While it is not untrue that a clean environment is desired by
all persons and society at large and that there is need to carry
out regular sanitation exercise, most persons will admit the
undesirability of the restriction of their movement on a so called
environmental sanitation day, more so the undue embarrassment meted
on them by law enforcement personnel and agents of the
Environmental Sanitation Authority on such days.
The monthly compulsory sanitation exercise of many states in
Nigeria takes place on the last Saturday of every month at the
early hours within which time persons are compulsorily required to
stay at home until 10:00am. Defaulters are arrested, convicted and
fined, sometimes after passing through dehumanizing treatment. This
was what happened in the case of Faith Okafor v Attorney General of
Lagos. In that case the plaintiff appealed her conviction for
movement on a designated sanitation day by the Special Offences
Court, at the Court of Appeal, Lagos Division. There the court,
reversing the conviction, sternly stated inter alia, that an
executive directive of the Lagos State Government could not validly
derogate the Right to Freedom of Movement of the plaintiff. Clearly
the reasoning of the court in that case is clearly justified by the
fact that the violation of the plaintiff’s right was done pursuant
to a mere executive directive and not a law and therefore contrary
to sections 41 & 45 of the Constitution. However, it is the
writer’s strong contention in this work that such a limitation of
human rights on basis of environmental sanitation, even where
imposed by a written law, would be excessive and out of proportion
contrary to sections 41 and 45 respectively and therefore
unconstitutional, null and void.
The Fundamental Right to Freedom of Movement is constitutionally
guaranteed under Section 41(1) which 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 thereto or exit therefrom”.
It simply means every citizen of Nigeria has the right to go to and
fro, within, exit and re-enter Nigeria. It means liberty to move
about at his will. However under subsection 2 of section 41 the
right could be derogated by law. Thus subsection 2(a) justifies for
example the seizure of the passport of a criminal suspect, or
convict, or his incarceration although within the scope of the law.
Subsection 2(b) relates to extradition of a criminal or criminal
suspect to another country. Further, under the blanket provision of
section 45 the right could be derogated by a law in the interest of
defence, public safety, public order, public morality or public
health, or for the purpose of protecting the rights and freedom of
other persons. This provision justifies, inter alia, restrictions
on freedom of movement, and thus personal liberty of criminals and
suspects, in terms of imprisonment or detention and preventive
detention as permitted under section 35 of the Constitution. It can
also be used to justify curfew, and the restriction of citizens to
enemy countries. Undoubtedly authors and enforcers of such
limitation would readily claim justification from section 45,
particularly on grounds of public health; but the question that the
courts must answer is whether such law is reasonably justifiable in
a democratic society. What does this mean?
Indeed there is no perfect template for a democratic society;
consequently in a democratic setting it is the courts that
determine whether or not a law is reasonably justifiable by way of
judicial review. Thus, to quote Justice Bates in Cheranci v
Cheranci [1960] NRNLR 24; a reasonably justifiable restriction on
human rights “must not be excessive or out of proportion to the
objects which it is sought to achieve.” This is akin to the UK
where a common way of determining whether a law that limits rights
is reasonably justifiable in a democratic society is by determining
whether the law is proportionate. The writer bases his contention
on the Cheranci’s conception of the phrase “reasonably justifiable
in a democratic society” as contained in section 45 which,
according to a 2014 article by Basil Ugochukwu, “remains the only
Nigerian court decision that offers an expanded definition and
explanation of “reasonably justifiable in a democratic
society”.
It is to my mind that such law will not fall within the tenets
of “reasonably justifiable in a democratic society” and thus
undemocratic. First, granted that the monthly sanitation exercise
is geared towards protecting and maintaining public health, which
remains a legitimate and important objective, the question of
whether it is of over-sufficient importance to warrant the locking
up of citizens must be answered in the negative. For how useful
would health be to the public if the public were to be immobilized?
Of what use is a benefit if you take away the means of enjoying it?
No use whatsoever!
