Constitutionality of Presidential Restrictive Order on Covid — 19 in Lagos, Ogun and Abuja*
It is no longer rumour that Nigeria has now recorded its name on the list of countries affected by the Coronavirus a.k.a Covid — 19 ravaging the world. Other countries inflicted include, China, Italy, Spain, United Kingdom, United States of America, United Arabs Emirates, South Africa, Ghana amongst others. The first index case occurred in Lagos and has now spread to several other states of the federation in Nigeria. In the bid to control the spread and transmission of the disease, the President of the Federal Republic of Nigeria addressed the country and declared on 29th March, 2020 in a national broadcast at about 19:00pm amongst other things in Paragraphs 34 and 35 as follows:
34. Based on the advice of the Federal Ministry of Health and the NCDC, I am directing the cessation of all movements in Lagos and the FCT for an initial period of 14 days with effect from 30th March, 2020. This restriction will also apply to Ogun State due to its close proximity to Lagos and the high traffic between the two States
35. All citizens in these areas are to stay in their homes. Travel to or from other states should be postponed. All businesses and offices within these locations should be fully closed during this period
In a reactionary manner, there have been several legal views and opinions expressed by elites and legal practitioners especially on social media and other fora regarding the President’s initiative to prevent and or combating the transmission of the Covid — 19 in any part of the country. Amongst the commentators are Prof Wole Soyinka, Mr. Inibehe Effiong, and Mr. Ebun-Olu Adegboruwa, SAN. I find the 7-paragraph piece written by learned Senior Advocate, Mr. Ebun-Olu Adegboruwa circulated on 29/03/2020 particularly interesting. It is titled “proposed restriction of movement in Abuja, Lagos and Ogun by presidential fiat is illegal”. Summarily, the learned silk exclaimed in paragraph 4 of the opinion thus:
It is only the Governor of the State through the House of Assembly of the State that can only make any declaration concerning the people of that State. Little wonder that the President could not cite any law that he relied upon for his declaration.
While the learned silk seemed to be supportive of every measure taken to contain the Coronavirus pandemic, albeit, such must be in accordance with law. He then urged “the President to reverse the restrictions and work with the States concerned in accordance with the laws of our land”. Perhaps, the starting point for me is to ask what are the laws of our land for consideration in exercising the executive power of the federation in containing Covid — 19? I guess the 1999 Constitution (as amended), all laws made by the National Assembly, and followed by relevant international conventions to which Nigeria is signatory and has ratified by way of domestication. It is only when the President acts contrary to any of the above mentioned laws that one may fault the action of the president in the circumstance. In this piece, I respectfully hold a contrary view to the learned silk’s contention and maintain that the restrictive order on Covid — 19 in Lagos, Ogun and Abuja or any place in Nigeria is in accordance with law of the land. The call for a reversal is baseless and this is demonstrated below.
By Section 2(1)(2) of the 1999 Constitution (as amended), the intention of the drafters is clearly stated in providing as follows:
Nigeria is one indivisible and indissoluble sovereign State to be known by the name of Federal Republic of Nigeria. Nigeria shall be a federation consisting of states and a federal capital territory.
In exercising the executive powers of the federation which Nigeria is, Section 5(1)(a — b) vest Mr. President with the powers which includes execution and maintenance of the Constitution, all laws made by the National Assembly and all matters with respect to which the National Assembly has power to make laws for the time being. By Section 315(4)(b) of the 1999 Constitution, the Quarantine Act of 1926 (herein referred to as the Act) is an existing law which has effect and in conformity with the provisions of the Constitution. The Quarantine Act is listed and codified as Cap Q2 LFN, 2004 in our statute book. The Act now being an Act of the National Assembly envisages the situation like this and clothes the President with the following powers. For proper understanding, I shall quote ad literal lem:
Section 3 of the Act provides thus:
The President may, by notice, declare any place whether within or without Nigeria to be an infected local area, and thereupon such place shall be an infected local area within the meaning of this Act.
Section 4 states:
The President may make regulations for all or any of the following purposes —
a. prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria,being declared to be an infected local area;
b. prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place is an infected local area or not;
c. preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria;
d. preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;
e. prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
f. fixing the fees and charges to be paid for any matter or thing to be done under such regulations, and prescribing the persons by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such regulations shall be borne, and the persons from whom any such expenses incurred by the Government may be recovered;
g. generally for carrying out the purposes and provisions of this Act.
