INTRODUCTION

The novel coronavirus outbreak, predictably, caught the Nigerian government unprepared and dealt a devastating blow on the socio-political and economic lives of our ailing country.

It cannot be over-emphasized that in the quest to overcome the deadly virus there is a fundamental need for harmony between the central government and its federating units. However, the cacophonous dispositions of most state governors undoubtedly constitute a cog in the wheel of a coordinated war against the virus. Efforts are made here to ransack ours relevant laws in a bid to unravel the degree of powers legally deposited in each arm of our seemingly bifurcated federation.

BACKGROUND FACT:

The coronavirus disease (COVID-19) is a pathogenic disease which transmits from human to human with high rapidity and fatality. It is caused by Severe Acute Respiratory Syndrome Coronavirus 2 (SARS-CoV-2) which is said to originate from Wuhan China in December, 2019 and has since spread around the world like wild fire. The world has so far recorded over six million cases of COVID-19. Sadly, the virus has eliminated over Three Hundred Thousand precious lives.

Nigeria confirmed its first case in Lagos on 27th February, 2020. Since the beginning of the outbreak, the Lagos State governor, Mr. Babajide Sanwo Olu responded swiftly by shutting down the State. He further suspended ingress and egress from the State (except for persons conveying essential goods and services) until the Federal Government intervened to lockdown the trio of FCT, Lagos and Ogun States.

Since the Federal Government came to the fore and exercised central control on the coronavirus lockdown in Nigeria and the concomitant modalities for operating commercial activities as well as the subsequent gradual easing of the lockdown, there have been conflicting rules and guidelines so far churned out by the Federal and State governments. Sometimes, they come with minor and negligible discrepancies. In other occasions, the State governments frontally contradicted the directives and guidelines issued by the Federal government on how to tackle the infectious disease, the lockdown and its easing.

On 27th April, 2020 the President addressed Nigerians and reviewed the lockdown orders of FCT, Lagos and Ogun States. He also mandated the lockdown of Kano State for two weeks following the unexplained and alarming death rate in the State. At the expiration of the initial two weeks lockdown in Kano State, the Presidential Task Force (PTF) – acting on the directives of the President, extended the lockdown in Kano and banned all religious gatherings in the State.

So far, it appears that most State governors are bent on flexing muscles with the Federal Government and its agency – National Centre for Disease Control (NCDC) on the extent of powers exercisable over the activities within each state of the federation during the period of the pandemic. Most striking in this regard are two major states to wit: Ogun and Kano States.

First, in subtle defiance to the directives and guidelines of the Federal government for certain business activities to resume in Ogun State within specified times, the State Governor, Dapo Abiodun instead extended the lockdown for one week. Upon the termination of the extended week, the governor only allowed business activities to resume three times in a week in the state, namely: Monday, Wednesday and Friday. This is in conflict with the directives of the President and the guidelines emanating therefrom.

Obviously spurred by religious sentiment, the Kano State governor, Mallam Abdullahi Ganduje blatantly defiled the directives of the Federal Government which extended the total lockdown of that state and banned religious gatherings. The Governor instead announced a relaxation of the lockdown. He proceeded to permit reopening of Mosques and other religious venues within the state which has the tendency of increasing transmission of the virus exponentially.

In addendum, there have been skirmishes of dissonance by other state governments. For instance, the Kogi and Cross River State governor have been reluctant to cooperate with NCDC – which is an agency of the Federal Government established by law. The Rivers State government has at some point differed with the Federal government on a subject matter[1] apparently within the purview of the Federal government.

On 1st June, 2020, the Federal government announced a further relaxation of the lockdown and mandated the restricted reopening of religious centres such as Churches and Mosques subject to guidelines of the State governments in the three affected states. In deviation from the said directives, the Lagos State government maintained that the ban on religious activities in Lagos State still stands until further notice. We shall hereunder attempt to dispassionately unearth and discuss the propriety or otherwise of these actions by State governments within the context of relevant laws.

THE DELINEATED ROLES OF THE FEDERAL AND STATE GOVERNMENTS

The 1999 Constitution (as amended) remains the supreme law of our land. It is a skeletal structure that embodies and spells out the modalities for our existence as a sovereign state. Other legislations derive their validity from the constitution. Section 1 of the Constitution lends credence to the aforesaid assertion.

Section 3 of the Constitution establishes the 36 states of the federation including the Federal Capital Territory, Abuja. The Local Government were equally established but were unfortunately subjected to the care and nursing of the State governments as stipulated in Section 7(1) of the Constitution.

The constitutional stratification of powers between the federal and state chief executives (see Section 5 of the Constitution) implies that their powers derives either from the body of the constitution itself or under matters in which each parliament (whether National Assembly or State Houses of Assembly) has the competence to make law. In other words if the Constitution allows the states to make law on a subject matter, then the governor has the corresponding power to superintend, maintain and ensure the effectuation of the said law to the extent provided by laws made by the relevant State House of Assembly. This may include policies and guidelines that derive their validity from the legislation. Based on the foregoing position of the law, it is apparent that to understand the powers exercisable by the President and State governors, recourse ought to be made to the Legislative Lists as captured in the Constitution.

