LEGAL ANALYSIS OF THE CHALLENGES OF
COVID-19 PANDEMIC IN NIGERIA
By
Kazeem
A. Oyinwola Esq.
Being the text of the lecture delivered by Kazeem A. Oyinwola Esq., Managing Partner, Amofin Solicitors, Abuja at an online event organized by Tawakkul Multi-purpose Cooperative Society Limited, Ilorin in April 2020
1.0
INTRODUCTION
Nigeria confirmed its first index case
on 27th February 2020. Information in the public domain has it that he
is an Italian man and that is much we know about him. The World Health Organization
(WHO) declared covid-19 a pandemic on 11th March 2020 and as at Thursday,
16thApril, 2020 the official figures of COVID-19 cases in Nigeria were
407 confirmed case, 128 discharges and 12 deaths.
Lagos is the epicentre of the virus but
so far it has spread to at least 20 states as at April 2020. The outbreak has
claimed many lives globally; it has disrupted businesses and economic
activities, it has even altered our lifestyles and it is currently keeping us
under quarantine, isolation and shelter-in-peace depending on our individual
conditions and where we are currently lockdown. Undoubtedly, a pandemic that has
disrupted almost every known business, supply and value chains cannot but have
legal consequences. So, the question is: what are the ranging legal issues
surrounding COVID-19 pandemic in Nigeria?
There are many legal issues involved but
this discourse identified and discussed five key areas of focus. The choice of
these areas were informed by the fact that they constitute common areas of
concern. These areas are;
1. Legal
framework for the control of epidemic/pandemic in Nigeria
2. Derogation/suspension of
human rights during epidemic/pandemic in Nigeria
3. Doctor-patients
relationship during epidemic/pandemic in Nigeria
4. Implications
of COVID-19 on various contractual obligations and commercial activities
5. Necessary
Reform for better management of epidemic and pandemic in the future
This
discourse therefore examines the challenges posed by the COVID-19 pandemic and
analyzed the legal issues surrounding the pandemic.
2.0
LEGAL
FRAMEWORK FOR THE CONTROL OF EPIDEMIC/PANDEMIC IN NIGERIA
The
following Laws/Act/Regulations constitute legal frameworks for the control of
epidemic/pandemic in Nigeria. While some apply generally, some apply
specifically to COVID-19 pandemic. These are;
§ 1999
Constitution of the Federal Republic of Nigeria (CFRN)
§ Quarantine
Act 1926
§ The
various COVID-19 Regulations, 2020 of state and Federal Government
§ Nigeria
Center for Disease Control and Prevention Act 2018 (NCDC Act)
§ National
Health Act 2014 (NHA Act)
·
1999
Constitution of the Federal Republic of Nigeria (as amended)
Section
305(1) of the 1999 Constitution empowers the president to issue a proclamation
of a state of emergency in the federation or in any part thereof. This is done by
an instrument published in the official Gazette declaring a state of emergency.
The power can be exercised;
·
when Nigeria is
at war, or
·
there is an
imminent danger of invasion or involvement in a state of war, or
·
there is
imminent or actual break down of public order and public safety, or
·
there is
occurrence or imminent danger of any disaster or natural calamity affecting the
community or
·
there is any
other public health which constitutes a threat to the existence of the
federation.
The
declaration of COVID-19 as a pandemic constitutes an imminent and actual danger to
public order, public health and public safety and therefore, by section 305(1)
CFRN, the President has the power to issue a proclamation for a state of
emergency. However, section 305(2) and (6) 1999 CFRN requires the approval of
the National Assembly within 2 days when it is in session or within 10 days
when it is not in session. This is problematic at this period because even the
National Assembly members cannot physically come together to consider the
proclamation; they are also to do social distancing, self-isolation, quarantine
or shelter in peace and I doubt if they have teleconferencing yet! The Galaxy Backbone
being devised to be used to provide teleconferencing by the Nigerian
Communications Commission (NCC) is, to my knowledge, yet to be automated with the
National Assembly as at the date hereof.
