INTRODUCTION

Last week, we looked at the legality of President Muhammadu Buhari (Buhari)’s shutting down of the FCT, Lagos and Ogun states. Today, we conclude on this topic.

THE EXECTUTIVE POWERS OF THE PRESIDENT

When President Buhari issued the COVID-19 Regulations, 2020, pursuant to the Quarantine Act, he was careful to make provisions for restricting movements in only some parts of Nigeria (FCT, Lagos and Ogun States). He banned travels and notified the affected state governors and the FCT Minister. Hesecured their co-operation. He suspended all airports and aircraft (except with special permits) and closed down courts (except for urgent essential issues) in those locations. The Regulations exempted hospitals, banks (to operate skeletal services), Lagos seaports, and commercial establishment dealing with food, petroleum, power and private security firms.
Antagonists have argued that only State governors, not the President, can close down their states. I am not unaware that the President had been too laid back even after the COVID-19 pandemic was already globally acknowledged. So, why did he have to wait that long before suddenly waking up and ordering lockdowns? I share these sentiments. But, two caveats here: we must first drive away the fox before blaming the fowl for wandering too far into the bush. Secondly, two wrongs do not make a right.

Some argued that the President should have first declared a state of emergency in accordance with section 305(1) of the 1999 Constitution. The snag in this argument is that Buhari NEVER said he was declaring a state of emergency in those two states and FCT. It is only if he had said so that he would be required to comply with the tortious provisions of section 305(2), (3) (4) and (5), which outlines the procedure for declaring a state of emergency. We should therefore rest this argument regarding the President’s power to declare a state of emergency.

NASS ON COMPULSORY RECESS

In any event, it is common knowledge that the NASS had abruptly adjourned proceedings for the same reasons of COVID-19, in exercise of its powers under sections 4, 47, 48, 49, 50, 51, 53, 54, 55, 56, 58, 60, 62, 63 and 64 of the same Constitution. The president lacks constitutional powers to order or summon the NASS (a different arm of Government), to immediately convene when it is on recess, like a Headmaster to school pupils, without declaring any state of emergency. Surely, that would have violently offended the hallowed doctrine of separation of powers and checks and balances most ably propagated by great philosophers of yore: Plato; Aristotle (385 B.C.-323 B.C.); Polybius; JohnCalvin (1509-1564); JohnLocke (1632-1704); JohnLambert (1619-1684); ImmanuelKant (1724-1804); Jean–JacquesRousseau (1712-1778); Voltaire (1694-1778); ThomasHobbes (1558-1679); DenisDiderot (1713-1784); DavidHume (1711-1776); ReneDescartes (1596-1650); IsaacBeckam (1895-1958); and even IsaacNewton (1643-1727), most famous for his scientific theory of gravity. The foremost proponent of this doctrine (since enshrined in sections 4, 5 and 6 of the 1999 Constitution), is the great French Judge and political philosopher, whose nearly a sentence-long name is Charles-Louis de Secondat Baron de La Brede et de Montesquieu. He is simply called Baron de Montesquieu (1689-1755). He wrote in “The Spirit of the laws” (1748), about the need to distribute power among a Legislature, Executive and Judiciary.

The executive powers of the President as encapsulated in section 5 of the 1999 Constitution, are to“be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation. They “extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.”

The breadth of the President’s powers has been emphasized in A.G. FEDERATION V ABUBAKAR (2007) 10 NWLR (Pt. 1041) 1, as thus:

“The Nigerian Constitution envisages a single executive for which the president is the head and has vested in him the executive powers. And the principle of a single executive implies the preclusion of a concurrent vesting of the executive powers in two or more persons of equal authority. The principle also has the effect that the legislative organ cannot take away from the President or confer on others, functions of a strictly executive nature.”

See also:AG, ABIA STATE & ORS V AG, FEDERATION(2003) LPELR-610 (SC); OZOINYI & ORS v. OGUAMA(2017) LPELR-CA/E/275/2016.

THE QUARANTINE ACT AND OKAFOR’S CASE

I have read the case of FAITH OKAFOR V. LAGOS STATE GOVERNMENT & ANOR (2016) LPELR-41066 (CA). The facts there do not in any way contradict Buhari’s action. In that case, the Court of Appeal declared null and void and of no effect whatsoever, the order (by fiat) of the Lagos State Government, which breached section 41(1) of the 1999 Constitution (right to freedom of movement). It held that the order violated the fundamental right of the Appellant to freedom of movement during the then monthly environmental sanitation era declared by the Lagos State government. The Appellant had been arrested and had her movement restrained by agents of the Lagos State government during the exercise. The intermediate court held that a mere order or directive of the government cannot enjoy the status of law.

