President Muhammadu Buhari last week announced a total lockdown in Lagos, Ogun and the Federal Capital Territory (FCT), Abuja for 14 days as part of measures to check the spread of the COVID-19 in the country. Consequently, some lawyers believe that the lack of an enabling legal regime or framework for the President’s action rendered the action illegal and/or unenforceable. Others contend that the President acted within his powers as provided in the Quarantine Act of 1926, Legal Editor JOHN AUSTIN UNACHUKWU reports:
Prior to President Muhammadu Buhari’s lockdown broadcast to the nation, a former President of the Nigerian Bar Association (NBA), Dr. Olisa Agbakoba (SAN) had expressed the urgent need for a Coronavirus Act 2020, to deal with the multiple challenges facing the nation. He argued that the proposed Act would deal with safety, welfare and generally promote peace and good order for Nigeria to confront the pandemic.
He urged lawmakers to pass a Coronavirus Act 2020, within two days, as a matter of urgency like the United Kingdom passed its 2020 Coronavirus Act in two days He said: “On the part of the government, I call on the President and Governors to invoke the provisions of the Quarantine Act, 1926, to order a complete lockdown of the country for at least 14 days as only the toughest possible measures will ensure we are safe.
“The Quarantine law passed in 1926, empowers the president to issue regulations for the safety and protection of Nigerians when in the opinion of the president or state governor there is reason to believe that there is a grave medical or other like danger as a result of an infectious or contagious disease which may pose a danger to the common good of Nigerians. “Coronavirus is real; remember the Spanish flu, which killed 50 million people. With the increased spread of coronavirus also called COVID-19, it is urgent that we cooperate with the government to stop the spread of the virus.
“Please help the government by complying with regulation, staying at home, maintaining social distance and washing your hands regularly,” Agbakoba said. However, Buhari the next day after his broadcast signed the COVID-19 Regulation 2020 into law, to give the lockdown a legal bite. In the regulation, Buhari declared COVID-19 as a “dangerous infectious disease”. Pursuant to that sections 2, 3, and 4 of the Quarantine Act were made public.
The Regulation made provisions for the locking down of the FCT Abuja, Lagos and Ogun states for 14 days. Movements of passenger aircraft, commercial and private jets have been suspended till further notice. The Regulation also made provisions for the deployment of relief materials to satellite communities of Lagos and Abuja.
In a statement by his media office, Buhari was said to have signed the Regulation “in exercise of the powers conferred on him by sections 2, 3 and 4 of the Quarantine Act (CAP Q2 LFN 2004), and all other powers enabling him in that behalf.
Femi Adesina, his spokesman, stated that the Regulation, effective March 30, 2020, “also gave legal backing to the various measures outlined in the President’s broadcast of March 29, such as Restriction/Cessation of Movement in Lagos, FCT and Ogun State and others toward containing the spread of the pandemic.
He stated that: “There had been criticisms of Buhari’s decision to restrict movement in those areas because, according to some lawyers, there was no legal backing. To ensure that Nigerians can still perform on-line transactions and use ATMs during the restriction, “exemption is granted financial system and money markets to allow very skeletal operations in order to keep the system in light operations during the pendency of these regulations,” Adesina said.
However, Lagos-based lawyer and human rights activist, Mr. Ebun-Olu Adegboruwa criticised the action of the President on the ground that it was not initially backed by any legislation and had a seemingly limited application.
In response to Adegboruwa’s criticism, Vice-President Prof Yemi Osinbajo said President Buhari’s COVID-19 lockdown order is legal. He stated that the President invoked an Act of the National Assembly. He said under the Quarantine Act, the President has powers to make regulations of any kind that would curb infectious diseases.
Osinbajo said: “I think it is entirely legal. The steps are proactive, very relevant, important and backed by law. I am not so sure some of the people who have commented on the issue have come across the Quarantine Act. There is a Quarantine Act of 1926, it has been published in all of the Laws of Nigeria, every edition of the Laws of Nigeria, it is there.
“What the Act does is that it allows the President to designate any local area, any part of the country, as a place that may be infected or under the threat of a communicable disease, and he can then make regulations of any kind.
“For instance, he can say, people should not go out; no public gatherings etc. So, it is a regulation that gives the President Powers and these powers come from the National Assembly because, of course, it is an act of the National Assembly.”
According to him, the 1926 Quarantine Act is deemed an act of the National Assembly going “by the virtue of the constitutional rules”. “So, the President has extensive powers under the Quarantine Act of 1926. Also, Governors have extensive powers under the same Quarantine Act,” Osinbajo said. “It is barely a one-page legislation, so it is not particularly difficult to find the relevant provisions and it is not particularly difficult to read, very straightforward. So, the President has all the powers.
