Law News
ECOWAS Protocol, Nigerian law and Ebola
Minister of Interior, Abba Moro

Minister of Interior, Abba Moro

After the establishment of the Economic Community of West African States through the Treaty of Lagos in 1975, the organisation met in Dakar on May 29, 1979 and signed the ECOWAS Protocol Relating to Free Movement of Persons, Right of Residence and Establishment.

The First Phase implementation of the Protocol commenced some years after and granted citizens of member states free access into one another except with few cases of entry denial.

Upon the outbreak of the Ebola Virus Disease this year, the freedom of entry and exit hitherto enjoyed by ECOWAS citizens in member states seems to have been curtailed. For instance, some countries closed their borders against the Ebola high risk countries like Liberia, Sierra Leone and Guinea while others set higher entry standards for visitors or residents from these countries.

One needs not demand the justification for these radical measures in view of the blatant and wicked abuse of the right of entry into member territories by some infected persons most exemplified by Patrick Sawyer, the Liberian-American, who imported the Ebola Virus Disease into Nigeria.

Since the sad debut of the Ebola Virus Disease on Nigerian soil through its Liberian-American courier, curious observers have had to ask a number of questions concerning the position of the Nigerian law vis-à-vis the ECOWAS Protocol, legal position on closure of borders against infected citizens of ECOWAS member states, the legal implication or consequence of sinister entering into Nigeria by infected person(s) and what these events portend for the future of the ECOWAS hence, this piece.

The ECOWAS Treaty, laying the foundation for the free movement of citizens, called on member states in Article 2(2) (d) to ensure the abolition of the obstacles to free movement of persons, services and capital and in Article 27 (1) confers the status of community citizenship on the citizens of member states, and also enjoins member states to abolish all obstacles to freedom of movement and residence within the Community.

In the same spirit, Article 27(2) of the Treaty further calls on member states to exempt Community citizens from holding visitor’s visa and residence permits and allow them to work and undertake commercial and industrial activities within their territories.

In keeping faith with the Treaty, the ECOWAS Protocol in its First Phase implementation abolished Visas and Entry Permits and require only a valid travel document for ECOWAS citizens to enter member state. In its Article 1, the Protocol defines “a valid travel document” to mean “a passport or any other valid travel document establishing the identity of the holder with his photograph, issued by or on behalf of the member state of which he is a citizen and on which endorsement by immigration and emigration authorities may be made”. A valid travel document shall also include a laissez-passer issued by the Community to its officials establishing the identity of the holder. Without more, all that an ECOWAS citizen requires in order to travel from one member state to another is his valid travel document – not visa.

To a cursory observer, this provision appears attractive, but its shortcomings lie in the countless abuse by immigrants and its improper administration by Nigerian and other ECOWAS States immigration officers and other authorities charged with the responsibilities of seeing to its rational and lawful implementation. For instance, apart from the passport or laissez-passer that an ECOWAS immigrant is mandated to tender at the point of entrance, he is also required to present an International Health Certificate. This is provided for in Article 3 (1) of the Protocol thus: “Any citizen of the Community who wishes to enter the territory of any other member state shall be required to possess a valid travel document and an International Health Certificate.”

It is clear that Sawyer, for example, never tendered any International Health Certificate at the point of entry, if he did, such certificate was neither current nor valid. Yet, it is still to be desired that there is a reliable and scientific way of verifying the validity of the Health Certificate just as it is desired that the immigration officers do their job well.

It is more than a mere coincidence and fleeting relevance that the wrongful entry into Nigeria by this Liberian who infected the healthy nation with an incurable but fortunately curtailed Ebola Virus Disease on the liberty granted to him vide his ECOWAS passport, occurred on the occasion of an ECOWAS conference to be held in Nigeria where the organisation was born. Nothing more puts a question mark behind the Protocol on the free movement of persons and demonstrated the need to set new standards. This becomes important as it was clear that the Liberian Deputy Finance Minister for Fiscal Affairs, Sebastian Muah, who cleared Sawyer for the Nigeria trip ought to be aware of his status because the Minister for Information Mr. Lewis Brown admitted that the Liberian Government was aware.

