One thing most Nigerians are united on this period is how to curb the spread of the rampaging coronavirus pandemic in the country.
While states are adopting several measures to curtail the spread in their territory, the president on Sunday, announced a lockdown of Lagos, Abuja and Ogun state. Although the effort has been widely commended, some lawyers urge that the president’s directive lack legal backing.
In this edition, we sought the views of legal practitioners on when and how the president can exercise the State of Emergency provision in the constitution and the Quarantine Act.
By Henry Ojelu & Dania Onozure
Dr. Olisa Agbakoba, SAN
State of emergency is a declaration in relation to certain events that impede the capacity of the relevant state to carry on the affairs of BBC state but Quarantine relates to the status of infectious disease needing people to be quarantined so while both elements are similar, a state of emergency is more appropriate in the circumstances but this is not the time to quibble over legate so I fully support the president action.
John Odubela SAN
I think mainly the difference between the power of the President under the procedure for declaration of a state of emergency under Section 305 of the constitution of the federal republic of Nigeria 1999 as amended and under the Quarantine Act is the requirement of the former that the President shall immediately after the publication transmits copies of the official Gazette of the Government of the federation containing the proclamation to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting to consider the situation and decide whether or not to pass a resolution approving the proclamation which procedure does not apply in the latter. Let me just explain.
The President has the power under both Section 305 of the Constitution of the Federal Republic of Nigeria 1999 as amended and under the Quarantine Act to issue a proclamation of a state of emergency under the former and a Notice under the latter to declare where there is a danger of an actual breakdown of public order, public safety, imminent danger, the occurrence of any disaster, natural calamity, dangerous infectious diseases, preventing the spread of any dangerous diseases, preventing the transmission, etc.
Whereas under Section 305 of the Constitution such power of the President is exercised by way of a Proclamation of a state of emergency setting out such regulations and things to be done in line with the order, and the President is mandated to immediately transmit copies of the official Gazette to the President of the Senate and the Speaker of the House of Representatives who will then take it to both houses for approval or otherwise.
It is different under the Quarantine Act, where the President exercises such power by making regulations prescribing the steps and regulating such under an executive power without any recourse to the National Assembly which is what the President has done in the present circumstances.
Federal Government did not and has not declared a state of emergency in Lagos State and other affected states but rather restrictions of movement without any laws whatsoever backing the declaration.
The Federal government cannot by regulations restrict the movement of Nigerian citizens without extant laws. Sec 3 of the Quarantine Act empowers the FG to make regulations preventing the spread of contagious disease.
The making of regulations to prevent the spread of infectious disease does not amount to a declaration of the restrictions of the movement of the entire Lagosians, FCT residents, and Ogun State.
The jurisprudential basis behind the Quarantine Act is not the restriction of movement of the people in a state but regulations that will ensure that the disease does not spread such as isolating the infected individuals, places, etc except (the FG is saying that we all in Lagos State and other affected areas are carriers of the disease) and not by shutting down the entire states.
There is no justification for this in law. I am however not averse to any measures put in place to stop the spread of the disease but not to shut down the entire city.
Mr. President is the chief security officer of the country while governors are the chief security officers of the states. All derived their powers from the Constitution of the Federal Republic of Nigeria, 1999 (as amended). They took their oath of offices based on the said constitution not based on subsidiary legislation.
Quarantine Act of 1926 is a subsidiary legislation. Section 1of the constitution refers is clear as to its supremacy to any other law(s), legislation(s) in Nigeria. Chapter 4 of the constitution spelt out clearly the legitimate rights of Nigerians and the inhabitants of the country.
Freedom of movement, right to personal liberty and a host of others are some of the constitutional rights. The constitution makes provision for a state of emergency in the country or any part of it where necessary to be declared by Mr. President.
The Quarantine Act which resulted to its regulations issued and signed by Mr. President which gave birth to the lockdown of Lagos State, Ogun State, and Abuja with due respect to all, it is contrary to the constitutional provisions on supremacy and fundamental human rights as contained in the constitution.
The President of the Federal Republic of Nigeria, this week exercised his powers under sections 3 and 4 of the Quarantine Act by placing Lagos, Ogun and the FCT under lockdown for 14 days commencing on the 30th March 2020 by 11 pm. Shortly after that, Ogun state Government declared there lockdown commences on April 3, 2020.