A contemporaneous reading of Section 4 (1) (2) and (3) of the Constitution shows that the National Assembly has the exclusive power to make laws in respect of matters contained in the Exclusive Legislative List. In the same token, by the combined provision of Section 4(4),(6) &(7) thereof, the State Houses of Assembly and the National Assembly both have the powers to make laws in respect of matters contained on the Concurrent List to the extent specified in the first column of part II of the Second Schedule . The State Houses of Assembly also have powers to make laws in respect of matters not included in part I of the Second Schedule to the Constitution, otherwise referred to as residual matters. The powers of the National and State houses of Assembly are clearly restricted to the extent provided in the Constitution without more. Unlike the Courts, they do not harbour inherent powers as was held in A. G. Abia State v. A.G. Federation (2002) 6 NWLR (Pt. 763) 264 S.C..

For purposes of confining this discourse within the ambit of the dilemma sought to be addressed, we shall restrict our voyage and forage on relevant Items for which each tier of government has power to make laws and the consequential executive policies emanating therefrom to enforce the law. For instance, “quarantine” is a subject in the Exclusive Legislative List and as such within the legislative competence of the National Assembly, and can only be acted upon by the states to the extent permitted by a federal enactment and effectuating executive policy emanating there from. Item 17 under the Concurrent List in Part II of the Second Schedule stipulates that the National Assembly may make laws for the federation or any part thereof in subjects such as “health”, “commerce”, inter-State transportations” e.t.c. The provision is followed by Item 19 which states thus: “Nothing in the foregoing paragraphs of this item shall be construed as precluding a House of Assembly from making Laws with respect to any of the matters referred to in the foregoing paragraphs”.

The implication of the above is that whereas the subject “quarantine” is strictly within the exclusive preserve of the Federal Government and the States can only act on it to the extent permitted by an Act of the National Assembly, both States and National Assembly can legislate on “health”, “inter-State transportation” and “commerce”. However, it must be emphasized that in circumstances bothering on the trio, where the federal government has made law and given guidelines sufficiently covering an issue under each heading, the States are under obligation to comply with the federal enactment or guideline as the case may be. The State governments are not allowed to cherry-pick or invoke their discretion, discarding some and accepting those they seem comfortable with.

Section 4(5) of the Constitution provides thus: “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other Law shall, to the extent of the inconsistency, be void”. The executive powers of the President and the State governors are confined to maintaining the Constitution and all laws enacted by the National Assembly and State Houses of Assembly as the case may be. I dare say that anything done by the President or the State Governor that is outside the precinct of laws enacted by the either lawmaking bodies or in the Constitution is ultra vires, null and void, and of no effect whatsoever.

In the case of Attorney General of Ogun State v Attorney General of Federation (1982) LPELR – 11 (SC), the Supreme Court, per Fatayi – Williams, JSC (as he then was) held that:
“It is of course, settled law, based on the doctrine of covering the field with which I shall deal in more detail later, that if Parliament and a Regional Legislature are empowered to make laws, and a Regional legislature enacts an identical law on the same subject matter, the law made by Parliament shall prevail. That made by the Regional legislature shall become irrelevant and therefore impliedly repealed”. This presupposes that where there is a law for which both the National Assembly and a State House of Assembly are competent to make law and the National Assembly has sufficiently made laws in that regard, the law already made or subsequently made by the State would be in abeyance as far as the federal law subsists. This was also the decision of the apex court in Saraki v Federal Republic of Nigeria (2016) LPELR – 40013 SC.

In furtherance of the foregoing position, I strongly submit that a State governor is only competent to make guidelines, regulations, policies or rules in respect of matters in which the State House of Assembly can make laws and other powers conferred on him by the Constitution. The governor is not permitted to embark on a frolic of his own and exercise discretion at will. Suffice it to say that any executive order from the State governor must not only draw its validity from the said laws it must also be for “the peace, order and good governance of the State”. In A. G Lagos State v. Eko Hotels Ltd. & Anor. (2017) LPELR -43713 (SC.) the Supreme Court held that the Governor of Lagos State is only competent to set up a Tribunal of Inquiry in respect of matters which the House of Assembly of Lagos State can legislate under section 4(7) of the Constitution. It must also be stressed that the mere orders/guidelines of the governor does not attract criminal liability as was held in Faith Okafar V. Governor of Lagos State & Anor. (2016) LPELR-41066 CA, it is within the exclusive competence of the House of Assembly of a State to enact criminal laws of the State. To do otherwise is to usurp the powers of the state assembly and it would be tantamount to nullity.

