INTRODUCTION

The  Constitution of the  Federal Republic of Nigeria, 1999  as amended, (hereafter referred to as CFRN 1999) prioritizes the security and welfare of the  people  as the  primary purpose of government.

It is therefore not surprising but commendable that government adopts measures or courses of action to guarantee the security and welfare of the people.  It is on this footing amongst others that a government may adopt the best approach to discharge this duty.

In recent times, the globe has been  besieged with the covid-19  pandemic and Nigeria has not been left out. The federal government and some state governments in Nigeria have laid down some legal frameworks to combat and curtail the spread of the virus. As usual, Lagos State led the vanguard by   coming  up   with   the   Emergency  Dangerous  Infectious  Diseases Regulations to amongst others, restrict the  movement of people,  put  a temporary halt on economic and other activities in order to contain the community spread of the covid-19.  This bold and laudable step has been emulated by Edo State by providing for the Edo State Dangerous Infectious Diseases (Emergency Prevention) Regulations 2020 (hereafter called Emergency Regulations 2020)  signed by the Edo  State Governor on 30th March, 2020.  It is against this backdrop that this article seeks to examine the constitutionality of the Emergency Regulations 2020.

LEGISLATIVE POWERS OF THE FEDERATION AND THE STATES

The exercise of legislative powers by the federal government and state governments is well delineated in Section 4 of the CFRN 1999 and can only be   exercised  by   the   National  Assembly  and  Houses  of  Assembly respectively.    The  National Assembly  has  power  to make laws for  the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List to the exclusion of the Houses  of  Assembly  of  States,  save as  otherwise  provided   in  the constitution.  The  legislative  power  of  the  National  Assembly  further extends to any matter in the concurrent legislative list and any other matter with respect to which it is empowered to make laws in accordance with the provisions of the constitution.

On the other hand, the House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part  thereof  with  respect  to  any matter  not  included in  the  Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution; any matter included in the Concurrent Legislative List set out in the first column  of Part II of the Second Schedule to the Constitution to the extent prescribed  in the second column  opposite thereto and any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. This was accorded judicial blessing by the Supreme Court in the case of AG OGUN STATE v. AG FEDERATION.

The CFRN 1999 also insightfully contemplates a situation whereby the law of a House of Assembly validly enacted conflicts with validly enacted law of the  National Assembly.  In  such circumstance, the  law made by  the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.

EXCLUSIVITY OF PROVISIONS OF THE EXCLUSIVE LIST

It is trite that the items contained in the exclusive list of CFRN 1999 are for legislation by the federal government through the National Assembly to the exclusion of all others. This is well enshrined in S.4 (2) and (3) of the CFRN

  1. The Exclusive List is contained in Part 1 of the 2nd Schedule to the CFRN 1999 and item  54  thereof particularly sets out  quarantine as a component  of  the  exclusive  list.  By  this  constitutional  provision,  it therefore means that only the National Assembly can constitutionally and validly  enact  a  law  on  quarantine  in  Nigeria  and  by  constitutional implication, only the executive  body of the federal government can validly execute   any such law on  quarantine  or derive  power  thereof.  This is because the National Assembly cannot make a law directing the executive of a state to act or not act since its legislative powers does not extend to a state government by virtue of the doctrine of separation of powers as such would amount to legislative incursion into the realm of an independent but coordinate   government.   In   the   case  of  AG  OGUN   STATE  v.   AG FEDERATION (supra), the Apex Court at p.33  paras. E-F held  per Atanda Fatai-Williams as follows: “Neither the President of the Federal Republic of Nigeria nor the  National Assembly  can  unilaterally confer powers on a State functionary such as the Governor or the Attorney General of a State…”

It therefore follows that a state government or any of its agencies cannot validly and constitutionally derive powers from a law made by the National Assembly on any of the items in the exclusive list. There is need  at this point  to examine the  provision of S.8 of the  Quarantine Act 1926.  The section provides for “State and Quarantine Powers” as follows:

“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 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 is apposite to state that sections 2, 3 and 4 of the Quarantine Act provide for interpretation (defining only  dangerous infectious disease and local area); power to declare any place an infected local area and power to make regulations by the president respectively.