I am of the view that the actions of the Ogun state government contravenes the regulations made by the President of the Federal Republic of Nigeria. The Quarantine Act (Section 8) permits the State government to make such regulations only when the federal government is yet to make such. In this case, the federal government has made a regulation, so the Ogun state governments were wrong to make the same regulation which is at variance with that of the federal government.
There are no difference between the president’s sit-at-home order and the Quarantine Act invoked today by President Muhammadu Buhari. The Quarantine Act and the 1999 constitution are the extant laws relevant in this situation. The aforementioned laws complement each other and there’s no conflict if methods are rightly followed.
However, the president ought to have commenced his actions based on the provisions of the 1999 Constitution as amended by making a proclamation in line with section 305 of the 1999 constitution as amended, taking into consideration the input of the National Assembly which is sacrosanct and have same published in the National Gazette.
Once that is done, the president can now leverage on section 8 of the Quarantine Act and the constitution to make regulations in accordance with professional advice on the possible strategy to enhance the containment of the pandemic.
If the president had relied only on the Quarantine Act to make regulations without a Proclamation the regulations will have offended the provisions of the fundamental rights of the citizens under chapter 4 of the constitution.
Notwithstanding the aforementioned, the procedures adopted by the President even though belated is inchoate because the input of the National Assembly is lacking. This is the law. Nigerians should stop saying the law should be set aside in times of emergency, the law should be invoked and enforced at all times
Section 305(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) states:
Subject to the provisions of this Constitution stated conditions under which the President may declare a state of emergency.
Section 305(1) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) states: Subject to the provisions of this Constitution, (1) the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.
(2) The President shall immediately after the publication, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.
(3) The President shall have power to issue a Proclamation of a state of emergency only when:
(a) the Federation is at war;
(b) the Federation is in imminent danger of invasion or involvement in a state of war;
(c) there is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
(d) there is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;
(e) there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community in the Federation;
Under Section 41(1) of the Constitution of the Federal Republic of Nigeria, 1999, every citizen is entitled to move freely throughout Nigeria and to reside in any part thereof. However, restriction of movement in some States by presidential order or regulation, even without recourse to the National Assembly in the circumstances of covid-19 pandemic is Constitutional.
The Quarantine Act LFN 2004, is an existing legislation as it is in conformity with the provisions of the Constitution. Under the Quarantine Act LFN 2004, the president has the power, in the interest of public health, to declare any place in Nigeria “an infected local area” and may by regulation prevent the transmission of any dangerous infectious disease from any place within Nigeria or prevent the spread of any dangerous infectious disease by imposing restriction of movement which may include a total lockdown of places where there is a dangerous infectious disease.
“Dangerous infectious disease” under section 2 of the Quarantine Act, means cholera, plague, yellow fever, smallpox and typhus and includes any disease of an infectious or contagious nature which the president may, by notice, declare to be a dangerous infectious disease.
COVID-19 pandemic falls under “plague” in the definition of “dangerous infectious disease” under section 2 of the Quarantine Act. Moreover, all fundamental rights can be circumscribed in the interest of public health. While the Emergency law talks more about any kind of danger or disaster and requiring a cumbersome process, the Quarantine law is specific and dwells solely on health and infectious diseases.
No doubts, the presidential order of lock-down of Abuja and the states of Lagos and Ogun in purported exercise of state of emergency powers, and powers derivable from the quarantine act, as a blanket antidote to the coronavirus scourge, is unconstitutional, wrongful and illegal.
This is because, while the quarantine act limits government’s powers to isolation, care and treatment of victims only of infectious diseases, stricto sensu, the blanket lock-down of Abuja, Lagos and Ogun states and all residents therein who are not victims, is clearly ultre vires the president’s powers vis-a-vis the quarantine act.
On its part, section 305 of the 1999 constitution (as amended) which deals with declaration of a state of emergency, unlike the quarantine act, requires the issuance of declaration by way official gazette, to that effect, with 2/3 majority ratification by members of the national assembly, withing given time of proclamation.
Here, the lock-down proclamation purportedly under section 305 (supra) does not, in law, stand for dual reasons of (1) being in violent conflict with section 44(1) of the constitution and article 14 of the African charter on human and peoples’ rights, all relating to citizens inalienable rights to personal liberty and freedom of movement; and (2) want of strict compliance with the provisions of section 305 referenced above.
Note, too, that mere presidential declaration cannot override the provisions of the constitution, our legal grundnorm, and of the African Charter on Human and Peoples’ Rights(ratification and enforcement) act, the latter act having been judicially adjudged to enjoy superior flavour over and above even the constitution.