·
Quarantine
Act of 1926
This
when Quarantine Act of 1926 comes in.Sections 1, 2 3, 4, 5, and 6 of Act
empower the President to make regulations, declare any place as an infected
areas prescribes steps to be taken to prevent the spread or transmission of
the infectious disease prescribes powers and duties of officers to be charged
with enforcement of the regulations and designate such sanitary stations,
places, equipment and buildings to curtail the disease as they may deem fit. Section
7 of the Act gives the Governors(in respect of their states,) the same power as
the President to make declaration and regulations in the event the President
has not made one in respect of their states. The Quarantine Act 1926 provides a a reasonable degree of power for the president to handle a pandemic of this
nature. However, it should be noted that the Act is old and its provisions
would require modifications to bring it in tune with reality. As a result
of this, the covid-19 regulations were made pursuant to the Act.
·
COVID-19
Regulations
The
President made the COVID-19 Regulations, 2020 and COVID-19 Regulations No. 2
2020 pursuant to the Quarantine Act of 1926. While COVID-19 Regulations, 2020
prescribed restriction/cessation of movements in and outside Lagos and Ogun
States and the FCT, Abuja among other things, COVID-19 Regulations No. 2 2020
extended the lockdown.
COVID-19
Regulations, 2020 also empowered the Chief Justice of Nigeria to and validated
the circulars sent to all heads of court directing the suspension of court sittings
In Nigeria. There were arguments back and forth on the constitutionality or
otherwise of what the President and the CJN did. The critics argued that it is
only by declaration of a state of emergency that the president can restrict
movement or take over the affairs of a state. However, these critics probably
did not avert their minds to the provision of the Quarantine Act of 1926,
sections 315 and 318 of the 1999 CFRN. They also probably forget that by virtue
of section 315 of the Constitution, the Quarantine Act 1926 is preserved as an
existing legislation/law and the section gives the president and the governor
the power to make a modification, alteration and even addition in order to
bring it in line with the constitution.
Thus,
my own submission is that the President can rely on the provisions of 315 CFRN
and sections 1-7 of the Quarantine Act 1926 to make the COVID-19 Regulations
2020 and COVID-19 Regulations No.2 2020 and the Regulations so made are valid
and constitutional.
As
regards the power of the CJN to direct the suspension of court sittings, the
CJN is the Chairman of the National Judicial Council (NJC) by virtue of section
20 of Item I, Third Schedule, Part I to the 1999 CFRN. Section 21(a) to (e) of item I, Third Schedule, Part I to the Constitution makes the NJC the regulatory
body for the Nigerian judiciary and also gives NJC many powers with respect to
the appointment, discipline of judicial officers, budgetary allocations etc.
Furthermore,
section 21(e) of the Schedule then gives the NJC the power to deal with all
matters relating to broad issues of policy and administration. My position is
that it is under this broad power that the NJC’s power to direct the suspension
of court, sittings is subsumed and needless to say that the power to direct the
suspension of court sittings can be exercised by the NJC through its Chairman
which is the CJN.
More
so, Regulations 1(7) of the COVID-19 Regulations 2020 also allows the CJN to
suspend court sittings with the instrumentality of circulars. So, by the combined effect of section 21(a) to (e) of Item I, Third Schedule, Part 1 to
the Constitution and Regulations 1(7) of COVID-19 Regulations 2020, the
suspension of the court sitting via two separate circulars issued by the CJN is
legal and constitutional in my opinion.
