BEING A PAPER PRESENTED AT THE WEBINAR OF AHMADU BELLO UNIVERSITY LAW CLINIC ON 1ST DAY OF APRIL,2020.

INTRODUCTION

The world continues to battle with the corona virus pandemic which uncontestably presents itself to be a threat to humanity.

A lot of lives had ceased to exist as a result of this virus. It took an unprecedented dimension with different approaches from Governments of countries across the globe. One of the unique approaches is a lock down of State(s). Also, many countries have invoked their emergency Laws with a view to combating the spread of the pandemic while others within a very shot spate of time have prepared and passed various Laws in order to address the situation. For example:

UNITED KINGDOM(UK)

UK is made up of four countries namely, England, Scotland, Wales and Northern Ireland. In its effort to tackle the virus, WITHIN A DAY, 25th March, 2020, it passed into Law United Kingdom Coronavirus Act, 2020. The country further has Coronavirus (COVID-19) Action Plan that detailed the actions the government had and intends to take on the virus. This policy paper is available at: https://www.gov.uk/government/publications/coronavirus-action-plan  

Similarly, the United States of America has equally passed a disaster bill to such effect with a stimulus package which is the biggest in the history of the country.

For purposes of our discussion, I have decided to divide this discussion into the below segments:

  1. THE DOCTRINE OF NECESSITY EXPLAINED
  2. THE CONSTITUTIONAL FRAMEWORK IN THE PERIOD OF ANY EMERGENCY IN NIGERIA
  3. THE PROVISION OF THE QUANRANTINE ACT & LEGALITY OF RESTRICTION OF FREEDOM
  4. THE LEGALITY OF CLOSING BOARDERS BY STATE GOVERNMENTS

Few weeks after the discovery of COVID-19 in Nigeria, Government at different levels began, although lately in my view  to take several measures in a bid to contain the spread of the deadly virus. Therefore, one of such is the restraining or restricting the fundamental liberty of citizens. Some argued that even without resort to any Law, the Doctrine of Necessity justifies such measures while others took a different position.

This is the reason why Doctrine of Necessity would conveniently be our starting point. This is because, upon appreciating the applicability of the Doctrine, it gives us a broader but simpler outlook of the legality or otherwise of actions taken by Government without resort to any Law.

THE DOCTRINE OF NECESSITY EXPLAINED

The basis of the Doctrine is to tackle an imminent danger, imperilling the continued existence of the state and prevent it from relapsing into anarchy or destruction.[1] Put in a different way, in an emergency situation threatening the welfare of the people of the state, necessity is the supreme law.

The Supreme Court of Pakistan in SPECIAL REFERENCE BY GOVERNOR GENERAL,1955 P.L.D (1955) F.C 435 held:

“[S]ubject to the condition of absoluteness, extremeness and imminence, an act which would otherwise be illegal becomes legal if it is done bona fide under the stress of necessity…necessity knows no law and…makes lawful [that] which otherwise is not lawful.”

In  Rex v. Stratton and Others (1779) 21 state Trials 1045, Lord Mansfield held that an act which would otherwise have been illegal became legal if done bona fide under the stress of necessity to preserve the Constitution, the state, or society from dissolution..

The Doctrine of Necessity is based on the maxims that say:

  • salus populi suprema lex (the welfare of the people is the supreme law) and
  • salus reipublicae est suprema lex : the safety of the State is the supreme law

The principle has been validly applied in many countries like:

  1. NIGERIA: LAKANMI & ORS V. THE ATTORNEY-GENERAL (WEST) & ORS (1970) LPELR-SC.58/69, EX PARTE: OLAKUNRIN (1985) NWLR (Pt.4)652 , 2011 Proclamation of Goodluck Ebele Jonathan as Acting President
  2. CYPRUS: ATTORNEY-GENERAL V. MYSTIFY IBRAHIM [1964] 3 Supreme Court of Cyprus 1;
  3. INDIA: REX V. STRATTON (1779) 21 State Trials 1045
  4. PAKISTAN: SPECIAL REFERENCE BY GOVERNOR GENERAL,1955 P.L.D (1955) F.C 435

NOTE: This Doctrine of Necessity most prominently features before the Courts in revolution cases where there is a coup detat or other change of government by extra constitutional means, in order to validate or invalidate an abrupt political change.

