The Attorney-General of the Federation, Abubakar Malami, SAN, says President Muhammadu Buhari’s declaration of Lagos, Abuja and Ogun under lockdown to help stop the spread of coronavirus in the country is valid, legal and enforceable.
Malami said this in a statement he issued on Monday in Abuja while reacting to Mr Ebun Olu-Adegboruwa, SAN, on his criticism of Buhari’s proclamation on restriction of movement on account of COVID-19.
Buhari, in a nationwide address on Sunday, ordered a lockdown of Lagos, Ogun and Abuja over the spread of COVID-19 with effect from 11 p.m. on Monday, for 14 days.
“Mr Olu-Adegboruwa is wrong and misconstrued the law of sections 5, 14, 20 and 45 of the 1999 Constitution of the Federal Republic of Nigeria and Sections 2, 6 and 8 of the Quarantine Act, as well as Article 4 of the International Covenant on Civil and Political Rights and Article 11 on Human and Peoples Rights which make the declaration by His Excellency the President, valid, legal and enforceable’’.
“Ebun Olu-Adegboruwa had claimed that the president lacked the powers to restrict movements in any part of the country without the consent of the National Assembly.
“I wish to note that he did not state any constitutional or statutory provision which the president has breached in the present circumstances.
“It is important to inform the discerning members of the public that the president did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both Houses of the National Assembly.
Malami said that even at that Section 305(6)(b) of the 1999 Constitution (as amended) permits a proclamation of a State of emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down.
He said the learned silk also goofed when he questioned the president’s powers to restrict movement and claiming that such powers can only be exercised by the State Governors and the respective State Assemblies.
“It is clear from the president’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious corona virus disease.
“The restriction of movement came on the heels of advice received by the president from the Federal Ministry of Health and the NCDC, the two focal agencies in the fight against COVID-19.
“It therefore becomes obvious and clear that the restriction order is part of a national quarantine measure’’.
He said that the patriotic step taken by Mr President in overriding national interest has been subjected to attack for allegedly being illegal.
“The correct position remains that the President acted legally under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN whose Long Title reads:
“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 not in doubt that COVID-19 is an infectious disease of a contagious nature which the president has rightly declared under Section 2 of the Quarantine Act to be a dangerous infectious disease.
“Section 3 of the Act enables the president to declare any part of Nigeria as an infected area. Section 4 of the Act further empowers the president to make regulations to prevent the introduction, spread and transmission of any dangerous infectious disease.
“Section 6 of the Act requires the President and State Governors to provide sanitary stations, buildings and equipment’’.
According to Malami, `in recognition of the critical roles being played by the state governors in these trying times, the federal government has been working with the States in line with the dictates of Section 6 of the Act.
“To this end, the federal government is providing a financial stimulus to the Lagos State Government in the sum of N10 billion and to the NCDC in the sum of N6.5 billion for the benefit of the entire 36 States and the FCT.
“I also wish to draw the attention of the public to the provisions of Section 8 of the Quarantine Act which clearly gives high precedence to the President above State Governors in responding to matters of public health’’.
The AGF said that no role is conferred on the State Houses of Assembly under the Act. Section 8 reads thus:
“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 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.
“The President has notified the concerned States and the total restriction of movement as ordered by the President has not been previously made or implemented in any of the affected areas (Lagos, Ogun and FCT).
“It is, therefore, erroneous and mischievous for anyone to claim that the President is usurping the powers of State Governors and State Houses of Assembly’’.
He said the foregoing is strengthened by the fact that Quarantine is one of the items under the Exclusive Legislative List under the 1999 Constitution which means that a State House of Assembly cannot legislate on it.
“The above notwithstanding, going by the doctrine of covering the field, the President did not violate any law.
“The provisions of the Quarantine Act above enjoy constitutional backing under Section 45(1)(a) of the 1999 Constitution being a law that is reasonably justifiable in a democratic society in the interest of public health.