·
National
Health Act of 2014
Another
legal frameworks for control of epidemic/pandemic in Nigeria are Nigeria
Center for Disease Control and Prevention Act of 2018 and the National Health
Act of 2014. Section 1 and 2 of the NH Act establishes the National Health
System and empower the Ministry of Health to perform supervisory and regulatory
functions. We have the National Council of Health and Technical Committee on
National Council of Health, we also have National Tertiary Health Institutions
Standard Committee and Health Care Provision Fund (see. S. 1-10 of the Act). Our
National Health System is versioned in a way that it comprises the followings
o
The Federal Ministry
of Health
o
The States/FCT
Ministries/Departments of Health
o
Parastatals
under the Federal/States Ministry of Health
o
All Local
Governments Health Authorities
o
The Ward Health
Committees
o
The Village
Health Committees
o
The Private
Health Care Providers
o
Traditional
Health Care Providers
o
Alternative
Health Care Providers
This
is all encompassing.Let us pause a moment and imagine how fantastic our health care system would have been if this system is working properly. But we all know this
COVID-19 must not get to the grassroots and this says a lot that the system is
good only as provided by the law, it is not yet working practically and
effectively.
·
Nigeria
Center for Disease Control and Prevention Act of 2018
Lastly
on the framework, we have Nigeria Center for Disease Control and Prevention Act
2018 (NCDC Act, 2018). The core
functions of NCDC by virtue of NCDC Act 2018 include to:
o Prevent, detect, and control diseases of public health importance.
o Coordinate surveillance systems to collect, analyse and interpret data on diseases of public health importance.
o Support States in responding to small outbreaks, and lead the response to large disease outbreaks.
o Develop and maintain a network of reference and specialized laboratories.
o Conduct, collate, synthesize and disseminate public health research to inform policy.
o Lead Nigeria’s engagement with the international community on diseases of public health relevance.
3.0
DEROGATION/SUSPENSION
OF HUMAN RIGHTS DURING EPIDEMIC/PANDEMIC IN NIGERIA
Every
citizen has fundamental rights enshrined in the 1999 Constitution. These
fundamental rights are contained in Chapter IV and are
1. include
right to life (s.33),
2. right
to human dignity(s.34),
3. right
to personal liberty (s.35),
4. right
to fair hearing (s. 36),
5. right
to private and family life (s.37),
6. right
to freedom of thought, conscience and religion (s.38),
7. right
to freedom of expression and the press (s. 39),
8. right
to peaceful assembly and association (s.40),
9. right
to freedom of movement (s. 41)
10. right
to freedom from discrimination (s.42), and
11. right
to own and acquire immovable property (s.43).
These
rights identified above are considered sacrosanct and can only be derogated
from as provided by the Constitution itself.To this end, section 45(1) 1999 CFRN
however, permits derogation from these right especially the following rights;
1. rights
to private and family life (s.37),
2. right
to freedom of thought, conscience and religion (s.38),
3. right to freedom of expression and the press
(s. 39),
4. right
to peaceful assembly and association (s.40), and
5. right
to freedom of movement (s. 41).
All
these rights can be suspended or derogated from. However, for the suspension/derogation
to be valid, it must comply with the provisions of the 1999 CFRN (i.esection
45) itself. Therefore, the derogation/suspension must be provided by any law that is reasonably justifiable
in a democratic society for the purpose of or in the interest of defence,
public safety, public order, public morality or public health or the protection
of the rights or freedom of others.
Furthermore,
by virtue of section 318 CFRN ‘any law’
as used in section 45 (1) would mean an Act of the National Assembly or a Law
of a State House of Assembly. By section 315 CFRN, the provisions of Quarantine
Act, 1926 qualifies as an Act of the National Assembly or the law of a state. And
remember that COVID-19 Regulations No, 1 and No,2 2020 were made pursuant to
the Quarantine Act. Thus, suspension of fundamental rights using the
instrumentality of the Regulations is, in my view, valid. This is because
regulations made pursuant to an Act is sometimes regarded as delegated
legislation having the same legal effect as the principal Act/Law pursuant to
which they are made.
Meanwhile,
in Lagos State,for regulations to have a force of law as the principal Act/Law
pursuant to which they are made such Regulations must have been approved by the
Lagos State House of Assembly. Section 1(1) and (2) of the Regulations Approval
Laws (CAP R4, Laws of Lagos State) 2011 provide that
“(1) notwithstanding
any provision to the contrary in any Law in the state, no regulation shall have
effect unless laid before and approved by the House of Assembly.”
