Covid-19: My Thoughts on the Conviction of Funke Akindele and Husband, and the Enabling Laws – Dr. Jerome Okoro

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 BACKGROUND

The Covid-19 crisis assumed an overwhelmingly legal dimension in the Nigerian media space with the recent conviction of Nollywood actress, Funke Akindele Bello and her husband for breaching Lagos laws on social distancing. Having read a deluge of legal critiques that hit hard at this conviction and also some consenting views, against the backdrop of relevant laws, I seek to share a few thoughts on why who threads the path of law in any situation must thread with utmost care.

The popular actress was, on April 6, 2020, charged alongside her husband with the offence of gathering with over 20 persons contrary to the social distancing directives of the Lagos State Governor made pursuant to Regulation 8(1)(a) & (b) and 17(1)(i) of the Lagos State Infectious Disease (Emergency Prevention) Regulation, 2020. They were both convicted and sentenced to community service and a fine of N 100, 000, inter alia.

This case, with the reactions it generated, has set the pace of exposing the legal weakness of most of the measures being employed to safeguard public health in the face of the Covid-19 crisis. It has also brought up crucial questions which must be resolved to guarantee true efficacy of the restrictive policies introduced to control spread of the deadly virus. Apart from moral compulsion and consideration of self-preservation, can anybody abide by the social distancing rules out of genuine apprehension of the law? Can people, for fear of arrest and prosecution, avoid gathering beyond the prohibited numbers when they nurse no fear of contracting the disease, are indifferent, or feel compelled to so gather? Lagos is the focal point of these questions, being Nigeria’s epicentre of Covid-19.

THE LAW AND ITS FLAWS

The Lagos State Infectious Disease (Emergency Prevention) Regulation, 2020 was issued by the Governor of Lagos State on March 27, 2020. It is stated to have been made pursuant to Section 8 of the Quarantine Act Cap. Q2, Laws of the Federation of Nigeria (LFN), 2004 and the Lagos State Public Health Law, Cap. P16, Laws of Lagos State, 2015. The regulation is however caught in the jaws of provisions of those two principal laws. Section 8 of the Quarantine Act empowers a state governor to make regulations under the Act only in the absence of any such regulations by the President of Nigeria. On March 30, 2020, the President issued the Covid-19 Regulations, 2020.

Can the Lagos State Regulation, the only legal instrument of driving social distancing in the hands of the Lagos State Government, stand the test of judicial scrutiny? Many have argued that the Lagos State Regulation is defeated by the constitutional law doctrine of covering the field, considering the President’s Covid-19 Regulations. It is imperative to resolve that distraction from the doctrine of covering the field. For two reasons, the doctrine is not the real handicap of the Lagos Regulations. Firstly, it does not apply between the Lagos Regulations and the President’s Covid-19 Regulations. Secondly, even if it were to apply, it would leave no scar on the Lagos Regulations. The doctrine of covering the field applies only between two distinct laws made by separate legislatures; not between regulations or other delegated legislations made pursuant to the same law. The doctrine seeks to nullify a law of a state legislature and preferentially uphold an Act of the National Assembly when the two laws conflict on one subject-matter in the concurrent legislative list. In this case however, a federal law, namely the Quarantine Act, granted the President power to make regulations, and then enables a state governor to fill the vacuum when the President has not so acted. This is not contemplated by the doctrine of covering the field, and that is why the doctrine is inapplicable here. If the doctrine were to apply in this scenario, the Lagos Regulations would survive the inconsistency rule under the doctrine. This is because Section 4(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that it is only when a state law goes contrary to a validly made federal law that the state law would be made void to the extent of the inconsistency. The Lagos Regulations is not inconsistent with Covid-19 Regulations. The latter simply compels people to “stay in their homes”, while the former elaborately provides for social distancing and sets rules on social gathering. Thus, the Lagos Regulations complement, rather than contradict the federal one. For this reason, the doctrine of covering the field would not have suppressed the Lagos regulation if it were applicable here. But, for the earlier-stated reason, it is not applicable.

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What really impedes the Lagos regulations is Section 8 of the Quarantine Act which forbids a state regulation to exist and operate alongside a federal one. The Governor of Lagos State was free to make the Lagos State Infectious Disease (Emergency Prevention) Regulations, 2020 on March 27, 2020 when he did, there being no related regulations from President as at then. The governor’s regulations could also have backed up and sustained a conviction under the Quarantine Act within the period from March 27 to March 30, 2020. But, upon the arrival of Covid-19 Regulations on March 30, 2020, the Lagos Regulations fell into desuetude.

