BY Olubayo Durojaye
It is no more news that the global pandemic Corona Virus (COVID-19) also known as SARs COV 2 is a disrupter of human activities and by virtue of this singular act of the spread of the virus, virtually all known human rights and privileges has been in some cases suspended, violated, abused and trampled upon by governments and overzealous law enforcement agents, in the same vein the sudden emergence of COVID-19 has caused a lot of Constitutional crisis.
COVID-19 came without any respect for human beings not to talk of human rights or the Constitution, it was such an emergency that nobody prepared for. The arrival of the pandemic in the human space gave the opportunity and rise to increase in subtle and substantial abuse of human rights and Constitutional crisis and thereby causing lot of different legal opinions to be enthused by legal luminaries.
This short article shall examine a number of legal issues, mainly on constitutional crisis, amidst the efforts of the Government and the President to address and contain the pandemic COVID-19 otherwise known as SARs COV2 more particularly in Nigeria.
The Constitution of the Federal Republic of Nigeria 1999 as Amended is the grundnorm and the Fons et Origo, which simply means that the Constitution of the Federal Republic of Nigeria is supreme and by that singular honour accorded to the Constitution no law can rank over and above the provisions of the Constitution in such an inconsistent manner.
The Constitution in Chapter 1, Part 1 and particularly Section 1 Subsection (1) provides as follows: This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
The Constitution specifically in Subsection (3) states that: if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
Of course, the relevant laws that are under focus to my mind are:
- Constitution of the Federal Republic of Nigeria 1999 as Amended
- The Quarantine Act 1926
- The National Emergency Management Agency (Establishment, Etc.) Act 1991
- The National Center for Decease Control and Prevention(Establishment) NCDC Act, 2018
- National Health Act, 2014.
Public Health Ordinance and so many other related laws and regulations.
However, it must be noted that the relevant provisions of the above mentioned laws are expected to be complimentary to the Constitution and not contradictory to the grundnorm, nonetheless our focus shall be limited to Constitutional issues for the sake of this article.
Chapter four (IV) of the 1999 Constitution provides from Sections 33 to 45 of the Constitution for the fundamental rights of the citizens of the federation. But of special concern to us in this short article will also be Section 45 which is a very germane part of Chapter four (IV) of the Constitution, but most time the reality and importance of Section 45 of the Constitution has been relegated to the background by constitutional lawyers in times like this.
The realistic legal issues and questions amidst this constitutional crisis, and the fast killing virus I believe in my own opinion are as follows:
- Was there any need for a lockdown order of the President which nearly suspended substantially the rights of citizens, and if the answer is in the affirmative to what extent is the legality of the order?
- Was there any conflict between the provisions of Sections 2, 3, and 4 of the Quarantine Act and Section 305 of the Constitution?
Was there any need for a lockdown order of the President which nearly suspended substantially the rights of citizens, and if the answer is in the affirmative to what extent is the legality of the order.
On January 30 2020, the World Health Organization (WHO) declared Corona Virus (COVID-19) also known as SARS Cov-2 a Public Health Emergency of International Concern (PHEIC).
Reasonably it is believed, that it was based on this declaration by World Health Organization that On the 29th of March, 2020 that President Muhammad Buhari ordered a lockdown of major cities in Nigeria such as Abuja the FCT, Lagos and Ogun State being the area in the country that is most prone to the spread of the deadly Corona Virus, (COVID-19) as at the time. The 14-day lockdown of commercial hub, Lagos, neighboring Ogun and the nation’s capital Abuja was announced on the 29th of March in a nationwide television broadcast.
Almost immediately after the presidential address there were reactions as to whether there was need for a lockdown of the affected areas and whether or not the lockdown order was legal and constitutional or not.
Several opinions and reactions flooded the major social media and news platforms ranging from citizens that are not lettered in the laws to lawyers of different status and of different jurisprudential school of thoughts.
The daunting legal question before us is whether the lockdown order by the President is legal, lawful and constitutional or not.
The President’s order for lockdown is premised upon the provisions of the Quarantine Act of 1926 which law however old has been published in all of the editions of the Laws of the Federation of Nigeria, which means no matter how old the said law is, the law is still part of our legislation and therefore any relevant sections of that law can be applied or invoked for the greater good of greatest number of the good people of Federal Republic of Nigeria. The relevant Sections of the Quarantine Act 1926 which was invoked by the President Are Sections 2, 3 and 4 of the Act which provides thus:
Section 2 provides thus:
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;
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, whether may be the extent and population of such areas
Section 3, provides thus
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 there upon such place shall be an infected local area within the meaning of this Act.
Section 4, Regulations
The president may make regulations for all or any of the following purposes-
- Prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declare to be an infected local area;
- 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;
- 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
- Preventing the transmission of nay dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;
- Prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
- Fixing the fees and charges to be paid for any matter or things to be done under such regulations, and prescribing the persons by whom such fees and charges shall be paid, and the person by whom the expenses of carrying out any such regulations shall be borne, and the persons from any such expenses incurred by the Government may be recovered;
- Generally carrying out the purposes and provisions of this Act.
Section 5 Penalties
Any person contravening any of the regulations made under this Act shall be liable to a fine of N200 or to imprisonment for a term of six months or to both.
From the provisions of the above Quarantine Act, it is clear that the President can declared any place within or outside Nigeria as an infected local area and prescribed the steps to be taken thereof. What is required by the law is that the President will issue a notice and nothing more. The law also empowers the president to then after issuing a notice to prescribe the steps to be taken.
In essence, once the President complies with the procedure as stated under the provisions of the relevant sections of that Act above mentioned, then such steps taken upon that compliance will be lawful, legal and consistent with the provisions of the grundnorm which is the Constitution.