Nevertheless, there are stipulated conditions that must be satisfied before any person or Government that seeks to rely on the Doctrine must satisfy, namely:

  1. There is a danger or emergency that threatens the society in which the Constitution or any other Law has not made provision for
  2. There is an urgent need to take action and nothing else can be done
  3. The action that must be taken must tally with the necessity of the case
  4. The action must not impede the right of the citizens under the Constitution[2]
  5. The action must not be with a aim of strengthening the powers of an illegal government against a lawful government

Significantly, where the Constitution or any other Law has perfectly provided for the means of tackling an emergency, the Doctrine cannot be invoked.

The Privy Council discarded the application of the Doctrine because of an existing Law in the then Southern Rhodesia (now Zimbabwe) in the case of MADZIMBAMUTO V. LARDNER-BURKE (1969) 1 AC (P.C.) and held:

The doctrine therefore is used to protect the Constitution of the Sovereign state, not to assist those who seek to destroy it. Here, the respondents would be excluded from its benefit. Here the Constitution itself provides for the proclamation of states of emergency in times of war or other periods of emergency, as defined in section 72 (2). So it is questionable whether the doctrine of necessity can be invoked when the Constitution itself makes provision for periods of emergency

Having pointed out the conditions for the applicability of the Doctrine of Necessity, can it be invoked to address the COVID-19 situation in Nigeria ?

THE CONSTITUTIONAL FRAMEWORK IN THE PERIOD OF ANY EMERGENCY IN NIGERIA

The 1999 Constitution has provided for  two regimes and framework through which an emergency may be tackled . These are:

  • PROCLAMATION OF STATE OF EMERGENCY AND
  • DEROGATION OF FUNDAMENTAL RIGHTS AS PROVIDED FOR UNDER SECTION 45 .

The above stipulations have left many Lawyers & Senior Advocates of Nigeria on vexed controversies. Therefore, I will provide my modest opinions on them.

PROCLAMATION OF STATE OF EMERGENCY

Section 305 of the 1999 Constitution provides for state of emergency. The portion relevant to us provides:

  1. 1. Subject to the provisions of this Constitution, 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-
  4. 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;
  5. The Governor of a State may, with the sanction of a resolution supported by two-thirds majority of the House of Assembly, request the President to issue a Proclamation of a state of emergency in the State when there is in existence within the State any of the situations specified in subsection (3) (c), (d) and (e) of this section and such situation does not extend beyond the boundaries of the State.
  6. The President shall not issue a Proclamation of a state of emergency in any case to which the provisions of subsection (4) of this section apply unless the Governor of the State fails within a reasonable time to make a request to the President to issue such Proclamation.

The President today has not declared a state of emergency in accordance with the provisions of this Section 305 nor has any State Governor in Nigeria so requests the President to so do. Although, he has taken steps under another Law that we are going to be looking at later.

However, the essential point to note from the wording of Section 305(1) is that:

the President MAY by instrument …issue a Proclamation of a state of emergency (Emphasis mine)

What then is the meaning of MAY as used in the section ?

The Supreme Court in the case of EDEWOR V. UWEGBA & ORS(1987) LPELR-1009(SC) held:

“Generally the word ‘may’ always means ‘may’. It has long been settled that may is a permissive or enabling expression…[T]he use of the word ‘may’ prima facie conveys that the authority which has power to do such an act has an option either to do it or not to do it.”