It is clear from all indications that the Liberian Government was more interested in the holding of the ECOWAS conference than respecting the ECOWAS Protocol which insists on clean bill of health before venturing into member state, more so when Liberia is facing a serious scourge of the disease highly contagious in nature.

On the part of Nigeria as a nation, the Constitution mandates in Section 14(2) (b) that “the security and welfare of the people shall be the primary purpose of government” and in Section 19(a) puts “promotion and protection of the national interest” as the first foreign policy objective. Even Article 4 of the Protocol under discussion provides that “member states shall reserve the right to refuse admission into their territory any Community citizen who comes within the category of inadmissible immigrants under its laws”. So, the law protects the nation’s right to admit or refuse disqualified alien entrance into the country.

In line with this, Section 18 of the Immigration Act Cap I1, Laws of the Federation of Nigeria 2004 listed out persons that falls within the category of prohibited immigrants and the relevant one being sub-section 1, paragraph (d) namely, “any person whose admission would, in the opinion of the minister, be contrary to the interest of national security”. Although this provision does not expressly mention persons with infectious, incurable disease like Ebola, the categorisation is however wide enough to cover it, as the question of whether Sawyer was a threat to national security would always be answered in the affirmative. More so, the power of the Minister of Interior to prohibit an immigrant from entering Nigeria is unfettered. Section 18(2) permits the minister at any time by notice, “if he deems it conducive to the public good may prohibit the entry into or stay in Nigeria of any other persons or class of persons…”

Besides the powers of the minister under the highlighted section, at the point of disembarking from the aircraft, every passenger is required by Nigerian laws to present to the immigration officer his International Health Certificate. Once the certificate fails the requirement of the Director of Immigration or an immigration officer has any cause to suspect the immigrant’s state of health, he is required by Section 3(2) of the Immigration Act to submit to such medical examination or vaccination as a medical inspector may reasonably require.

By the provision of Section 50(d), an immigration officer is empowered to refuse any person into Nigeria if it appears to him, on the advice of a medical inspector, that it is undesirable for medical reasons to admit such person.

It is therefore queer that Sawyer was admitted into Nigeria despite all of these safeguards provided by the law. It is submitted that neither the medical inspector nor the other immigration officers on duty did their job diligently or did it at all. This conclusion is justified by the fact that a dutiful officer in such circumstance would refuse him entry, and further justified by the fact that Sawyer was visibly ill when he arrived Nigeria as he had to be rushed to First Consultant Hospital from the airport.

This is beyond doubt as the CCTV at the airport where he boarded reportedly showed him lying on his belly on the floor with an anguished countenance. Besides, the fact that Sawyer was arriving from Liberia is enough to put a discreet medical inspector or immigration officer on the red alert. The two ministers – Interior and Health – who jointly appoint the medical inspector and who also have oversight responsibilities in this regard ought to be answerable for this monumental slip.

This was an entry through one of the appropriate entry points not one of those illegal clandestine border crossing by immigrants! Our processes ought to properly function to detect and arrest the entry.

Without dwelling much on the need to improve our Immigration Act by expanding for instance, the list of prohibited immigrants should include persons with incurable infectious diseases. It is important to revisit ECOWAS and her instruments. There is a need for ECOWAS to be more proactive and steadfastly committed to ridding the region of this scourge.

Now, if we advocate punishment for negligent immigration officers in Nigeria, it is only reasonable that the root is attacked. We expect that ECOWAS gets Liberia to mete out appropriate punishment to its minister who approved Sawyer’s travel to Nigeria and every other Liberian who played an indictable role in it.

It is sympathetic that an historic nation is facing this challenge and President Sirleaf’s pain is sincerely shared just as her apologies are understandably welcomed but it is an act that requires some positive legal deterrence. As a first step, it is recommended that a supplementary protocol be made to the ECOWAS Protocol on free movement in which free movement of persons with incurable infectious diseases from one member state to another is restricted.

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