It is my humble  contention  and submission that S.8 of the Quarantine Act is contrary to the CFRN 1999  and is caught by S.1 (3) of the CFRN 1999. This is because S.8 of the  Quarantine  Act  unconstitutionally  donated power to the Governor of a state contrary  to sections 4 and 5 of CFRN

  1. The executive power of a state is vested in the executive  governor and may only  be  exercised  by  the  deputy  governor,  commissioner  or officers in the public  service of the state government and can extend  to execution  and maintenance of all laws made by the House of Assembly and only to matters the House of Assembly has power to make laws as provided  in  S.5 (2)  (a) and (b)  CFRN 1999.  It is evidently  clear that a governor cannot validly derive power from a law that is not made by the House of Assembly in line with the CFRN 1999.  It is therefore submitted that the Emergency Regulations 2020  of Edo state is null and void to the extent of its inconsistency with CFRN 1999.

Assuming without conceding that the Emergency Regulations 2020 of Edo State is not void as espoused above, it is still not in conformity with the Quarantine Act. By 30th   March 2020,  Covid-19 Regulations 2020  made by the President pursuant to sections 2, 3 and 4 of the Quarantine Act came into force of law. What is more? The supposed power albeit unconstitutionally given to a state governor  under  S.8 of Quarantine  Act can only  be  exercised  where  the  President  has not  made regulations pursuant to S.4 of the Quarantine Act. The Emergency Regulations 2020 of Edo state was made by the Governor on 30th  March 2020.

It may also be argued that the Covid-19  Regulations 2020  made by the President was essentially and almost specifically for Lagos, Ogun and Abuja, a percipient  look at S. 8 of the Quarantine Act shows that what is required  for the  purported  power  given the  Governor of a State albeit unconstitutionally to be  extinguished is for  the  President  to make any regulation pursuant to S. 4 of the Quarantine Act notwithstanding that it was made for a specific area or not. The irresistible conclusion is that the purported power of the Governor of Edo State under S.8 of the Quarantine Act  no  longer  existed on  March  30,  2020  and the  Governor  acted in vacuum.  Therefore,  as  has  been   long  established,  you   cannot  put something on nothing and expect it to stand.

CONCLUSION

The courts have not relented  to apply the blue  pencil  rule in appropriate circumstance as seen in DOHERTY v. BALEWA. In AG ABIA STATE & ORS v. AG FEDERATION, the Supreme Court held  that “the blue  pencil  rule is applied to sever a part of a legislation that is good in the sense that it is valid, from the part that is bad”. It went further to hold that “if what remains of the impugned legislation, that is the part that is good, can stand, then it is applied. But, if what remains  cannot stand on its own, the impugned legislation is declared invalid”. It is hereby submitted that the blue  pencil rule will apply to delete  the void  portions  of the Emergency  Regulations 2020 of Edo State for offending item 54 of the exclusive list, sections 4 & 5 of the CFRN 1999  and being caught by S.1 (3) of CFRN 1999  if there are sections  that  can  stand  on   their   own,   else  the   entire   Emergency Regulations 2020 of Edo State is invalid because the Edo State Governor or the  House of Assembly constitutionally lacks  the  power  to  enact any legislation (subsidiary legislation inclusive) on quarantine.

1                Section 4 of the CFRN.

2               Made pursuant to Public Health Law of Western Region 1959 and Section 8 of the Quarantine Act, Cap Q2, Laws of the Federation of Nigeria, 2004. (having regard to the provisions of section 2, 3 and 4 of Quarantine Act).

3                Section 4 (3) of the CFRN 1999.

4                Section 4(4) (a) and (b) of the CFRN 1999.

5                (1982) LPELR-11 (SC).

6                (1961) ANLR 630.

7                (2002) LPELR-611 (SC).