This
is probably why some lawyers kicked against the conviction of FunkeAkindele and
her husband who were charged pursuant to the Lagos State COVID-19 Regulations
2020 because they insinuated that the said Regulation under which they were
convicted was not been laid before the House of Assembly for approval. People
also insinuated that perhaps State government later realized this error and that
was why the Lagos State Government decided to withdraw the charges against Naira
Marley, Gbadamosi and his wife who were also charged with the same offence on a condition that they would publicly apologize. Naira Marley had since
apologized.
The
point to be noted is that the derogation/suspension of the fundamental rights
is what gives the government the right/power to isolate or quarantine suspected
cases of COVID-19 or put the rest of the population to isolate or shelter in
peace even without their consent. It is the same thing that also gives the
government the power to restrict movement and direct people not to go to places
of worship.
My advice is we should obey the regulations and directive of the government because this is a period in which normal course of events have been suspended. Regular courts are not in the session and so the idea of “I want to fight for my fundamental rights” or “no police will beat me if I go out” may not arise. Of course, they are not expected to brutalize or dehumanize the citizens but the enforcement of rights are in abeyance now till after the derogation or suspension is lifted.
4.0
DOCTOR-PATIENTS
RELATIONSHIP DURING EPIDEMIC/PANDEMIC IN NIGERIA
The doctor-patient relationship is a very sacrosanct relationship in the field of
medicine/health care and law. The one I will touch here is privacy and confidentiality.
A patient is entitled to privacy and confidentiality of all information
relating to his/her health. The obligation to keep the patient’s information
confidential is fundamental in health care and medical law as it is one of the
fundamental medical ethics imposed by national laws and international codes.
Section
26(1) of the National Health Act 2014 provides that all information concerning
a user, including information relating to his or her health status, treatment
or stay in a health establishment is confidential. See also Rule 44 of the Code
of Medical Ethics in Nigeria 2008 (made pursuant to section 1(2)(c), of the
Medical and Dental Practitioners Act [CAP 221], Laws of the Federal Republic of
Nigeria 1990 (Decree No. 23 of 1988).
So,
healthcare professionals must take very seriously the ethics of professional
secrecy whereby any information about the patient that comes to the knowledge
of the practitioner in the course of the patient-doctor relationship
constitutes a secret and privileged information which must in no way be
divulged by him to a third party.
This
rule of privacy and confidentiality is so sacrosanct that it is preserved even
upon the death of the patients. See the World Medical Association International
Code of Medical Ethics adopted by the 3rd General Assembly of the World Medical
Association, London, England, October 1949 which provides that “A PHYSICIAN
SHALL preserve absolute confidentiality on all he knows about his patient even
after the patient has died.”See
also the Physician (Hippocratic) oath taken by physicians to observe
medical ethics part of which is the confidentiality of patient’s information.
This oath is usually incorporated into graduation ceremonies of medical schools
and mostly intended to inspire ethics of the medical profession based on the
writing of Hippocrates. This Oath has been further codified in the Geneva Declaration
(by the World Health Organization) Adopted by the 2nd General
Assembly of the World Medical Association, Geneva, Switzerland, September 1948.
So, with this background do you also think the Federal
Government should have revealed the identity of the first index case, the Italian
man? Many people did not believe this coronavirus before and they were agitating
that if it true, the Government should release information concerning the
Italian man for them to believe. The question is can the
government/the health workers release information about the index case to the
public? The answer is No going by the foregoing expositions.
However, there are exceptions to the rule of confidentiality and these are contained in sections 26(2) and 27 of the National Health Act, 2014. These include:
1. when
the patient gives consent in writing,
2. when
the disclosure is ordered by the court,
3. in
respect of a minor (infant, baby etc) when the parents, guardian requested the
disclosure,
4. in
the case of a patient incapable of giving consent, when the parent or guardian
requested,
5. when
non-disclosure constitute serious threat to public health (it can be
disclosed).