Secondly, the question of whether In no way is the cleaning of
public places connected to the restriction of private right to
movement unless what the authorities seek to prevent is a
contagion, (or more ridiculously, a killer body odour), in which
case it will be in the best interest of the public as to their
health to restrict movement. In essence environmental sanitation is
not rationally connected to the movement of persons. That being
said, the cleaning of public places is the job of paid employees of
the government, a job which can be well done without sweeping away
the right to freedom of movement. It is the duty of the authorities
to ensure their employees do this job.
Further, while one may argue that public health is not dependent
exclusively on the cleanliness of public places but also on the
hygiene of private homes; no explanations have been given as to why
the authorities have opted for restriction of movement instead of
what was obtainable in the good old days. In the past health
inspectors went around from home to home enforcing health
standards, arresting and fining defaulters accordingly. This
answers the question of whether the restriction of movement is
necessary to achieve public health, taking into account a plethora
of other means of achieving the same object. Moreover, the
restriction would not give a fair balance between the private right
to freedom of movement and the public interest it sought to be
achieved. One cannot reasonably be held bound in his home for the
reason that some other person chose to keep his own home dirty or
because a public officer failed to execute his duty. It is in fact
outrageous.
Concluding the way I started, the restriction of movement just
to conduct environmental sanitation exercise is and would remain
disproportionate, unreasonable and unconstitutional, thus null and
void, be it by an executive directive or by written law in so far
as the law as stated above stands. Citizens’ rights ought not to be
treated like they are free gifts from the Government, but must be
treated with their true status as inalienable and fundamental human
rights preceding government itself with restriction only according
to the extent permitted by law. It is also recommended that there
should be stern consistency and continuance in the application of
the proportionality formula as conceptualized in the Cheranci case,
for noticeably failure to stand by the proportionality formula
especially in human right cases has only led to “a hazy and
fragmented judicial landscape in which courts reach decisions
without offering any coherent explanation for doing so.” This
leaves human rights at the mercy of the lawmakers and leaves with
the citizen uncertainty.
Koikoibo Jasper, Faculty of Law, NDU,
Jasper.koikoibo@gmail.com
While it is not untrue that a clean environment is desired by
all persons and society at large and that there is need to carry
out regular sanitation exercise, most persons will admit the
undesirability of the restriction of their movement on a so called
environmental sanitation day, more so the undue embarrassment meted
on them by law enforcement personnel and agents of the
Environmental Sanitation Authority on such days.
The monthly compulsory sanitation exercise of many states in
Nigeria takes place on the last Saturday of every month at the
early hours within which time persons are compulsorily required to
stay at home until 10:00am. Defaulters are arrested, convicted and
fined, sometimes after passing through dehumanizing treatment. This
was what happened in the case of Faith Okafor v Attorney General of
Lagos. In that case the plaintiff appealed her conviction for
movement on a designated sanitation day by the Special Offences
Court, at the Court of Appeal, Lagos Division. There the court,
reversing the conviction, sternly stated inter alia, that an
executive directive of the Lagos State Government could not validly
derogate the Right to Freedom of Movement of the plaintiff. Clearly
the reasoning of the court in that case is clearly justified by the
fact that the violation of the plaintiff’s right was done pursuant
to a mere executive directive and not a law and therefore contrary
to sections 41 & 45 of the Constitution. However, it is the
writer’s strong contention in this work that such a limitation of
human rights on basis of environmental sanitation, even where
imposed by a written law, would be excessive and out of proportion
contrary to sections 41 and 45 respectively and therefore
unconstitutional, null and void.
The Fundamental Right to Freedom of Movement is constitutionally
guaranteed under Section 41(1) which 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 thereto or exit therefrom”.
It simply means every citizen of Nigeria has the right to go to and
fro, within, exit and re-enter Nigeria. It means liberty to move
about at his will. However under subsection 2 of section 41 the
right could be derogated by law. Thus subsection 2(a) justifies for
example the seizure of the passport of a criminal suspect, or
convict, or his incarceration although within the scope of the law.
