By Gozie Francis Moneke, Esq. Executive Director, HREP
Over many years it became a common and accepted practice in different states in Nigeria including Anambra State that during monthly environmental States, which usually holds on the last Saturday of every month, people, are mandates not to move about or go about their normal businesses between the hours of 7am and 10am being the period of the sanitation exercise. The only permissible exceptions or exemptions are people on essential services or duties like medical doctors, nurses, fire servicemen, law enforcement agents, and such other services as may be considered essential. Some States have actually embedded this restriction of movement in their environmental sanitation laws. In Anambra State, it does not seem that any extant law actually prohibits movement of persons on account of sanitation exercise, there may however exist an executive order or white paper to such effect.
Over the years there has been a dilemma in the human rights jurisprudence whether such restriction of movement on account of sanitation exercise does not amount to a breach of the constitutionally guaranteed fundamental right to freedom of movement enshrined under Section 41 under part IV of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended). And environmental sanitation exercise is not one of the exceptions to the freedom of movement envisaged under subsection 2 of section 41. Now, the same Constitution provides in Section 1 (1) that the constitution is supreme and binding on all authorities and persons in Nigeria, and subsection 3 of that Section 1 goes on to say that if any law is inconsistent with the provisions the constitution, such law shall to the extent of its inconsistency be void. If a law properly enacted can be rendered void for inconsistency with the constitution, how much more a mere executive order, direction, white paper, or indeed any action or policy of government.
It is against this backdrop that the recent decision of the young but cerebral and erudite Hon. Justice S. N. Odili of the High Court of Anambra State then sitting at Awka division, on 13th March, 2018 (in Suit No. A/Misc. 310/2017 Barr. Mayor Asiegbu v. Anambra State Government & Ors.) handed down a landmark decision that effectively affirmed the correct position of the law on this subject of discuss. The learned law Lord declared that the restriction of movement of people in Anambra State by the Respondents by themselves or through any of their agencies or agents between the hours of 7.00am and 10.00am on every last Saturday of the month, during the State environmental sanitation exercise is illegal, unconstitutional, null and void for reasons of inconsistency with Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The facts of that case are as follows. The Applicant, Barr. Mayor Asiegbu, a native of Adazi-Ani, in Anaocha LGA of Anambra State, and a Lagos based Legal Practitioner claimed reliefs against the Respondents for allegedly breaching his right to Freedom of Movement on 30th September, 2017. The Applicant alleged that on the said date, at about 7.10am, the Respondents through their officials/agents barricaded the Amawbia axis of Enugu/Onitsha Old Road, in enforcement of "no movement policy" of the State Government during the monthly environmental sanitation exercise, hence, himself and other passengers travelling to Lagos from Awka on board "God is Good" bus were restrained from movement and therefore trapped on the road. As a result of the above, the Applicant claimed that due to the restraint, he and other passengers on board the bus suffered a lot of pressure, stress and trauma, getting to Lagos very late.
The 1st and 2nd Respondents (the Government of Anambra State, and the Attorney General of the State respectively), by their counter affidavit and written address filed on 17th January, 2018, opposed the Application. The 3rd Respondent (the Commissioner of Police, Anambra State) did not file any process in opposition of the suit. At end of hearing the court delivered its Judgment, making the following declarations and orders:
It is hereby declared that the restriction of movement of people in Anambra State by the Respondents themselves or through any of their agencies or agents between the hours of 7.00am and 10.00am on every last Saturday of the month, during the State environmental sanitation exercise is illegal, unconstitutional, null and void for reasons of inconsistency with Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
It is hereby declared that the barricading of Enugu/Onitsha Old Road at Amawbia axis by officials/agents of the Respondents at about 7.10am on 30th of Sept; 2017, thereby restricting the movement of the Applicant, who among other passengers was travelling to Lagos on board "God is Good" Toyota commuter bus, with Delta State registration No. AYB 111 XP is illegal, unconstitutional, null and void, for reasons of inconsistency with Section 41 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
The Respondents are hereby perpetually restrained whether by themselves, officials or agents from further restricting the movement of the Applicant or that of any other person whatsoever in Anambra State, between the hours of 7.00am and 10.00am, during the environmental sanitation exercise of the last Saturday of the month in the State.
N500,000.00 ( Five Hundred Thousand Naira Only) is awarded against the Respondents jointly and severally in favour of the Applicant as compensation for the breach of his right to Freedom of Movement on 30th Sept; 2017.
By virtue of the above Judgement/Ruling, all Anambrarians and other persons who are in Anambra State are legally free to move about their lawful activities during environmental sanitation exercise on every last Saturday of the month without fear of intimidation, arrest or molestation from the law enforcement agents.
It is worthy of note that in arriving at the above decision the Hon. Justice Odili relied on a recent decision of the Court of Appeal, Lagos division in the case of Faith Okafor v. Lagos State Govt. wherein the Court of Appeal held that restriction of movement of persons by the Lagos State Government during environmental sanitation amounts to a breach of the fundamental right to freedom of movement. In that case a young lady was arrested for walking about during a sanitation exercise in Lagos, she among others was thrown into a black maria and taken to a Sanitation Court, where she was summarily tried, found guilty and a fine of N2,000 imposed against her. She later reported her ordeal at the Lagos head office of Human Rights and Empowerment Project Ltd/Gte (HREP), which decided to take the matter to Court. The case was filed at the Lagos State High Court and prosecuted by the senior counsel of HREP, Mr. Ikenna Okoli, Esq. The Lagos State High Court dismissed the case for lack of merit, prompting HREP to proceed on appeal to the Court of Appeal, Lagos division on behalf of the Applicant. Justice Ogakwu, JCA in pronouncing the lead Judgment of the Court of Appeal, held among other things that restriction of movement of persons during environmental sanitation is unconstitutional being in conflict with and a violation of the freedom of movement entrenched under the Constitution.
Now by the doctrine of Stare decisis or judicial precedent, all lower courts are bound to follow the decisions of superior courts on any issue which has been decided by such superior courts. It is on the premise of that doctrine that Justice Odili of Anambra State High Court obviously relied on the binding decision of the Court of Appeal in the said case of Faith Okafor v. Lagos State Govt. to hold that restriction of movement in Anambra State on grounds of environmental sanitation is certainly an affront to the sacrosanct fundamental right to freedom of movement constitutionally guaranteed to all citizens of Nigeria.