(2) which states that any measures taken are reasonably justifiable for the purpose of
dealing with the situation that exists during that period of emergency. This means, a temporary
but reasonably justifiable legislation or order made during a period of emergency isn’t an infringement
of rights and isn’t invalidated by the Sections providing these rights. Or we can rely on the right of the
President to declare a state of emergency in Section 305 (CFRN) by which Acts can be passed that
derogate from people’s rights to respond to an emergency.
It is important to note that neither section 45(2) or 305 (CFRN) confers on the present or the National
Assembly the power to derogate from people’s rights indefinitely or as they please. Section 45 (2)
(CFRN) provides that the regulation derogating from these rights must only be for the reason of taking
measures during a period of emergency and that the measures wouldn’t be carried out except to the
extent that those measures are reasonably justifiable for the purpose of dealing with the situation that
exists during that period of emergency. This means that, no emergency, no derogation from the
enforcement and enjoyment of people’s rights. And clearly, since they are regulations made to combat
an emergency, the end of the emergency equals to the end of those measures. While Section 305
(CFRN) expressly states in sub-section 6 (c) that a Proclamation issued by the President under this
section shall cease to have effect after a period of six months has elapsed since it has been in force.
Except the National Assembly by a resolution passed in the manner in which the declaration of a state of
emergency was approved, extend the proclamation for a further period of six months. This means that
although the Constitution recognizes the powers of the President and National Assembly to make
regulations or declarations for the purpose of combating emergencies, it doesn’t allow these steps to be
made on a whim and it doesn’t inure in perpetuity.
There are also procedures that must be adhered to. For example, the President may make a
Proclamation of a state of emergency but if within two days when the National Assembly is sitting and
ten days when the National Assembly is not sitting the National Assembly has not approved the
Proclamation by a resolution supported by two-thirds majority of all the members of each House of the
National Assembly then the proclamation ceases to have effect.
There is however a different perspective to consider looking at the same Sections of the constitution.
Section 45(2) (CFRN) provides that the instrument that stipulates the measures which derogate from the
provisions of Chapter four is (and therefore, should be) an Act of the National Assembly. This act should
also be one that stems from a period of emergency. Subsection 3 provides that a period of emergency
means any period during which there is in force a Proclamation of a state of emergency declared by the
President in exercise of the powers conferred on him under section 305 of this Constitution. And as
mentioned above, such Proclamation must be ratified by the National Assembly by a resolution of twothirds
of the National Assembly.
This means that the National Assembly can not on their own decide that there is a period of emergency
and enact an act infringing on rights. It also means that the President cannot proclaim a state of
emergency on his own, at his will. There are checks and balances. A joint reading of both Sections also
reveals that it is the President’s role to proclaim a State of emergency while it is the National Assembly’s
role to enact any act or regulation that limit people’s rights for any length of time during said period of
Currently, the President didn’t exercise his powers under Section 305 (CFRN) and declare a state of
emergency, and the Covid-19 Regulations 2020 were made by the office of the President and signed by
him. The regulations derogate from people’s right to freedom of movement but they are not an act of
the National Assembly arising from the need to provide for measures to respond to a period of
emergency. This is not the ideal state of affairs drawing from the constitution.
In conclusion, I would recommend that due process be followed in order not to set an undesirable and
illegal precedent that people’s fundamental rights can be derogated from under the cloak of a pandemic
or any other seemingly emergent issue that come up as time goes on. But that whatever the case, the
provisions of Section 1 of the constitution of the Federal Republic of Nigeria is respected. The
constitution is supreme and anything contradictory is null and void. And that the administration of the
country is dedicated to protecting the rights of the citizens therefore they would not be derogated from
whimsically and without following the due process set by the laws they made, deliberated upon and
signed into law.
Constitution of the Federal Republic of Nigeria 1999 (as amended)