6. A
health worker can also disclose a patient’s health record to any other person,
health provider or establishment for a legitimate purpose where such disclosure is
in the interest of the patient.
Breach
of this right can lead to imprisonment not exceeding two years or a fine of
25,000.00 or both (s. 29 NHA).
Given
this background, it is my submission that a COVID-19 patient’s information can
be disclosed to the Minister/Commissioner/Ministry of Health (pursuant to
NHA/Quarantine Act), NCDC (pursuant to NCDC Act/COVID-19 Regulations), COVID-19
Task Force whether of Federal (pursuant COVID-19 Regulations of FG) or state
(pursuant to COVID-19 Regulations of State Quarantine Act).
Considering
the nature of COVID-19, what the NCDC mostly do is to hide the identity of the
patient under an umbrella term such as ‘index case’ when it is necessary to
announce that such a patient visited a particular place and to request people
who might have come in contact with the patient to self-isolate? NCDC should be
commended for this. It is ultimately professional unlike what Samuel Ortom did
in Benue State.
Samuel
Ortom is the Governor of Benue State. Around 29th of March 2020, he featured
in a press briefing where he announced the first recorded index case in Benue
State allegedly without prior recourse to the patient. He went ahead to mention
the name of the index case to be Susan Okpe. This sparked controversy as to
whether Ortom was legally justified to publicly give out such information about
the patient. Ortom’s argument is that he did it in the public interest so as to
allow for contact tracing. Whether this is right or wrong, the patient has
threatened to sue him and perhaps until then and the pronouncement of court,
the issues is still an open debate.
We
also see the example of Abba Kyari, the Chief of Staff to the President that
was publicly announced. A host of others announced their own themselves e.g.
Governor Nasir el-Rufai, Kaduna State; Gov. Engr. SeyiMakinde, Oyo State, the
GMD of University College Ibadan etc. Ortom might also be justified under the
exceptions contained in section 26(2) and 27 of NHA but until it is tested in
court.
5.0
LEGAL
CONSEQUENCES OF COVID-19 ON EMPLOYMENT, CONTRACTUAL OBLIGATIONS AND COMMERCIAL
ACTIVITIES
No
doubt, COVID-19 and the consequent lockdown have disrupted business activities,
supply and the value chains and it is not without serious legal implications on
contract of employment, commercial contracts/transactions.
On
the contract of employment, employers may be constrained to lay off their
employees for their inability to pay their wages/salaries. Many a contract of
employment does not usually envisage supervening situation/circumstance such as
this and so may not have provisions incorporating force majeure on what should
be in this situation. Whereas if some businesses cease to operate for a month,
it automatically translates to no income and lack of income can quickly cripple
many businesses from being able to pay their workers/employees.
In
private sector, this can prompt the employer to lay off the employees inline
with their contract of employment rather than allow arrears of salaries pile
up. But the fundamental question is; does this pandemic constitute a the supervening event that be invoked to terminate the contract of employment on the
ground of discharge/termination by frustration?
Most
contracts of employment in private sector usually provide for termination which
is either one (or more) months’ notice or one (or more) months’ salary in lieu
of notice. It is therefore easier for the employers of labour in private sector
to relieve/lay off their employees. Wouldn’t a private business owner prefer to
do lay off than keep the employees while the arrears of salaries/wages pile up
especially that the end of the pandemic does not appear near yet?
Once
the terms of the employment are complied with i.e. the necessary notice is
given or the necessary salary in lieu of notice, it may be difficult for an
employee laid off to force himself on the unwilling employer.