MOKELU V. FEDERAL COMMISSIONER FOR WORKS AND HOUSING(1976) LPELR-1904(SC) , UNIVERSITY OF ILORIN & ANOR V. OLUWADARE(2002) LPELR-7179(CA) , MASSEY V. COUNCIL OF MUNICIPALITY OF YAO (1922) 22 SRSW 494 AT 497, ATAYI FARMS LTD V. NIGERIA AGRICULTURAL CO-OPERATIVE BANK LTD & ANOR(2002) LPELR-7076(CA) .

From the above decisions, I am of the honest opinion that the President is under no obligation to declare a state of emergency except if he wishes to do so under his presidential powers. The Supreme Court of US in the case of DUNCAN V. KAHANAMOKU, 327 U.S. 304, 335 (1946) held that the determination that an emergency exists is a decision exclusively resting with the President .

Flowing from the foregoing, once the President decides to act under Section 305 of the Constitution, then he must religiously comply with all the procedures therein. Hence, if he does not wish to exercise his presidential power thereunder, all arguments thereon to my mind are largely premature and unnecessary.

DEROGATION OF FUNDAMENTAL RIGHTS AS PROVIDED FOR UNDER SECTION 45

  1. 1. Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society  
  2. in the interest of defence, public safety, public order, public morality or public health;

As far back as 1905, the US Court in JACOBSON V. MASSACHUSETTS, 197 U.S. 11, 25 (1905) held that constitutional liberties do not import the absolute right to be free from restraint. This is the founding rule of the present Section 45 of the Constitution.

What the President and other States Government have done is to restrict the fundamental rights to movement of the citizens to curb the menace of COVID-19 pandemic. But then, what the Constitution says as we have seen above is that in the interest of public safety and health et al, a LAW shall not be invalidated and not that mere EXECUTIVE ORDER, FIAT, DIRECTIVE OR PRESS RELEASE that fails to qualify as a Law cannot be invalidated .

In the famous case of FAITH OKAFOR v. LAGOS STATE GOVERNMENT & ANOR(2016) LPELR-41066(CA) , it was a last Saturday of the month on 25th May, 2013 and the Lagos State Government issued a Directive which is based on a restriction in movement between the hours of seven and ten in the forenoon in order to observe a monthly sanitation exercise. On the said day, the Appellant was arrested for violating the restriction in movement directive. The Court held that a mere directive cannot be equated to the state of Law to the extend of curtailing the fundamental rights of the citizens.

Coming back to our analysis, “Law” by section 318(1) of the Constitution would include an Act of the National Assembly and Law of the House of Assembly. Furthermore, Section 318(4) of the same Constitution provides:

The Interpretation Act shall apply for the purpose of interpreting the provision of this Constitution.

On the applicability of the Interpretation Act, see: JIBRILU V. JIBRIL (2012) ALL FWLR PT .638) 805-1005 @ 923 CA pg.939. INAKOJU vs. ADELEKE (2007) 4 NWLR   (PT.1025) 427

By extension of the meaning of “Law” therefore, Section (18)(1) of the Interpretation Act  provides that:

“Law” means any law enacted or having effect as if enacted by the legislature of a State and includes any instrument having the force of law which is made under a Law;

To our view, this equally extends to an Act of the National Assembly.

From the foregoing analysis, it therefore means that there must be an existing Law or an instrument validly made thereunder that is reasonably justifiable permitting the Government , whether Federal or State to restrict the fundamental liberties of her citizens.

Mere press release, executive order or directive is not constitutionally allowed or tenable to curtail the personal liberties of the citizens under the Constitution.

This therefore brings us to the debatable:

PROVISION OF THE QUANRANTINE ACT & LEGALITY OF RESTRICTION OF FREEDOM

The federal law in Nigeria that permits the system of quarantine is the QUARANTINE ACT CAP. 384 L.F.N. 1990 ACT CAP. Q2 L.F.N. 2004 . This Quarantine Act (the Act) is a piece of old legislation which by the dint of Section 315 of the Constitution is validly deemed to be an existing law.  However, does it really give the President and other Governors the power within the meaning of reasonably justified law in Section 45 of the Constitution to permit the imposition of lockdown in Nigeria?