“Furthermore, it is common knowledge that COVID-19 is a global pandemic that is crippling nations and economies, therefore, stringent measures at the national level are required.
“This is not a situation whereby the federal government is expected to wait for state governments to act first’’.
Malami said that the International Treaties to which Nigeria is signatory, recognise the need to depart or derogate from fundamental rights.
“Especially freedom of movement obligations in deserving situations such as public health – see Article 4 of the International Covenant on Civil and Political Rights, Article 11 of the African Charter on Human and Peoples’ Rights.
“It is also remarkable to note that the President has so far acted in accordance with the executive powers of the Federation conferred on him under Section 5(1) of the 1999 Constitution (as amended) as well as the provisions of Section 14(2)(b) which provides that the security and welfare of the people shall be the primary purpose of government.
“In the same vein Section 20 of the 1999 Constitution (as amended) requires the State to protect the environment and safeguard the water, air and land of the country’’.
He said that this is not the time for technicalities or legal theatrics rather it is a time to stay safe and stay alive.
“I, therefore, enjoin all persons, entities and authorities to ensure strict compliance with the restriction order and the exemptions thereto as issued by the President in the overall good of our people and dear nation’’.
Below is the response of Adegboruwa:
WHY THE QUARANTINE ACT OF 1926 CANNOT LEGALIZE RESTRICTION OF MOVEMENT BY THE PRESIDENT
(Being a response to the Statement of the Honourable Attorney-General of the Federation and Mr. Femi Adesina)
1. The Quarantine Act has no provision for the restriction of the movement of any citizen. A fundamental right expressly granted by the Constitution cannot be taken away by assumption, inference or deductions.
2. Section 41 (1) of the 1999 Constitution expressly donates freedom of movement to all citizens and it cannot be taken away by way of executive proclamations or regulations, as an executive regulation cannot in law take away a fundamental right granted by the Constitution.
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.
ORIGIN AND SCOPE OF QUARANTINE
The practice of QUARANTINE evolved in or about 1423 in Venice, which had a quarantine station on an island to check the growth of diseases brought by ships, by isolating and detaining ships containing persons or animals suspected of having or carrying a dangerous communicable disease. To this end, ships arriving in Venice from infected ports were required to sit at anchor for 40 days before landing. Quarantine is thus derived from the Italian words quaranta gioni, which means 40 days.
A regulation made under and pursuant to quarantine is NEVER to be extended to abridge extant fundamental rights declared under the Constitution. Indeed, such regulation must not be in conflict with any subsisting legislation, such as section 41 of the Constitution, granting freedom of movement. Without any doubt, the President cannot rely on the Quarantine Act as the basis for seeking to restrict the movement of citizens, being a fundamental right guaranteed under section 41 of the Constitution.
THE MANIFEST ILLEGALITY OF THE REGULATIONS MADE BY THE PRESIDENT
For the President to be entitled to make any regulation under sections 4 and 8 of the Quarantine Act, he must have complied with the conditions precedent laid down in sections 2 and 3 of the said Act, namely that:
(i) the President must first make a DECLARATION of an infectious disease, by a notice duly published in the Official Gazette, stating such to be an infectious disease within the meaning of the Quarantine Act. That has not been done, making the regulation made by the President to be inchoate and premature. For instance, in the first subsidiary legislation contained in the Schedule to the Quarantine Act, a declaration was made concerning Sleeping Sickness, to be a dangerous disease within the meaning of the Act.
(ii) in addition to the above, the President must also make another declaration, by notice in the Official Gazette, stating the particular place affected as an Infected Local Area and such must be a well-defined area, such as a local government, a town or a community, and not just a blanket tag. This has not been done. How then do we lockdown citizens and detain them forcefully for two weeks, in one single spot, without any charge or offence alleged against them?