The Buhari directives differ from this scenario because they were enshrined in COVID-19 Regulations, 2020, made pursuant to the extant Quarantine Act of 1926 (now LFN Cap Q2, 2004). The Act may be old, but its existence has not been doubted by anyone. As severally held by our appellate courts, a decision of a court is only authority for what it decides based on its peculiar facts and circumstances. No case is identical with another; though similar. Each case must therefore be considered according to its own peculiar circumstances [UDO V. STATE (2016) LPELR-4072 (SC); PDP V. INEC & ORS (2018) LPELR-44373 (SC); SYLVA V. INEC & ORS (2015) LPELR-24447 (SC); DIRECTOR, SSS V. IBRAHIM (2016) LPELR-41618 (CA); IZEZE V. INEC & ORS (2018) LPELR-4428 (SC)].

THE QUARANTINE ACT AND BUHARI’S ORDERS

Some antagonists have argued that Buhari ought to have first made some modifications to this Quarantine Act under section 315 of the Constitution “to bring it into conformity with the provisions of this Constitution”. The President did not need such modification. Specifically, section 2 clearly states that “dangerous infectious disease” means “Cholera, Plague, Yellow Fever, Small pox and Typhoid and includes any disease of an infectious or contagious nature, which the President may, by notice, declare to be a dangerous infectious disease”. WHO has already declared COVID-19 to be a highly infectious disease, and has indeed termed it a pandemic.

By section 3, “the President may, by notice, declare any place whether within or without Nigeria to be an infected local area”. Section 4gives the President powers to “make regulations”.He duly made the COVID-19 Regulations, 2020. The powers include restricting “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” and “preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place in Nigeria” [section 4(b)].

The court has held, on the interpretation of section 45 of the Constitution, in MBANEFO V. MOLOKWU (2014) 6 NWLR (Pt 1403) 45 of 377, that the section cannot be restricted to Statutes alone, but includes “the rules and regulations guiding communities, which assist them in the maintenance of peace and tranquillity”. Buhari’s regulations qualify for this.

DOESTHE QUARANTINE ACT BREACH SECTION 45 OF THE CONSTITUTION?

The Antagonists have strenuously argued that the shut-down order breached section 45 of the 1999 Constitution. I think not. Section 41provides:

“Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom”.

It is correct, as held by the Supreme Court in INEC V. MUSA (2003) 3 NWLR (Pt 806) 72 152, that all powers, legislative, executive and judicial, must ultimately be traced to the Constitution. The provisions of section 41 of the Constitution are not absolute. They are derogable in the sense that they are inherently dressed with limitations in their ordinary application in section 45(1), which provides:

“Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society

In the interest of defence, public safety, public order, public morality or public health; or
For the purpose of protecting the rights and freedom or other persons.”
It is crystal clear, as seen above, that “public health”, “public safety” and “protecting the rights and freedom or other persons” constitute grounds for the restriction of the right to freedom of movement.

See FABUNMI V. IGP, ABUJA & ANOR (2011) LPELR-3550 (CA); AG & COMMISSIONER FOR JUSTICE, KEBI STATE V. JOKOLO & ORS (2013) LPELR-22349 (CA); IGP V. ANPP (2007) LPELR-8932 (CA); USMAN V. EFCC (2017) LPELR 43196 (CA).

Consequently, the COVI-19 Regulations, 2020, were enacted by the President pursuant to the Quarantine Act, which in turn derive their legitimacy from section 45(1) of the 1999 Constitution. Only four fundamental rights are excluded from derogation. They are rights to personal liberty; freedom from discrimination; acquire and own immovable property anywhere in Nigeria; and, not to be held guilty of a non-existing offence, or to be imposed upon, a heavier penalty than as provided by law [section 36(8)].

Note also, matters concerning quarantine are provided for under the Exclusive Legislative list (Item 54, Second Schedule, Part 1 to the 1999 Constitution).

DOCTRINE OF COVERING THE FIELD

Indeed, under the doctrine of ‘covering the field’, it is actually the regulations of Lagos State, Lagos State Infectious Diseases (Emergency Prevention) Regulations, 2020, that ought to be subjected to the acid test of whether or not they conflict with the Quarantine Act or the Federal Governments COVID-19 Regulations, 2020 (though, I think not). This doctrine, as held by the apex court in A-G LAGOS STATE V. A-G FEDERATION (2013) 16 NWLR (Pt 1380) 383, 327-328:

“postulates that where a Federal Constitution or a federal enactment has already covered a particular legislative field, no state or local Government law can be enacted to cover the same field already covered by the Constitution or the federal enactment. The Doctrine thus postulates the mutual non-interference among the federating states on the one hand, especially by legislative action in the affairs of the other, with a view to achieving a very strong and effective working of the Federation.”

See also SARAKI V. FRN (2016) LPELR-40013 (SC); INEC V MUSA (2003) LPELR-1514 (SC); OSIEC V. ACTION CONGRESS (2011) All FWLR (Pt 567) 622; OLALEYE-OTE & ANOR V. BABALOLA (2012) LPELR-9275). See also the NCDC Act, 2018 and the National Health Act 2014.

CONCLUSION

Compatriots, Covid-19 is not a child’s play. It is a matter of life and death. Let us pray. Let us take all precautionary hygienic tips already rolled out globally.

To Read President Buhari’s Shutdown Of FCT, Lagos And Ogun States: The Legal And Constitutional Issues Arising Therefrom (Part 1) By Mike Ozekhome, SAN