Where,
perchance, the employment provides for termination in the event of supervening
situation like this, it is necessary that the termination process is complied
with and the employee is given his/her benefits. International Best Practice
requires that the employer states the reasons for the termination of the
employment (in this circumstance, the COVID-19 pandemic).This international
best practice is contained International Labour Organization (ILO) Termination
of Employment Convention 1982 (No. 158). Though this convention may not have
been domesticated pursuant to section 12 of the 1999 CFRN, section 254 (1),(f)
and (h) of the 1999 CFRN (Third Alteration) and s. 7(6) of the National
Industrial Court Act, 2006 permit the Court to apply international best
practices or interpretation of international labour standards.
Nigeria
courts have not been consistent though and that is perhaps why in Aloysius
v. Diamond Bank Plc [2015] 58 NLLR (Pt. 199) 92at 134 the National
Industrial Court of Nigeria held that the reason for termination of employment
must be given while the Supreme Court held otherwise in Obanye v Union Bank of Nigeria Plc (2018) LPELR 44702 (SC), and maintained the Common
Law position that an employer need not justify the reason for a termination.
Whichever
is the case, none of the court has questioned the right of the employer to
terminate contract of employment so long as the termination provisions are
complied with.
Now
for those in the government sector, it depends on whether their employment has
statutory flavour or not. If it has statutory flavour, the provisions of the
statutes must be complied with otherwise their letter of employment will
dictate the terms of the termination. But it is very much unlikely that the
government will lay off its staff for lack of money to pay salaries. The
government would rather continue to owe them salaries or borrow money to pay
than to lay them off especially in this circumstance. So, it means those in
government are safer in terms of job security than those in private sector.But
again, can the employer suspend or reduce the employee’s salary at this period?
Like
every other contract, employment is also a contract between the employer and
the employee and since the terms of contract cannot be changed or varied
unilaterally by a party, the contract of employment cannot also be unilaterally
changed/varied by the employer.I understand that this is in principle
especially in Nigerian situation. I say this because there is inequality of
bargaining power in employment contract/relations in Nigeria. See Johesu v. Federal Ministry of Health (2016)
65 NLLR (Pt. 229) 84 NIC. Therefore, pay cut, salary reduction or salary
suspension need to be agreed upon by the employees. The employer will need to
engage the employee(s) to get their consents, otherwise, as long the contract
of employment lasts, the employer may be risking litigation if he/she
unilaterally cuts, reduces or suspends salaries of his employees. Similarly, can
the employer treat this period being spent at home now as a compulsory leave
with or without pay for the employee, in which case the employee, will no longer
be entitled to leave after the pandemic?
Section
19 of the Nigerian Labour Act (Cap L1, LFN, 2004) provides for at least six
days paid annual leave and most employment contracts usually state the number
of annual leave days to which an employee is entitled. So, first, much depends
on the nature of the business and whether the employees are working from home
at this period.Where employees are working from home during the lockdown, to
treat such stay at home and supplant them as the leave period for the employees
will constitute unfair labour practice and the court will be inclined to rule
in favour of the employee.
Where
the employees are not working from home, it is still very important that the
employers get the employee to agree. This is the international best practice in
line with ILO Holidays with Pay Convention (Revised) 1970 (No. 132). Otherwise, it
may constitute an unfair labour practice and the employer may be risking
litigation.
Practically,
I acknowledge the unfair and inequality of bargaining power in the employment contract/relations
in Nigeria especially in private sector. Thus, with lack of awareness as
regards their rights and obligations, many employees may have their stay at
home at this period supplanted as their annual leave.
I have had conversations with
people at different platforms where some employers were discussing the
possibility of mandating their employees to take a furlough leave for the period of the lockdown. They feel this will be a
win-win situation for them and their employees.
A Furlough leave envisages a
situation where an employee is given a mandatory suspension from work for a
period of time. Where an organization lacks the financial resources to continue
paying its employees and does not want to lay them off, the organization makes
the employee proceed on furlough leave. The implication is that the employee is
not to do any work and he also receives no salaries but still retains his/her
employment status and rights. During this period the employee can take
advantage of the unemployment benefits of the government or even venture into a business venture of his/her choice.