The only regulation so far made under the Quarantine Act is the Quarantine (Ships) Regulations of December 4, 1968, containing 28 sections and 8 Schedules. There is no single provision therein, restricting the movement of persons. This is because the practice of quarantine has nothing to do with restricting movement of persons but rather to isolate those carrying infectious diseases. So, even under the Quarantine Act, the President has acted illegally.
4. The conditions for interfering with the fundamental right of movement are as stated in section 41 of the Constitution itself or in section 45 (1) thereof, the latter prescribing a “…. a LAW (not regulation or presidential broadcast) that is reasonably justifiable in a democratic society.” The President cannot by mere executive regulation, take away the freedom of movement, expressly granted under the Constitution. In any event, the regulations anticipated under sections 4 and 8 of the Quarantine Act are limited to those infected with infectious diseases for the purpose of their guarantine.
5. There is nowhere in sections 4 or 8 of the Quarantine Act that it is stated or anticipated that the President or Governor could make regulations for the restriction of movement of persons on account of infectious diseases, against persons not so infected. Regulations in relation to quarantine are always LIMITED to the infected persons.
6. Laws purporting to infringe upon or derogate from the fundamental rights of citizens must be express, explicit, unambiguous and not subject to personal considerations and permutations, to prevent abuse. The Quarantine Act does not contain any provision expressly authorizing the restriction of movement of citizens and such power must not and cannot be assumed by the President.
7. For the President to seek to restrict the movement of citizens, he must act under a law that EXPRESSLY permits him to so do, not by IMPLICATION, as he has purported to do under the Quarantine Act. In a proper federation, it is inappropriate for a President to take over the affairs of any State within the federation, without the input of the governor and the House of Assembly of that State. In Lagos State, the Governor had already introduced measures to curtail the spread of COVID 19, without violating the right to freedom of movement. In Ogun State, the Governor eventually postponed the President’s proclamation to April 3, 2020, on the ground that the people of the State were not prepared for the lockdown, whereas Mr. Femi Adesina claimed that it took effect from March 30, 2020. In another breadth, the Honourable Minister of Finance later claimed to have secured approval to exclude certain financial transactions from the lockdown. There should have been meaningful consultations before the President’s proclamation.
8. Section 305 (3) (d) of the Constitution permits the President to declare a state of emergency in any part of Nigeria through an instrument published in the official gazette when “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.” The COVID 19 pandemic qualifies an imminent danger, a disaster and a natural calamity. The President should have explored this window for his declaration.
9. Where the President declares a state of emergency under section 305, he must transmit a copy of the official gazette to the National Assembly to pass a resolution for its approval or rejection. Such declaration will cease to have effect if after two days of the National Assembly being in session or after ten days its being out of session, it is not approved by the National Assembly through a resolution.
10. We cannot take away the fundamental rights of citizens through executive proclamations made on the altar of some exigency or self-induced necessity, as the President had enough time since COVID 19 broke out, to have taken all reasonable steps within the law, to address it.
I must state that I am not opposed to the steps taken by the President and some Governors, to address the COVID 19 pandemic. I align myself totally with these measures for the safeguard of citizens; however, my primary concern is not to resort to a violation of the Constitution under the guise of exigency, as that could well be a dangerous signal for perpetrating illegality, even in the time of peace.
It gladdens my heart greatly, that the Honourable Attorney-General of the Federation and my Learned Brother Silk, Mr. Abubakar Malami, SAN, is making very copious references to international protocols to support the breach of the fundamental rights of citizens, hoping well that when we seek to rely on these same protocols to enforce fundamental rights in future, they will not become foreign laws of western nations.
I therefore humbly urge the President to do the needful by approaching the National Assembly and the States concerned, to harmonize his actions with the laws of our land, failing which all lovers of the rule of law should brace up to challenge this constitutional breach in court, when we have been fully delivered from the compulsory lockdown.
God bless Nigeria.
Ebun-Olu Adegboruwa, SAN
Lekki, Lagos.