The Lagos regulations can neither survive on its other stated principal law namely, the Public Health Law, for it fails some fundamental provisions of that law. Under the Public Health Law, it is the State Commissioner for Health, and not the Governor that is empowered to make regulations pursuant to that law. No part of the Lagos regulations indicates that it was issued by the Governor in acting capacity as the State Commissioner for Health, which he was at liberty to have done.

WHICH LAWS COULD HAVE SUPPORTED THE CONVICTION?

From the foregoing analysis, it is clear that social distancing, in the terms of the Lagos regulations and the governor’s declarations, currently stands on no potent law. The legal instruments on which the prosecution and conviction of Funke Akindele Bello and her husband ought to have been anchored are the Quarantine Act, and the President’s Covid-19 Regulations, 2020. Granted that these laws do not expressly provide for social distancing, but they create criminal liability all the same. By Section 5 of the Quarantine Act, a person incurs criminal liability only upon contravention of regulations made pursuant to the Act. Did the couple contravene the Covid-19 Regulations? Regulation 1(2) of the Covid-19 Regulations, the pertinent provision, states that, “All citizens in these areas (referring to FCT, Lagos and Ogun States) are to stay in their homes…” As a matter of fact, Funke and her husband stayed in their home. Unfortunately however, by the principle of parties to an offence, the scope of criminal liability is very wide and extends far beyond the person who did the act or made the omission constituting the offence. The net swoops on anybody who played any part in aiding or facilitating the offence. That was how Funke Akindele and her husband became liable to equal extents with the guests at their party, having organized the party and invited the guests out of their own homes. Their act would be construed as aiding and facilitating contravention of the stay-at-home order in the Covid-19 Regulations. In respect of parties to an offence, Section 16(1) of the Lagos State Criminal Law, 2011, on all fours with Section 7 of the Criminal Code Act, Cap C38 LFN 2004, provides as follows:

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“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling another person to commit the offence;

(c) every person who aids another person in committing the offence; or

(d) any person who advises, counsels or procures any other person to commit the offence.”

Thus, it would have been safer and more sustainable if the charge and conviction in this case were built on Sections 4 and 5 of the Quarantine Act, Regulation 1(2) of the Covid-19 Regulations, and Section 16(1) of the Lagos State Criminal Law. No doubt, the Quarantine Act is a federal law, but it is made applicable to states by creating the omnibus offence of contravention of regulations which operate in states. Interestingly also, the Act, in its Section 7, vests jurisdiction on Magistrate Courts, thereby consolidating the prosecutorial powers of a state.

The slip up in leaving out the above legal instruments in Funke Akindele’s case could still have been remedied if the learned magistrate, after hearing the couple’s plea, had enquired deeper into the various competing laws, to determine which laws could firmly support the conviction, notwithstanding what the charge sheet contained. Then, the court would have overlooked the charge and proceeded to convict on a stronger legal anchor. The resulting conviction under such circumstances would be shielded by the trite law that an accused can be convicted of an offence other than that for which he is expressly indicted on the charge. This was much illustrated in Akpan v. State (2019) LPELR- 48170 (CA) and Babalola v. State (1989)7SC (pt.7) 94 at 192. By this principle, a person charged with one offence under the law can be convicted of another. Likewise, a person charged under the wrong law or under a void law can be convicted under the right or effective law with possible variation of the offence. These can be done without any need for prior or subsequent amendment of the charge. All that are required of a judge or magistrate in that circumstance is to ensure that the substitute crime has been proven and to clearly identify the law under which he is convicting. The underlying rationale is that no crime, proven before the court, and known to any valid law within the jurisdiction of that court should go unpunished, regardless of the shortcomings of the charge.

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FOR SAFER NAVIGATION

As it stands however, the conviction remains effective until subjected to appeal, and overturned at that appellate level. But, with the avalanche of dissenting opinions drawn so far, the Lagos State Government should either come up with sustainable legal instruments on enforcing management and control of the Covid-19 pandemic and its attendant circumstances, or judiciously utilize the well-founded laws.

It would also be safer at the moment, to rather channel all efforts to directly tackling the pandemic and the much-needed social welfare than on prosecution of offenders. Prosecution now may itself facilitate spread of the virus more than the act or omission for which prosecution is carried on. The grave risk of the viral spread in a situation where a judge/magistrate, lawyers, the accused, friends, family, and the press would cluster either in or around the court before, during and after legal proceedings is better imagined.

Cases demanding court’s attention in the face of this pandemic are cases of extreme urgency. Prosecution of any offence relevant to Covid-19 is of no urgency, as there are no limitation laws on any such offence. Prosecution should therefore be shelved until the public health danger clears out.

Dr. Jerome Okoro – Partner, Tax, Energy Law and Dispute Resolution at Hermon Legal Practitioners. jerome@hermonlaw.com. 08035487564.

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