“Many of us are not familiar with the influenza pandemic that killed several millions around the world in 1918. At that time, regulations were made here, very similar to what we have today, although that was under the colonial authorities. They also banned public gatherings, banned gatherings in places of worship then. So, there is even good historical precedent for some of what we are doing today,” Osinbajo stated.
Attorney-General and Minister of Justice of the Federation, Mr. Abubakar Malami (SAN), agreed with the Vice President. According to him, the restriction order by Buhari was legal, valid and enforceable and Buhari has powers to restrict movements under the Quarantine Law.
Malami said Adegboruwa was wrong because by the combined effect of sections 5, 14, 20 and 45 of the 1999 Constitution of the Federal Republic of Nigeria and sections 2, 6 and 8 of the Quarantine Act and Article 4 of the International Covenant on Civil and Political Rights and Article 11 on Human and Peoples Right, the declaration by the President, was valid, legal and enforceable. Malami said: “Expectedly, Mr. President’s patriotic step taken above in overriding national interest has been subjected to attack for allegedly being illegal. Ebun-Olu Adegboruwa, SAN, claimed that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly. I wish to note that he did not state any constitutional or statutory provision which the President has breached in the present circumstances.
“It is important to inform the discerning members of the public that the President did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both House of the National Assembly. Even at that Section 305(6)(b) of then1999 Constitution (as amended) permits a proclamation of a State of Emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down.
“Mr. Adegboruwa (SAN) also goofed when he questioned the President’s powers to restrictmovement and claiming that such powers can only be exercised by the State Governors and the respective State Assemblies. It is clear from the President’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious coronavirus disease. The restriction of movement came on the heels of advice received by the President from the Federal Ministry of Health and the NCDC, the two focal agencies in the fight against COVID-19.
“It, therefore, becomes obvious and clear that the restriction order is part of a national quarantine measure. The correct position remains that the President acted rightfully under the powers conferred on him by the Quarantine Act CAP 384 LFN 1990 whose long title reads thus:
“An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases.
“It is not in doubt that COVID-19 is an infectious disease of a contagious nature which the President as rightly declared under Section 2 of the Quarantine Act to be a dangerous infectious disease. Section 3 of the Act enables the President to declare any part of Nigeria as an infected area. Section 4 of the Act further empowers the President to make regulations to prevent the introduction, spread and transmission of any dangerous infectious disease,”
Malami stated. “Section 6 of the Act requires the President and State Governors to provide sanitary stations, buildings and equipment. Thus, in recognition of the critical roles being played by the State Governors in these trying times, the Federal Government has been working with the States in line with the dictates of Section 6of the Act. To this end, the Federal Government is providing a financial stimulus to the Lagos State Government in the sum of N10 billion and to the NCDC in the sum of N6.5 billion for the benefit of the entire 36 States and the FCT.
“I also wish to draw the attention of the public to the provisions of Section 8 of the Quarantine Act which clearly gives high precedence to the President above State Governors in responding to matters of public health. No role is even conferred on the State Houses of Assembly under the Act. Section 8 provides 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.”
The President has notified the concerned States and the total restriction of movement as ordered by the President has not been previously made or implemented in any of the affected areas (Lagos, Ogun and FCT). It is therefore erroneous and mischievous for anyone to claim that the President is usurping the powers of State Governors and State Houses of Assemblies. The foregoing is strengthened by the fact that Quarantine is one of the items under the Exclusive Legislative List under the 1999 Constitution which means that a State House of Assembly cannot legislate on it. The above notwithstanding, going by the doctrine of covering the field, the President did not violate any law.
“The provisions of the Quarantine Act above enjoys constitutional backing under Section 45(1)(a) of the 1999 Constitution being a law that is reasonably justifiable in a democratic society in the interest of public health. Furthermore, it is common knowledge that the COVID-19 is a global pandemic that is crippling nations and economies, therefore, stringent measures at the national level are required. This is not a situation whereby the Federal Government is expected to wait for State Governments to act first. International Treaties to which Nigeria is signatory to recognizes the need to depart or derogate from fundamental rights (especially freedom of movement) obligations in deserving situations (such as public health) – see Article 4 of the International Covenant on Civil and Political Rights, Article 11 of the African Charter on Human and Peoples’ Rights.
“It is also remarkable to note that the President has so far acted in accordance with the executive powers of the Federation conferred on him under Section 5(1) of the 1999 Constitution (as amended) as well as the provisions of Section 14(2)(b) which provides that the security and welfare of the people shall be the primary purpose of government. In the same vein Section 20 of the 1999 Constitution (as amended) requires the States to protect the environment and safeguard the water, air and land of the country.”
Malami said: “This is not the time for technicalities or legal theatrics rather it is a time to stay safe and stay alive. I therefore enjoin all persons, entities and authorities to ensure strict compliance with the restriction order and the exemptions thereto as issued by the President in the overall good of our people and dear nation. Says Covid-19.”