The relevant provisions to us are Sections 2, 3, 4 & 8 of the Act, which provide:

  1. Interpretation

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;[1929 No. 7.]

“ local area ” means a well-defined area, such as a local government area, a department, a canton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such areas.

  1. Power to declare any place an infected local area

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. [1929 No. 7.]

  1. Regulations

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

  1. State quarantine and powers

If and to the extent that any declaration under sections 2 & 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 make such regulations, may be exercised in respect of the state, by the Governor thereof as fully as such powers  may be exercised by the President, and subject to the same conditions and limitations

From a community reading of  all these provisions, it is limpid that the President or Governor has a power to make or issue regulations with a view to 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;

Regulations validly made is a condition precedent for the authority of any Government to restrict the liberties of the citizens under the Act.

Have Regulations been made ? To the best of my knowledge , the followings have been made:

  1. The President, on 30th March, 2020 after a televised broadcast signed the COVID-19 REGULATIONS, 2020 pursuant to the Quarantine Act.
  2. The Governor of Lagos, on 27th March, 2020 signed the LAGOS STATE INFECTIOUS DISEASES (EMERGENCY PREVENTION) REGULATIONS, 2020
  3. The Governor of Rivers State, on 19th March, 2020 made her own regulation declaring COVID-19 to be an infectious disease.

It is respectfully submitted that if there is no Law enacted by the House of Assembly of a State justifying the (I.e imposition of curfew etc) measures taken whether under their State Public Health Law or the Governor making  Regulations as some have done, pursuant to the Act, it is unlawful and unconstitutional for such Governor to restrict the liberty of her citizens by an ordinary press release.

If a Law or Regulations made by the State, it qualifies as lawful as stated in the case of COMPAGNIE FRANCAISE DE NAVIGATION A VAPEUR V. LOUISIANA STATE BD. OF HEALTH, 186 U.S. 380 (1902). the US Court held that :

Until congress has exercised it powers… states have the power to enact and enforce quarantine laws for the safety and the protection of the health of their inhabitants. subject, such state quarantine laws and state laws [is] for the purpose of preventing, eradicating or controlling the spread of contagious or infectious diseases, are not repugnant to the Constitution

Also, in GIBBONS V. OGDEN, 22 U.S. 1, 79 (1824), the Supreme Court of US  recognized the police powers of the state to compel isolation and quarantine to provide for the health safetyS of the citizens. This is of course, where there is the necessary legal framework.

Interestingly, a learned SAN, Mr. Ebun-Olu Adegboruwa in response to the Attorney General of the Federation argued that:

“3. 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.”

See https://thenigerialawyer.com/adegboruwa-san-replies-agf-says-covid-19-regulations-made-by-president-buhari-is-illegal-because-quarantine-act-applies-to-only-those-infected/ 

In other words, the SAN contends that the Quarantine Act is only applicable to the infected COVID-19 patients and therefore, it is incapable of curtailing the freedom of the other citizens. He anchored his argument on the historical antecedents of quarantine itself.

With every sense of modesty to the learned silk, as attractive and plausible  as his argument appears, the tenor of the Act upon a careful perusal does not aid his points. Firstly, the Act does not expressly provide that it only applies to infected persons. It merely defines “infected local areas” and power to so declare.