This practice is well developed
and utilized abroad but as far as I know I do not think there is presently any legal
framework for its application yet in Nigeria. Therefore, it is advisable for an
employer that intends to do this to engage and consult the employee and or
involve the labour Union (in case the employees have unions) otherwise, this may
likely constitute unfair labour practice in Nigeria or consequently be
interpreted as a constructive dismissal of the employee.
Many governments have declared
that their workers should work from home. When Ekiti State announced its own,
my reaction was, on a normal day, these civil servants do not have the
necessary tools to even work from their various offices not to talk of working
from home. And now you tell them to work from home. Where is the computer, the
electricity, the internet access, the data subscription service etc?
As trivial as this may appear
this is the reality of many ministries and government parastatals including
some private sectors in Nigeria today. In this circumstance, if the employee
could not work from home as a result of these constraints, can the employee be
sacked for non-performance?
It is the duty of the employer to
provide necessary tools for the employee to perform the task demanded by the
employment. See Lovell v Blundells and
T.A Crompton &Co.(1943) 77 LI.L Rep 340. But we are talking about
employees of ministries and government parastatals who running into thousands
and the government is, right now, concerned about fighting the COVID-19 pandemic. So,
where will it get the money to start acquiring/procuring tools such as computer,
wi-fi, broadband, etc for the civil servants so that they can work from home?
In essence, the instruction to
work from home is most likely going to remain just an instruction or directive
and it would constitute unfair labour practice to then sack the employee for
non-performance when the employer has failed to provide the necessary tools to
enable the employee work accordingly.
Finally on employment, can the
employee who is working from home during this period be compensated for any
injury sustained while working remotely (from home).Section 73 of the Employee
Compensation Act, 2010, allows an employee to be entitled to compensation for
death or injury, disease or disability suffered in the course of employment.The
provision defines workplace as any place a person performs work or is required
to be in the course of employment.So, in my view, if an employee is required to
work remotely from home by the employer, once the employee is in the course of
the employment the place where he works from may be subsumed under the
definition to be his work place at that relevant time and so, the employee will
equally be entitled to compensation for any injury occasion in the course of
the work.
Concerning
commercial contracts/transactions, in some of these contracts time may be of
essence and since the outbreak of COVID-19 has disrupted such time, it becomes
an issue to assess whether the principle of Force Majuere applies to such
contract. Force Majeure envisages unforeseeable circumstances that prevent
someone from fulfilling a contractual obligation. Thus, where someone is
required by a contract to perform certain obligation within certain period, if
prevented by the outbreak of COVID-19, such a person can plead force majuere to
excuse himself from liability arising out of the failure to perform such
task/obligations.
We
should expect many commercial disputes after COVID-19 as parties may rightly or
wrongly rely on COVID-19 as a force majeure to excuse themselves from
liability. For instance on April 9 2020 Shell declared force majeure on exports
of Nigerian Forcados crude oil after a shutdown by the pipeline’s operator
although there was another report that it later lifted force majeure.
6.0
CAN
CHINA BE SUED FOR THE OUTBREAK OF THIS CORONAVIRUS PANDEMIC?
People
have asked, can China be sued for the outbreak and the spread of this virus,
globally, beyond Wuhan? The answer is not an easy Yes or No. This is because
one needs to first establish that the conduct of China over COVID-19 violates
International Heath Regulations (IHR). Specifically, one will need to prove
that China’s conduct violates articles 6 and 7 of the IHR which require timely
notification and sharing of information on issue constituting public health
emergency. The argument then is, if China had timely notified WHO of the
possibility of human-to-human transmission of the virus and shared necessary
information, it could have been contained and confined only to Wuhan.
The
second task is that one needs to identify the jurisdictional basis for an
international court or tribunal to hold China responsible. This is not an easy
task as the atmosphere is foggy. First, the dispute settlement mechanism
provided by IHR under article 56 is arbitration and arbitration will require
China to submit to the arbitration. Will China submit? Not likely.