The Constitution itself in Section 14 Subsection (2) paragraph (b) provides that the security and welfare of the people shall be the primary purpose of government, we can safely say that the actions taken by the President in relations and under the sections of the Quarantine Act and Section 14 of the Constitution is legal and there are reasons for the president to order a lockdown of the prescribed areas specified for the sake of welfare of the citizens of the Federal Republic of Nigeria.
For the purpose of welfare of Nigerians, the order of the President can be backed up by the provisions of Section 14 by virtue of the fact that whatever the President has done or cause to be done must be for a greater good of the greatest number as enunciated by one of the legal jurist Jeremy Bentham, Jeremy believe that anything done for the greater good of the greatest number is the law.
In a nutshell, the actions of the President are not inimical to any known law but aided the law and also help Nigerians to realize their rights to life as provided under Section 33 of the Constitution.
The summary is that the President can order a lockdown by provisions of the Quarantine Act as long as the Quarantine Act is still part of our laws then the longevity of the laws has nothing to do with the effectiveness of the law as negatively opposed by some constitutional lawyers. The provisions of the said Quarantine Act are not inconsistent with the provisions of the Constitution.
It must be noted however that the supremacy of the Constitution does not mean that the Constitution does not accommodate the provisions of other laws or that the Constitution does not permit the applicability of other laws, other laws only becomes in applicable except and only when its provision is inconsistent with the provisions of the Constitution. Can we then say that the provisions of the relevant sections of the Quarantine Act is inconsistent with the Constitution, the judicious answer is consequently No.
Not minding the general principle of covering field at this time, the position of the law as was applied in the case of SARAKI V. FRN (2016) LPELR 400 13(SC), the Supreme Court stated Where the doctrine of covering the field is in vogue in the Constitution any other legislation on the same field whether by the Federal/State government must bow to the dictate of the Constitution. That the law or legislation, if not repugnant must be supplemental or subsidiary to the constitutional provision.
The case of INEC V. BALARABE MUSA (2003) 3 NWLR (PT. 806) 72 is also instructive in this regard where Olayinka Ayoola, JSC stated that where the constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have covered the field where it had expressly reserved to the National assembly or any other legislative body the power to expand on or add to its provisions in Regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how it had derived its legislative authority to do so from the Constitution itself.
By way of summary the decisions of the court above cited is to the effect that the law or legislation if it’s not repugnant is supplemental or subsidiary to the Constitution, also the decisions enthused the fact that it is when the other law or legislation seeks to add or expand on a subject that is already covered by the constitution. The instance case before us is not such that the Quarantine Act seeks to add or expand what the Constitution has covered but we can vividly see that the Quarantine Act is a legislation that covers the particular subject matter in a specific and manner. The provision of the Quarantine Act is special in that it covers the subject of outbreak of disease as we currently experiencing in Nigeria.
Is there any conflict between the provisions of Sections 2, 3, and 4 of the Quarantine Act and Section 305 of the Constitution?
Section 305 of the Constitution provides that
- Subject to the provisions of this constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issues a proclamation of a state of emergency in the Federation or any part thereof.
- 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.
- The President shall have to issue a Proclamation of a state of emergency only when;
- The Federation is at war
- The Federation is in imminent danger of invasion or involvement in a state of war;
- There is actual breakdown of public order and public safety in the Federation or any part thereof to such extent as to require extraordinary measures to restore peace and security;
- There is a clear and present danger of an actual breakdown of public order and public safety in the Federation or any part thereof requiring extraordinary measures to avert such danger;
- 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;
- There is any other public danger which clearly constitutes a threat to the existence of the Federation; or
- The President receives a request to do so in accordance with the provisions of subsection (4) of this section.
- 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 issues 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.
- The president shall not issue a proclamation of a state of emergency in any case to which the provision 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.
- A Proclamation issued by the President under this section shall cease to have effect-
- If it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation;
- If it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within two days when the National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the proclamation;
- After a period of six months has elapsed since it has been in force;
Provided that the National Assembly may, before the expiration of the period of six months aforesaid, extend the period of the proclamation of the state of emergency to remain in force from time to time for a further period of six months by resolution passed in like manner; or
- At any time after the approval referred to in paragraph (b) or the extension referred to in paragraph (c) of this subsection, when each House of the National Assembly revokes the Proclamation by a simple majority of all the members of each House;
In conclusion, the comparative reading of Sections 2-4 of the Quarantine Act and the entire provisions of Section 305 of the Constitution alongside the provisions of Section 45 and 14 of the Constitution shows clearly that Section 2 to 4 of the Quarantine Act is not inconsistent with the provisions of the Constitution. In summary, the Quarantine Act invoked by the president is not in any way inconsistent with the Constitution, the action of the President is interdem with the Constitution and not against it. The major and focal points in all of these are, the welfare of Nigerians, the consistent nature of the relevant sections of the Quarantine Act and the provisions of Section 45 and 14 of the Constitution.
- Medium.com. The Doctrine of Covering The Field Has The Endorsements Of Nigeria Constitution And Of Nigeria Supreme Court Of Nigeria Explain How The Doctrine Operates.
- Constitution of the Federal Republic of Nigeria 1999 as Amended
- INEC V. BALARABE MUSA (2003) 3 NWLR (PT. 806) 72
- SARAKIi V. FRN (2016) LPELR 400 13(SC),
Olubayo Durojaye is the Lead Partner at Officium Legis (Legal Practitioners & Consultants), he offers legal advice on several legal issues, a social commentator, writer and consultant. Contacts 07030244279, 08180244279