Editor’s Note: This piece is part of Just Security’s Assessing Emergency Powers During #COVID-19 series, which aims to highlight legal and civil society voices from across the globe, assessing the specific legal consequences of declared and de facto emergencies. Contributions have covered Italy, Hungary, Brazil, Poland, the United Kingdom, Mexico (see here), and Colombia.
With over 4 million infections and over 300,000 deaths across the globe, the coronavirus disease is spreading rapidly, destroying economies, compelling countries of the world to make tough decisions and to roll out measures aimed at controlling the spread and mitigating impacts of infection. With the same rapidity as its spread, COVID-19 seems to be taking over as the major driver of shrinking civic space in many parts of the world, displacing the popular buzzwords: national security. Growing evidence from across jurisdictions is exposing how State actors are exploiting the pandemic to stifle dissent, clamp down on civic freedoms, and push through restrictive measures, using COVID-19 as a pretext.
In Nigeria, as seen elsewhere, the COVID-19 pandemic is magnifying existing threats to civic space. While it is generally agreed that COVID-19 is a public health emergency threatening the life of the nation — necessitating the application of certain derogation measures — mounting evidence is pointing toward a deliberate exploitation of the pandemic to accelerate other non-health agendas. The database of closing civic spaces in Nigeria is replete with records of disease containment measures radically overstretched beyond context and enforced in ways that hurt civic freedoms. Since 2015, the database has tracked and reported only incidents of socio-political and legal restrictions on online and offline spaces for civil society activities in Nigeria and West Africa. On March 31, a COVID-19 focus was added to the database, following the spikes in human rights abuses. These have included deaths caused by security operatives enforcing the state-mandated lockdown, which was introduced to combat the spread of coronavirus.
Based on the records in the database, three notable trends have emerged revealing the exploitation of COVID-19 health emergency powers to close civic space. The first trend observed is the excessive use of force by State agents to enforce the lockdown. The overzealous conduct of security operatives and other task force officials enforcing lockdowns have resulted in torture, assaults, extortion, and fatal shootings, causing numerous deaths. Not only that, eyewitness reports and video evidence have continued to emerge, showing security forces brazenly using horsewhips and weapons to enforce discipline and compliance with lockdown directives.
The second trend takes the form of State executives overreaching their constitutional powers to advance other objectives unrelated to disease control. Mimicking a federal directive that ordered a total cessation of all social, economic, and political activities in only the three most affected states of Lagos, Ogun, and the nation’s capital Abuja, several Nigerian state governors started closing state waterways, air, and land borders, prohibiting domestic travels even though border and airspace closures fall within the realm of federal jurisdiction. Whether it is the presidential directive prohibiting certain media organizations from covering the activities of the presidency, or the directive to state security agents to either flog those not wearing face masks in public, or shoot-at-sight any person that tries to escape from quarantine and isolation centers, all of these point to overbearing executive behavior disguised as emergency response.
The third trend to watch is the use of legal and regulatory tools to legitimize official restrictions on human rights. Weeks after the first index case of coronavirus infection was recorded in the country, more than 16 different state and federal regulations have been hurriedly enacted to justify the ensuing derogation from constitutionally protected rights. In early May, the Nigerian parliament also attempted to pass an incredibly draconian legislative proposal, Control of Infectious Diseases Bill 2020, designed to enlarge governmental powers to prevent and manage the outbreak of infectious diseases such as COVID-19. Civil society organizations rallied together to challenge the bill, demanding a review of some troubling provisions that: (a) granted overreaching powers to law enforcement officers or the police to apprehend persons suffering from infectious diseases; (b) breached individual privacy, confidentiality agreements, and doctor-patient data privacy; (3) empowered State agents to arbitrarily restrict freedom of association, gatherings, public entertainments; and (4) required State health officials and law enforcement officers to subjectively arrest without warrant, confiscate and demolish properties, and obtain information from any person or organization without any restraint.
One unsurprising outcome of the maze of COVID-19-focused legal frameworks enacted at the federal and state levels is the brewing political tension and jurisdictional confusion, which has seen the federal government locked in conflict with some of the constituent states of the republic. As the popular saying affirms, when two elephants fight, it is the grass that suffers. Consequently, citizens and corporate entities adhering to federal COVID-19 regulations have been found to be acting in contravention of states’ COVID-19 regulations, and vice versa. Scores have been arrested, detained and prosecuted for these seemingly unclear offenses, reinforcing fears of foul play and targeted attacks.
The latest pandemic-induced violations detailed above are not new per se. Long before Nigeria recorded its first case of COVID-19 on February 27, the civic space suffered massive blows arising from a plethora of governmental restrictions framed around the objective of “national security and national interest.” What constitutes national security or the criteria used for making such determinations are not quite clear, or they are, at best, vague. From that vagueness springs legal uncertainty and discretionary power so wide, which are often exercised without accountability. Particularly, beginning in 2015, Nigeria has witnessed a vicious crackdown on social critics, bloggers, journalists, activists and civil society organizations that demanding accountability and challenging official corruption and human rights abuses. Between May 2015 and May 2017, the Closing Spaces Database tracked 264 incidents of crackdowns on free speech, association, religious and assembly rights. Perhaps, the major difference is that pre-existing threats to the civic space previously adorned the garb of national security, but that excuse is now being replaced with the COVID-19 emergency response.