In a rejoinder to the Attorney-General’s position and that of Femi Adesina, Adegboruwa said the Regulation made by the President was illegal because Quarantine Act applies to only those infected. He said: “The Quarantine Act has no provision for the restriction of the movement of any citizen. A fundamental right expressly granted by the Constitution cannot be taken away by assumption, inference or deductions.
“Section 41 (1) of the 1999 Constitution expressly donates freedom of movement to all citizens and it cannot be taken away by way of executive proclamations or regulations, as an executive regulation cannot in law take away a fundamental right granted by the Constitution.
“The Quarantine Act of 1926, as its name and provisions connote, is meant for the isolation, care and treatment of victims of infectious diseases simpliciter, for the purpose of isolating them away from interacting with other members of the public, generally. A law enacted for the benefit of those not infected by any disease cannot and should not be twisted to restrain them.”
On the scope and origin of the Quarantine Act, Adegboruwa stated that: “The practice of quarantine evolved in or about 1423 in Venice, which had a quarantine station on an island to check the growth of diseases brought by ships, by isolating and detaining ships containing person or animals suspected of having or carrying a dangerous communicable disease. To this end, ships arriving in Venice from infected ports were required to sit at anchor for 40 days before landing. Quarantine is thus derived from the Italian words quaranta gioni, which means 40 days.
“A regulation made under and pursuant to quarantine is never to be extended to abridge extant fundamental rights declared under the Constitution. Indeed, such regulation must not be in conflict with any subsisting legislation, such as Section 41 of the Constitution, granting freedom of movement. Without any doubt, the President cannot rely on the Quarantine Act as the basis for seeking to restrict the movement of citizens, being a fundamental right guaranteed under Section 41 of the Constitution.”
The manifest illegality of the Regulation made by the President ” by saying that “For the President to be entitled to make any regulation under sections 4 and 8 of the Quarantine Act, he must have complied with bthe conditions precedent laid down in sections 2 and 3 of the said Act, namely that:
(i) The President must first make a declaration of an infectious disease, by a notice duly published in the Official Gazette, stating such to be an infectious disease within the meaning of the Quarantine Act. That has not been done, making the regulation made by the President to be inchoate and premature. For instance, in the first subsidiary legislation contained in the Schedule to the Quarantine Act, a declaration was made concerning Sleeping Sickness, to be a dangerous disease within the meaning of the Act.
(ii) In addition to the above, the President must also make another declaration, by notice in the Official Gazette, stating the particular place affected as an Infected Local Area and such must be a well-defined area, such as a local government, a town or a community, and not just a blanket tag. This has not been done.
How then do we lock down citizens and detain them forcefully for two weeks, in one single spot, without any charge or offence alleged against them?” He said: “The only regulation so far made under the Quarantine Act is the Quarantine (Ships) Regulations of December 4, 1968, containing 28 sections and 8 Schedules. There is no single provision therein, restricting the movement of persons. This is because the practice of quarantine has nothing to do with restricting movement of persons but rather to isolate those carrying infectious diseases. So, even under the Quarantine Act, the President has acted illegally.”
“Section 305 (3) (d) of the Constitution permits the President to declare a state of emergency in any part of Nigeria through an instrument published in the official gazette when “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.
“The COVID-19 pandemic qualifies an imminent danger, a disaster and a natural calamity. The President should have explored this window for his declaration.
“Where the President declares a state of emergency under Section 305, he must transmit a copy of the official gazette to the National Assembly to pass a resolution for its approval or rejection. Such declaration will cease to have effect if after two days of the National Assembly being in session or after ten days its being out of session; it is not approved by the National Assembly through a resolution.
“We cannot take away the fundamental rights of citizens through executive proclamations made on the altar of some exigency or self-induced necessity, as the President had enough time since COVID 19 broke out, to have taken all reasonable steps within the law, to address it.” Adegboruwa said that he was “not opposed to the steps taken by the President and some Governors, to address the COVID 19 pandemic. I align myself totally with these measures for the safeguard of citizens; however, my primary concern is not to resort to a violation of the Constitution under the guise of exigency, as that could well be a dangerous signal for perpetrating illegality, even in the time of peace.
“It gladdens my heart greatly that Attorney-General of the Federation and my learned brother Silk, Mr. Abubakar Malami, SAN, is making very copious references to international protocols to support the breach of the fundamental rights ofcitizens, hoping well that when we seek to rely on these same protocols to enforce fundamental rights in future, they will not become foreign laws of western nations, Adegboruwa stated.
Reacting to the broadcast, former President of the West Afrian Bar Association (WABA) Mr. Femi Falana (SAN) said Femi Falana, said “Presidential Order not enforceable without legal backing.