ONUS OF POWER OVER CONTROL OF INFECTIOUS DISEASE OUTBREAK IN NIGERIA

The Quarantine Act is a federal enactment that contains 8 sections. Flowing from our discussions above, it can be discerned that “quarantine” falls in item 54 of the Exclusive Legislative List and as such within the uninvadable legislative competence of the National Assembly except to such extent as delegated by law. The Supreme Court has admonished for the umpteen times in A.G. Abia State & Ors. V. A.G. Federation (supra) that “it would be preposterous for the House of Assembly of a State to contend that because it has power to make laws for the peace, order and good government of a state, it could enact a law for the State on a matter on the Exclusive Legislative List”. The same fate applies to the State governors when making their guidelines and executive order mutatis mutandis.

Section 3 of the Quarantine Act permits the President to issue a notice declaring an area within or without Nigeria “an infected local area”. Although Coronavirus was not specifically captured as “dangerous Infectious Disease” in Section 2 of the Act, the said section contains an omnibus clause which allows the President to declare any other infectious disease not expressly listed as Dangerous Infectious Disease. Section 4 of the Act is a very important section because it vests in the President the power to make Regulations that would guide certain activities within the area so declared by him. Consequent upon the foregoing, the President may decide to solely exercise the powers in section 4 or delegate it as he deems fit. The State governors can only encroach on section 4 where the President omits or falls to cover some regulations bothering on specified subject matter.

To be clearer, section 8 of the Act provide that “If and to the extent that any declaration under section 2 or 3 or 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”. (Emphasis is mine). The implication of this section is that where the federal government has by regulation sufficiently covered a subject matter during the continuance of the President’s declaration, then the State governor lacks the power to alter the President’s Regulation as the governor deems fit. The governor can only make Regulations in an area where the President is silent or has not covered. It must also be stressed that the penalty for complying with the Regulations so made is clearly stated in Section 5 of the Act. It is not in the place of the President or the State governor to expand or limit the maximum punishment for the offence. That is strictly within the province of the National Assembly.

HITTING THE GAVEL

Having tersely examined the provisions of our law on the respective roles of the President and the Governors, it is now crystal clear that some State governors have invaded the powers of the President and the National Assembly thereby arrogating to themselves huge powers during the period of the ravaging coronavirus pandemic. Consequently, we shall herein make pronouncements on some of these actions, which may be well intended, but are nonetheless usurpatory and should be frowned at. The perpetrators are enjoined to desist forthwith from further infringement.

The decisions of the Ogun and Kano State governors to alter the directive of the President by failing to abide by the lockdown and the clearly stated procedures for relaxing lockdown in the States can be considered an encroachment on the Presidential powers and as such unconstitutional. The governors have access to the President and could have advised him to make Regulations that suit the peculiar needs of their respective States. It is not in their place to reverse it so as to conflict, even though they can add as directed.

The mere fact that Governor Ganduje allegedly had a prior consultation with relevant stakeholders in the religious circle for purpose of Sallah celebration is immaterial to his frontal deviation from the express directives of the President.

The Regulations of the Rivers State Governor arrogating to himself the powers to demolish buildings is, to say the least, invidious and a usurpation of both judicial and parliamentary powers.

The incidences where the Kogi and Cross Rivers State Governors engaged in tussles for control of testing inhabitants of the states is unfortunate and must stop. The Federal Government should mount the saddle and assume proper control of its constitutional and statutory roles in matters pertaining to the coronavirus pandemic.

The Lagos State Governor lacks the powers to completely maintain the ban on religious gathering whereas in fact the President on 1st June, 2020 directed that Churches, Mosques and hotels may reopen under certain conditions. The Lagos State Governor can impose further stringent condition for religious gathering as delegated by the President but he acted outside his actual and ostensible powers when he decided to maintain total ban on religious activities in Lagos.

The State Governors lack the powers to unilaterally shut down inter-state borders and define modalities for entrance and exit from the states under the guise of battling the pandemic. It is within the preserve of the President to so do. It is only when the President has not done that that the Governor may by Regulation do so.

For purposes of the Regulations in Section 4 of the Quarantine Act, where a governor makes Regulations on a subject matter and the President later exercises his original powers and makes Regulations on the same subject matter, the earlier Regulations made by the Governor becomes suspended as long as the President’s Regulations subsists.
SUMMARY AND CONCLUSION

In the battle to conquer coronavirus invasion into our territory, there is a paramount need for the federal and state governments to work in harmony to tackle the pandemic. However, the mere fact that there is a pandemic does not guarantee the suspension of our Constitution and extant laws. In fact, it is a time for all tiers of government to assume their roles fully and abhor unnecessary interference and discordance in their respective Regulations.

The lockdown relaxation is not only informed by scientific data and advisories but it is also based on the huge economic impact on Nigeria and Nigerians. The federal government is more equipped to carry out a holistic assessment of the situation and issue necessary Regulations. It is our sincere hope that states and the central governments would work in harmony while respecting their defined roles. By so doing, we would emerge victorious in no distant time.

JONAH, VICTOR ANAYOCHUKWU

LEGAL PRACTITIONER FROM LAGOS

TEL: +234 7030878896

EMAIL: [email protected]