In sum, the pandemic is merely exacerbating existing problems in Nigeria. A comparison of the tactics deployed before the COVID-19 emergency and during it lend credence to this conclusion. In the pre-COVID-19 era, three popular modes of attack—substantially similar to the latter-day tactics—were also observed. First, State actors routinely invoked national security, particularly anti-money laundering (AML) and countering financing of terrorism (CFT) measures, to hound and target critics, including human rights organizations. Unsubstantiated claims accusing activists and organizations of being conduits for money-laundering or financing of terrorism resulted in arrests, detentions, smear campaigns, and forced closures of certain human rights groups. A case in point is the forced closure of the international humanitarian group, Action Against Hunger’s main offices in Borno and Yobe States in northeastern Nigeria on September 18, 2019, following an accusation of “aiding and abetting” Boko Haram, the terrorist organization.
Using AML and CFT regimes as an excuse to target human rights organizations tends to find support in the country’s National Risk Assessment (NRA) for Terrorism Financing (TF) and Money Laundering (ML) (completed in 2016), which identified Designated Non-Financial Businesses and Institutions (DNFIs), of which non-profit organizations (NPO)s are a subset, as being amongst those sectors most vulnerable to money laundering (ML) and terrorist financing (TF). A number of measures proposed in the NRA for countering the ML/TF risks implicates legal restrictions that could potentially constrain non-profit activity, thereby shrinking the civic space. Again, SPACES FOR CHANGE’s | S4C’s 2019 research report, Unpacking the Official Construction of Risks and Vulnerabilities for the Third Sector in Nigeria, challenged the NRA’s assessment of risks for the non-profit sector, disputing the evidential basis for the classification of ML/FT risks, threats and vulnerabilities.
Secondly, restrictive legislative frameworks have always been popular. The tidal wave of restrictive legislations hurriedly enacted in response to COVID-19 merely borrows a leaf from pre-existing state practice. Between 2014 and 2019, the Nigerian parliament considered the passage of several bills that aimed at curtailing the rights to free speech, association, religious and assembly rights, including internet freedom. Some of them include the Non-Governmental Organization Regulatory Commission of Nigeria (Establishment) Bill, 2016 (NGO Bill), Protection from Internet Falsehood and Manipulation Bill 2019 (Social Media Bill) and National Commission for the Prohibition of Hate Speeches Bill 2019(Hate Speech Bill)—all of which generated heated discontent across the polity, triggering push back from human rights organizations.
Thirdly, the litany of arrests, detentions and phantom prosecutions documented on the database between 2015-2019 directly flows from the exploitation of executive powers to perpetuate antidemocratic initiatives that repress human freedoms. Nowadays, State executives advance disease control—instead of national security—as the reason for demolishing commercial buildings, banning religious gatherings, arresting and detaining private citizens, including curtailing the provision of essential services. The spikes in human rights abuses, including over 23 deaths caused by security operatives enforcing the lockdown directives on the orders of various State executives in different parts of the country clearly depict the continuation of bad practice. In essence, the COVID-19 pandemic has accidentally emboldened State actors with authoritarian bents to continue their precarious activities, but now with minimal pushback.
Framing bad state practice as health emergency response presents a new type of challenge for activists and advocates. Invoking the mantra of “public health” and “public safety” to curtail human freedoms allows State actors to secure quick buy-ins and approving nods from large swathes of the population, making it difficult for civil society advocacy against them to gain traction. Again, courts and judicial bodies—in compliance with the lockdown directives—have remained shut, equally obstructing attempts by activists and legal professionals to use the instrumentality of the law to challenge overreaching state conduct. The civil society itself derives legitimacy from the constituencies it serves and as such, does not want to be seen as “enemies of progress,” frustrating official efforts to contain the pandemic. Fearing backlash and reputational harm, civil society responses to executive misbehavior have been overly measured and, sometimes, inconsistent.
These new sets of challenges, if allowed to continue, will send human rights into a free fall, and further shrink civic space in Nigeria. Amid these difficulties, what can be done to shift the narrative? How can citizens reclaim the civic space and expand access to remedies for the rising tide of human rights violations? This is one of the many questions that prompted SPACES FOR CHANGE | S4C to team up with six other organizations—CLEEN Foundation, NOPRIN Foundation, Rule of Law and Accountability Advocacy Center (RULAAC), the Justice Development and Peace Commission (JDPC (Gowon Estate)) and the Network of Pro Bono Lawyers of Nigeria, with support from the Fund for Global Human Rights, to launch the Action Group Legal Helplines with the aim of providing free legal services to persons whose rights are violated as a result of the COVID-19 lockdown measures. After four weeks of teamwork, the legal team handled a total of 103 cases of human rights violations involving indiscriminate arrests, unlawful detention, extortion, assault, domestic violence, stigmatization, and murder.
Thanks to the advancements in digital technology, young Nigerians, in particular, are rising to the challenge, by taking advantage of social media to express their thoughts through various means and ask critical questions about democracy and governance. Undeterred by the restrictions on movement, many Nigerian organizations are also leveraging technology to introduce high-tech initiatives that respond and confront the new threats to civic space. Policies and statutory proposals considered by the Nigerian parliament at this time are now being closely monitored, scrutinized, analyzed, and explained to public at greater speed and less cost. All of these efforts point to a collective will and resilience on the ground to tackle the crackdowns head on, no matter the odds.
Image: A police officer sits on an impounded power bike and interrogates the owner for failing to comply with the sit-at-home order to prevent the spread of COVID-19 coronavirus on Lagos Ibadan expressway, on April 28, 2020. Photo by PIUS UTOMI EKPEI/AFP via Getty Images