Falana said: “Following the national broadcast of President Buhari on the COVID-19 pandemic, some lawyers have questioned the constitutional validity of the restriction of locomotion of people in Abuja, Lagos and Ogun states. No doubt, the President is empowered to adopt any measures deemed fit to combat the dangerous disease but such measures have to be spelt out in a Regulation made pursuant to Section 305 of the Constitution or under the Quarantine Act. Otherwise, the presidential order on the restriction of movement in the affected areas cannot be enforced by the police.”
He went on: “Even though civil rule was restored in the country 21 years ago, the psyche of the political class has not been demilitarised. Hence, decisions taken by rulers are required to be obeyed “with immediate effect” without any legal backing. But in Okafor v Governor of Lagos State (2016) LPELR-41066 (CA) the Court of Appeal called on all authorities to appreciate the need to govern the country under the rule of law. Thus, the directive of the Governor of Lagos State restricting the movement of citizens and residents during the State’s monthly environmental sanitation exercise was struck down because of its unconstitutionality. It was the unanimous view of their Lordshipsthat the arrest of the appellant for flouting the order or directive of the Governor was completely illegal.”
Falana concluded that: “Just last week the satanic Boko Haram force was reported to have massacred 47 Nigerian troops and 92 Chadian soldiers in two separate attacks. In view of such enormous challenge, our patriotic armed forces should concentrate efforts on the counter-insurgency operations being carried out in the Northeast region while the police and allied security agencies are to enforce the COVID-19 regulations and guidelines.” Falana stated
The Secretary to the Government of the Federation (SGF), Mr. Boss Mustapha, said that lockdown in Ogun, Lagos, FCT is not illegal.
He said: “As a measure to stop the spread of COVID-19, President Muhammadu Buhari had ordered the lockdown in FCT and the two states. Prior to the President’s order, some governors had ordered restrictions of movement in their states. But the SGF, who also heads the Presidential Task Force on COVID-19, during a briefing on Monday, said the President’s order was definitive and categorical.
“As a nation, our response must be guided, systematic and professional. There is a need for consistency across the nation,” he said.
“All inconsistencies in policy guidelines between federal and state agencies will be eliminated. I refer you to Paragraph 29 of the President’s broadcast. We are mindful of the fact that there are those inconsistencies in policies. Such states began to implement their lockdown before the president’s broadcast.
“The President’s broadcast was very definitive and categorical; we are only locking down Lagos, Ogun and the federal capital. Those are the only three designated areas for the lockdown now.”
Mustapha said he would get across to security personnel in states where borders have been shut in order to enlighten them on the directive of the President. Some travellers had been stranded as a result of closure of borders in some states.
“I will make some calls to some security agencies in those borders. I expected that after Mr. President’s broadcast what should ordinarily happen is that, if you had stopped people from getting to their destinations that broadcast should have enabled you release those people to get to their destinations,” Mustapha said.
“You can put proactive measures like a toll gate to ensure that you test them and allow them get to their destinations. That was what we did at the airport before we finally locked down the airport.”
The Deputy Vice-Chancellor for Academics, Research, Innovation and Strategic Partnerships (ARISP), of Afe Babalola University, Ado Ekiti (ABUAD), Prof Damilola S. Olawuyi, said President Buhari’s COVID-19 Regulation aligns with international best practices on infectious disease control. He commended the President for the COVID-19 Regulation 2020 which declares COVID-19 as a “dangerous infectious disease.
He said: “Curbing the spread of infectious diseases is not a role for health practitioners or institutions alone. The linkages between environmental protection and the attainment of good heath have consequently gained strong recognition in international law. Environmental infection control is the integrated management of infection prevention and control programmes to reflect curative and preventive activities (such as good environmental practices, proper sanitation, water quality control and economic interventions) as means of safeguarding public health.”
He commended President Buhari for putting in place a coherent legal order that anticipates and responds to the potential impact of COVID-19 on all aspects of the Nigerian society. The University don stated that since the Ebola Crisis in 2014, he has consistently advocated that the key provisions of the Quarantine Act 1926, The Quarantine (Ships) Regulations 1968, The Agriculture (Control of Importation) Act of 1964, The Factories Act of 1987, and the NESREA Act, amongst others, provide adequate legal foundations and bases for policy and regulatory intervention in preventing the introduction and spread of infectious diseases in Nigeria. What has been lacking is a timely and holistic implementation.
He noted that coming at a time of real need; it is a big relief to see the President activating the legal powers conferred on him by sections 2, 3 and 4 of the Quarantine Act. The COVID- 19 Regulation provides timely, incisive and well-needed legal framework for all agencies to work together to pursue a coherent and coordinated agenda to rid Nigeria of COVID-19. It is a welcome development’ Olawuyi concluded that COVID-19 should not be viewed and discussed only as a threat, rather it equally provides an opportunity for public and private entities to come together and play proactive roles in promoting best practices on environmental infection.
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