Section 8 of the Act envisages the federal structure of the country and recognizes the power of a State Governor. It provides for the powers of a State in dealing with quarantine and this is even subject to circumstance where the President has not made or exercised such powers. It states thus:
If, and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations may be exercised in respect of a State, by the Governor thereof as fully as such power may be exercised by the President, and subject to the same conditions and limitations.
It needs be said that for all intent and purpose, Covid — 19 qualifies as dangerous infectious disease that requires quarantine order. This is not in doubt considering the provision of Section 2 of the Act which states thus:
In this Act, unless the context otherwise requires —
“dangerous infectious disease” 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 within the meaning of this Act;
The historical fact of transmission of Covid — 19 into Nigeria is that an Italian came into the country through Lagos airport and made contact with some Nigerians thereby infected his contacts with the virus. Since then, the number has been increasing daily. By the statistical data provided by the Nigerian Center for Diseases Control (NCDC), the Covid — 19 has been recorded in Lagos, Ogun, FCT-Abuja, Rivers, Oyo, Osun, Kaduna and still counting. Admittedly, the Act does not mention “Covid — 19” but it is covered by the clause “any disease of an infectious or contagious nature which the President may, by notice, declare to be a dangerous infectious disease within the meaning of this Act.” The global description of the scourge “coronavirus pandemic” is enough to declare any part of Nigeria or within the territorial limit of the Federal Republic of Nigeria a local infected area which President has lawfully done.
It is submitted that since Nigeria is a federation, one indivisible and indissoluble entity, the President’s exercise of its executive powers on Covid — 19 in Lagos, Ogun and Abuja or any place within Nigeria is unassailable. The decision of the Supreme Court in Attorney General of Eastern Region v. Attorney General of the Federation (1964) 3PLR 16 SC judgment delivered on 29th June, 1964 further reinforces the point that President can control the citizen of Nigeria in any state because they are people or citizens of the Federation and not the indigenship of a State. As a matter of fact and law, the existence of a State within the federation is for administrative convenience.
The purpose of the Quarantine Act is to ensure that any disease declared to be dangerous, infectious or contagious such as Covid — 19 is not spread to any other part of the country irrespective of the strata of government. Assuming without conceding that the President is not empowered to make regulations to deal with dangerous infectious diseases like Covid — 19, the doctrine of necessity would avail him in the discharge of his constitutional duty to protect the citizens of Nigeria. One wonders if the President’s critics expect him to fold his arms until the entire federation is ravaged!!!
The argument on the illegality of the President’s restrictive order is further flawed when considering the criticism against the Presidential strategy in fighting against Boko-Haram. No one had called on the Governor of the affected States to act but the office of the President. Of course, I agree entirely that Mr. President bears the responsibility as he does on Covid — 19. If the governmental statum of stateism in this circumstance is correct, there would not have been any basis calling the President to take action over insurgents, terrorism and Boko-Haram incidents in other State like Borno, Kaduna, Katsina to mention but a few. For argument sake, it reasonable to say that Covid — 19 constitutes threat to the common existence of the federation which is the basis of the President’s constitutional duty.
Some other persons have premised their criticism on the ground that the Presidential restrictive order amounts to declaration of state of emergency albeit erroneously. In support of the erroneous contention, they have referred to presidential powers under Section 305(f) of the Constitution. This is not only otiose but also mischievous. This is because, the President has not declared a state of emergency in any part of the country let alone the alleged procedural defect. I think the argument should have been against the delay in exercising the power under the Quarantine Act rather than challenging the lawful action of the President. The Governor of Lagos State must be commended on this point having taken the bull by the horn in recognizing his power under Section 8 of the Quarantine Act and made spontaneous regulations to prevent the spread and transmission of the Covid — 19 in the fragmental part of the federation to make up for the long-awaited Presidential regulation at the material time.
Finally, many people do not realize that the President did not swear to protect the indigenes of any state in Nigeria as such nomenclature does not exist. He swore to defend the territory of Nigeria and protect the lives and properties of Nigerians, I mean to say the citizens of Nigeria. To my mind, the President’s restrictive order is in the interest of all Nigerians. That being said, this piece will be incomplete without an appeal to the President to make available relief funds and materials to the citizens resident in those States where the restrictive orders are directed as is being done in other countries like USA, UK and UAE.
God bless Nigeria and Nigerians as we stay at home in compliance with the presidential restrictive order failing which a defaulter risks a fine, jail term or both by a magistrate as provided in Section 5 of the Quarantine Act.
*Bashir Ramoni, Partner in SimmonsCooper Partners writes from Lagos