Another
likely jurisdictional basis is under article 75 of WHO Constitution. It
provides that any dispute regarding interpretation and application of WHO
Constitution which is not settled by negotiation or Health Assembly shall be
referred to the International Court of Justice (ICJ). This means any party that
will sue China must first explore negotiation, if it fails, also attempt to
settle it through Health Assembly before it can go to ICJ. But the complication
is how to link China’s conduct to violation of WHO Constitution. Remember articles
6 and 7 of IHR are not the same as WHO Constitution.
The
truth is, China is not transparent in this COVID-19 issue and this is perhaps
why few hours ago, Donald Trump ordered the stoppage of USA funding for WHO on
the alleged conspiracy on the part of WHO and its failure to hold China
responsible. The allegations against China include that it withheld information
about its COVID-19 patient zero, that it withheld early reports of medical
staff infection, that it denied human-to-human transmission of the virus from 1st
December 2019 when the virus broke out until 22 January 2020 when WHO
delegation went to Wuhan to conduct a field visit and found result which
suggested human-to-human transmission of the virus, that it also withheld
information about the number of its asymptomatic patients and finally, that it
blocked discussion on COVID-19 at the UN Security Council
Now,
even if one is able to cross all the above hurdles, the place where China can
be sued is at the International Court of Justice (ICJ).The jurisdictions of the
Nigerian Courts do not extend beyond the shore of Nigeria. And so, China being a
country with its own sovereignty cannot be dragged before a Nigerian court.
And
if China is to be sued at the ICJ, it is only Nigeria government (as a country)
that can sue China there. Member states of UN (i,e. countries) or specialized
UN organs are the only recognizable parties who can sue at ICJ. Individuals and
NGOs are not recognized. Though a country can sue on behalf of its citizens but
it still must be the country that sues and not individual citizens. Therefore
in our own context, the question is will Nigeria government sue China? Remember,
Chinese government donated relief materials. The Chinese handle almost every
significant known concession project in the country and Chinese government
funding is visible across almost all African countries, the Chinese are the new
Lord of Africa. And as at now I do not yet know of any pact, convention, treaty
or agreement between China and Nigeria that confers on the Nigeria citizensa
right to hold China accountable in situation such as this.
The
treaty and agreements between China and Nigeria so far border on economic
cooperation and cultural exchange. Therefore, I do not think that Nigeria governmentor
even any African Country will sue China.
I
am aware of the Complaint/Petition to the United Nations Human Rights Council
filed on behalf of India citizens by the Chairman All India Bar Association. I
am equally aware of the case filed at the US District Court by Buzz Photo and 3
others against the People’s Republic of China, the China People’s Liberation
Army, Wuhan Institute of Virology and its Director. This case is filed in the
US pursuant to the US Justice Against Sponsors of Terrorism Act. Will this
action fly? Can US, by its own law subject China to the jurisdiction of its
courts? Will US, as a country too, ever accept to be sued inside China court?
These are questions bordering on international law/international relations. But
they are definitely discussions for another time.
CONCLUSION
This
discussion has identified many legal issues surrounding the covid-19 pandemic in
Nigeria and attempt their analysis. It examined the legal framework for the
control of pandemic and epidemic in Nigeria and rightly situates it within the
context of covid-19 pandemic. This discussion concludes on the note that our
health care system needs serious reform and attention to better position it for
the future. The truth is, this is not going to be the last pandemic so we all
can start thinking of what reform that needs to be put in place. On the basis
of this the author suggests revamping and serious overhauling of the health
sector. We do not have much problem with the legal framework. Our challenge is
funding. All the national health system needs to be properly and adequately
funded. We also need political will and sincerity and readiness on the part the
government at various levels. If we refuse to learn from the lessons of
COVID-19 we will be doomed to repeat the same mistake. And with this, we have
come to the beginning of the end of this discussion today. I thank you all for
your attention. May God continue to bless us with beneficial knowledge. Thank
you for the opportunity.
John Doe
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