It is convenient for us to look at the Preamble to the Act to ascertain the validity of the argument of the learned silk. Although, in the case of BABALOLA v .AG, FEDERATION & ANOR (2018) LPELR 43808 (CA), the Court held :

” A preamble to an enactment ,though not part of the body of the enactment ,can be resorted to as an aid in interpreting the enactment ,especially where there is some difficulty in arriving at the meaning of word used in the enactment ..It is all the more so in light of the fact that a preamble to an enactment is its preface or introduction. Its purpose is to portray or show case the interest of the framer( s) of the enactment and the mischief the enactment is set out to remedy . ”

See also: CODE OF CONDUCT BUREAU & ORS v . NWANKWO ( 2018) LPELR 44762 ( CA) , YABUGBEV.C.O.P(1992) LPELR–3505 (SC) AT 28 (F–G)(1992) 4 NWLR(PT.234)152 AT 171(AC). INAKOJU & ORS.V. ADELEKE & ORS.(2007) LPELR–1510 (SC) .OGBONNA V. A.G .OF IMO STATE & ORS.(1992) LPELR–2287( SC) (1992) 1 NWLR ( PT.220) 647 AT 672( C) ; FRN V. IBORI & ORS.(2014) LPELR 23214 (CA) 67( A– D) ,DILLY v .I .G.P & ORS: ( 2016)LPELR 41452( CA)

The Preamble to the Act provides:

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 obvious that the objectives of the Act above are geared at regulating how to impose quarantine, and importantly to PREVENT & CONTAIN THE SPREAD of infectious diseases in Nigeria. If we should adopt the restrictive opinion of the Learned silk, then what becomes of the citizens that have been infected but are yet to be ascertained to be COVID-19 patients ? Will it not be prudent to lean on a broader provision ?

In all sincerity of purpose, it is better to err on the side of caution than that of mistake: EX ABUNDANTIA CAUTELA. Therefore, to make sense of the Act,  I will adopt and lean on the broader interpretation to make the Act applicable over all persons. RABIU v. THE STATE (1980) 8-11 S.C. (REPRINT) 85

THE LEGALITY OF STATES GOVERMENT CLOSING /SHUTTING HER STATE BOARDERS/ BOUNDARIES

It is significant to note that the word “boundary” was used 10 times throughout the whole Constitution but there is nowhere stated, that the boundary adjoining two or more States may be closed for policy reasons as we are witnessing in Nigeria today.

The Supreme Court of Nigeria recognized the existence of unforeseen constitutional gaps in some situations,  by saying there are circumstances in which the Constitution itself would not anticipate some occurrence, hence, the need to devise a novel action plan.  This is in the celebrated case of LAKANMI & ORS V. THE ATTORNEY-GENERAL (WEST) & ORS (1970) LPELR-SC.58/69 where it held that:

“We think it wrong to expect that the constitution must make provisions for all emergencies. No constitution can anticipate all the different forms of phenomena which may beset a nation.” Per Adetokunbo Ademola (CJN) as he then was.

However, many States in Nigeria have imposed interstate travel ban. Is this action valid in Law ?

It is to be noted that the Governor who have validly made a regulation to restrict movement can only do so withing his State alone. See Section 8 of the Act. It is respectfully submitted that if a State Government provides for a regulation pursuant to the Act restricting movement into her State by closing her boarders, although not provided for by the Constitution, it is lawful. This is also to make sense of the Act by preventing the spread of COVID-19.

However, if a State refuses to take a step to make a regulation pursuant to the Act and there is no extra ordinary emergency preventing such a State to make such, it is illegal and unconstitutional for such a State to shut her boundary. It cannot further rely on the Doctrine of Necessity because there is no imminent danger.

[1] Ogboi Anthony Enahoro, Revolutions & The Judge as a Beast of Burden: A reply to Kelsen, Golden Gendel Ltd(2012)

[2] See Madzimbamuto v. Lardner-Burke (1969) 1 AC (P.C.) where the application was refused thus: “The doctrine of necessity cannot be applicable here because: (i) the proclamation which is relied on as justifying the detention without trial of the appellant’s husband impairs his constitutional right to liberty; (ii) it constitutes an assumption of powers which are clearly in derogation of lawful Sovereignty; and (iii) the proclamation of a state of emergency, otherwise than in accordance with the terms laid down in sections 69 to 72 of the Constitution is a contravention of the Constitution and is therefore disqualified for that reason also.”