Covid-19: Legality or Otherwise of the Presidential Lockdown Order – ‘Timilehin Ojo

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INTRODUCTION

The world got hit without a notice, actions were necessary and indeed taken. Every nation to its fate. Many believe evil is the great adversary of man, that evil is the actions conducted after sin’s temptation or horrifying deeds done in the name of something unholy. This debate is not fit for this paper. What then is the focus? In swift reaction to the COVID – 19 pandemic power was called to play, the world’s concern was about surviving, but through this some actions were taken, some questionable others pardonable, but this paper argues legality or otherwise.

Several actions have been taken in a bid to ensure the safety of all, some other issues may arise because of these actions. The actions by some State Governors locking down the borders of their state, the Corporate Affairs Commission issuing a directive for holding of Annual General Meeting by companies, limitation to the number for any public gathering, lockdown of worship centers, the Presidential order to lock down the Federal Capital Territory, Lagos and Ogun state, amongst others. This paper discusses the last matter on the long list of legal matters stated.

PRESIDENTIAL LOCKDOWN OF THE FEDERAL CAPITAL TERRITORY, LAGOS AND OGUN STATE.

On the 29th of March 2020, President Muhammadu Buhari addressed the nation on the COVID – 19 Pandemic. The president stated that a two-step approach is being taken. First, to protect the lives of Nigerians and residents living here and second, to preserve the livelihoods of workers and business owners to ensure their families get through this very difficult time in dignity and with hope and peace of mind. In line with this, the President issued a regulation which was signed on the 30th of March 2020.

Since the announcement of this, many have argued the legality or otherwise of this act by Mr. President. In a brief and succinct manner, the relevant laws will be considered.

While many argue that the act of the President in this instance is a declaration of a state of emergency, some others say a state of emergency should rather have been declared. In any case, a State of emergency was not declared. It is therefore not of so much use to mention the provisions of S. 305 of the Constitution of the Federal Republic of Nigeria (CFRN). However, a slippery look at this section will do no harm. The President may by an instrument published in the official Gazette of the Government of the Federation issue a proclamation of a state of emergency[1]. The President is to pass it on to the President of the Senate for approval or denial.[2] Situations that may warrant the declaration of a state of emergency by the President are expressly stated[3].  It is important to note the role of the National Assembly and the State Houses of Assembly in respect to a declaration of a state of emergency and this cannot be by passed.[4]

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The lockdown order has been stated to be made pursuant to the Quarantine Act of 1926[5]. Even to this, many still question the power of the President to this regard. The debate is unending as to the constitutionality of the action of the president, a perusal of the law should shed light.

It is right to place a good foundation by first establishing the legality of the Quarantine Act. Yes, it is the Quarantine Act 1926, but codified in the Laws of the Federation. S.315(1) of the Constitution provides that, “Subject to the provisions of this Constitution, an existing law shall have effect with such modifications as may be necessary to bring it into conformity with the provisions of this Constitution…”. To this extent the Quarantine Act remains a legally binding document in Nigeria.

  1. 2 of the Act[6] interprets key words used in this law. “Dangerous infectious disease” was defined to mean 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. The definition of diseases it applies to are wide enough to accommodate COVID – 19. The requirement of a notice to declare any disease as a dangerous infectious disease is also loose. The notice is not required to be issued to any specific authority or arm of government.

Again, the importance of a notice is required for the President to declare any place whether within or without Nigeria to be an infected local area[7]. This is nevertheless constructed in a conditional way, meaning the notice is at the discretion of the President, same condition as to the declaration of a disease as a dangerous infectious disease.

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The Act also empowers the President to make Regulations for a few purposes.[8] They include prescribing steps as well as prevention mechanisms as it relates to any disease declared as a dangerous infection disease. On Monday, 30th March 2020 the COVID – 19 Regulations 2020 was signed, giving credence to S. 4 of the Act.

In same manner as the President is empowered by the Act, the Governor of each State is also empowered to act[9]. It therefore appears that compliance was made with the provisions of the Act. While it may be argued that the Order for a lockdown was made by a broadcast on National TV. It must be noted that the regulation was signed before the commencement of the lockdown Order.

The concern on the legality of the lock down is in respect of the S. 41 – Freedom of Movement – of the Constitution. S. 45 CFRN however 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[10]. The World Health Organization have since declared the COVID – 19 a pandemic, it cannot therefore be correct to argue that it cannot be captured under this section.

It appears to be a confusion to hold that the action of the President in this regard is illegal. S. 45 CFRN already permits the derogation of S. 41 CFRN by any law that is reasonably justifiable in a democratic society. The Quarantine Act is a valid legislation. The Quarantine Act requires the issuance of a Regulation, as it has been done, therefore it will be misleading to argue that a Regulation cannot derogate from the provisions of Chapter IV – Fundamental Human Rights – of the Constitution of the Federal Republic of Nigeria. This is because, the Regulation did not derogate but the Quarantine Act was the instrument legalizing the derogation.

CONCLUSION

A close look at the situation points that the President had one of two options to choose from, either declare a state of emergency or make declarations pursuant to the Quarantine Act and he decided to go with the latter. He should therefore not be faulted, either he acted after the declaration or not, it was timely enough to give effect to his action.

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I do not claim to be ignorant of the concerns many have regarding this restriction, not just limited to now, but a question of how wide the power of the President is within a democratic setting like ours, without any recourse to the legislative arm of government or State Governors. Such powers can stand to be a tool to be used either positively or negatively, luckily it is used positively in this instance. While it may be correct to hold that the power is enormous, it cannot be right to declare same illegal. The call should be made to the appropriate body to carry out an amendment to the Quarantine Act to bring it to conformity with present day realities as to how decisions should be taken in a democratic setting. The Quarantine Act is ancient and was enacted to suit purpose then, it is left for us to alter it to suit purpose today.

If a wrong will save the nation, then it is an acceptable wrong. I assume this to be the position of the larger population. No question of law in death, it is only in existence that the arguments can proceed. However, while we live, we must not overlook the wrong, a call for legality should not be seen as insensitivity. Even in time of war, the law still regulates.

Timilehin Ojo is a legal practitioner in the law firm of Folashade Alli & Associates.
timilehinojo76@yahoo.com

[1] S. 305(1) 1999 Constitution of the Federal Republic of Nigeria

[2] S. 305(2) 1999 Constitution of the Federal Republic of Nigeria

[3] S. 305(3) 1999 Constitution of the Federal Republic of Nigeria

[4] S. 305(2)(4) & (6) 1999 Constitution of the Federal Republic of Nigeria

[5] Quarantine Act 1990 CAP 384 LFN

[6] Quarantine Act 1990 CAP 384 LFN

[7] S. 3 Quarantine Act 1990 CAP 384 LFN

[8] S. 4 Quarantine Act 1990 CAP 384 LFN

[9] S. 4 Quarantine Act 1990 CAP 384 LFN

[10] S. 45(1)(a) 1999 Constitution of the Federal Republic of Nigeria

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