Subsection 2(b) relates to extradition of a criminal or criminal
suspect to another country. Further, under the blanket provision of
section 45 the right could be derogated by a law in the interest of
defence, public safety, public order, public morality or public
health, or for the purpose of protecting the rights and freedom of
other persons. This provision justifies, inter alia, restrictions
on freedom of movement, and thus personal liberty of criminals and
suspects, in terms of imprisonment or detention and preventive
detention as permitted under section 35 of the Constitution. It can
also be used to justify curfew, and the restriction of citizens to
enemy countries. Undoubtedly authors and enforcers of such
limitation would readily claim justification from section 45,
particularly on grounds of public health; but the question that the
courts must answer is whether such law is reasonably justifiable in
a democratic society. What does this mean?
Indeed there is no perfect template for a democratic society;
consequently in a democratic setting it is the courts that
determine whether or not a law is reasonably justifiable by way of
judicial review. Thus, to quote Justice Bates in Cheranci v
Cheranci [1960] NRNLR 24; a reasonably justifiable restriction on
human rights “must not be excessive or out of proportion to the
objects which it is sought to achieve.” This is akin to the UK
where a common way of determining whether a law that limits rights
is reasonably justifiable in a democratic society is by determining
whether the law is proportionate. The writer bases his contention
on the Cheranci’s conception of the phrase “reasonably justifiable
in a democratic society” as contained in section 45 which,
according to a 2014 article by Basil Ugochukwu, “remains the only
Nigerian court decision that offers an expanded definition and
explanation of “reasonably justifiable in a democratic
society”.
It is to my mind that such law will not fall within the tenets
of “reasonably justifiable in a democratic society” and thus
undemocratic. First, granted that the monthly sanitation exercise
is geared towards protecting and maintaining public health, which
remains a legitimate and important objective, the question of
whether it is of over-sufficient importance to warrant the locking
up of citizens must be answered in the negative. For how useful
would health be to the public if the public were to be immobilized?
Of what use is a benefit if you take away the means of enjoying it?
No use whatsoever!
Secondly, the question of whether In no way is the cleaning of
public places connected to the restriction of private right to
movement unless what the authorities seek to prevent is a
contagion, (or more ridiculously, a killer body odour), in which
case it will be in the best interest of the public as to their
health to restrict movement. In essence environmental sanitation is
not rationally connected to the movement of persons. That being
said, the cleaning of public places is the job of paid employees of
the government, a job which can be well done without sweeping away
the right to freedom of movement. It is the duty of the authorities
to ensure their employees do this job.
Further, while one may argue that public health is not dependent
exclusively on the cleanliness of public places but also on the
hygiene of private homes; no explanations have been given as to why
the authorities have opted for restriction of movement instead of
what was obtainable in the good old days. In the past health
inspectors went around from home to home enforcing health
standards, arresting and fining defaulters accordingly. This
answers the question of whether the restriction of movement is
necessary to achieve public health, taking into account a plethora
of other means of achieving the same object. Moreover, the
restriction would not give a fair balance between the private right
to freedom of movement and the public interest it sought to be
achieved. One cannot reasonably be held bound in his home for the
reason that some other person chose to keep his own home dirty or
because a public officer failed to execute his duty. It is in fact
outrageous.
Concluding the way I started, the restriction of movement just
to conduct environmental sanitation exercise is and would remain
disproportionate, unreasonable and unconstitutional, thus null and
void, be it by an executive directive or by written law in so far
as the law as stated above stands. Citizens’ rights ought not to be
treated like they are free gifts from the Government, but must be
treated with their true status as inalienable and fundamental human
rights preceding government itself with restriction only according
to the extent permitted by law. It is also recommended that there
should be stern consistency and continuance in the application of
the proportionality formula as conceptualized in the Cheranci case,
for noticeably failure to stand by the proportionality formula
especially in human right cases has only led to “a hazy and
fragmented judicial landscape in which courts reach decisions
without offering any coherent explanation for doing so.” This
leaves human rights at the mercy of the lawmakers and leaves with
the citizen uncertainty.
Koikoibo Jasper, Faculty of Law, NDU,
Jasper.koikoibo@gmail.com