A popular Nollywood star, Funke Akindele and her husband, Rasheed Bello were convicted earlier today by a Chief Magistrate Court in Lagos State. Funke was alleged to have organised a birthday party in contravention of the Lagos State Social Distancing Order which was widely reported by print and online media on 19 March 2020. While the conviction was welcomed by the many Nigerians, some constitutional lawyers and rights activists have queried the legality of the said conviction. I share the view that the conviction may be quashed on appeal as it failed basic constitutional requirements.
It is true that we all need to observe social distancing, staying at home and other precautionary steps that governments at all levels have put in place to stop the spread of Covid-19, particularly as these steps are now backed by laws. Notwithstanding, we must pay attention to due process.
Funke Akindele and her husband were charged under 8(1)(a) & (b) and 17(1)(i) of the Lagos State Infectious Disease (Emergency Prevention) Regulation 2020 (LSIDR). This Regulation was made pursuant to the Public Health Law, CAP P16 Laws of Lagos State 2015 and the Quarantine Act, CAP Q2, LFN 2004.
The LSIDR is a subsidiary legislation which was validly made by the Governor of Lagos State. There is no dispute on this. However, LSIDR fails to do what the enabling laws had envisaged. The latter permit the Governor of Lagos State to make Regulations on certain measures that should be taken in order to protect public health and safety. In order words, the various orders that have been issued by the Governor -social distancing restriction of movements and so on- are to be documented and issued as Regulations. Rather, LSIDR merely restates the powers that are already granted by the enabling laws.
The only relevant part of the LSDIR is Regulation 16 which provides that “ save as otherwise provided in this Regulation, the powers conferred on the Governor under this Regulation may be exercised by way of oral or written declaration, notices, or any other medium as the Governor may deem necessary”. Thus, in the view of the Court , Funke Akindele and her husband violated the directive of the Governor which was made 19 March 2020. The question we need to ask is whether an oral declaration is valid in law and whether any criminal liability can arise from a violation of an oral declaration.
The drafters of LSDIR presumably acted as if the Regulation were to be an enabling law. This is wrong. A subsidiary legislation must limit itself within the scope prescribed by an enabling law. If for instance an enabling law states that a Governor should take certain measures by Regulations, the Governor can only act by Regulations and not through other means. The Governor cannot empower himself under LSDIR to act by oral proclamations when the Quarantine Act or Public Health Law states that he should act via Regulations. Therefore, I am of the view that the oral declaration on social distancing may not have any legal effect until it is documented and/or published as a legal instrument.
This takes us to the second point. It is a cardinal principle of our constitutional law that no person shall be punished for an offence except that the offence and its punishment are clearly defined and written down in a law or subsidiary legislation (such as LSDIR). This is contained in s.36(12) of the 1999 Constitution. This same principle was applied in Aoko v Fagbemi (1961) All NLR 401 and Okafor v People of Lagos State (2016) LPELR 41066. Okafor’s case is very recent and is on all fours with Funke’s case. In that case, Okafor was convicted for violating a sit-at-home order during the monthly environmental sanitation exercise in Lagos State. Lagos State lost on appeal simply because the said Governor’s sit-at-home directive, though allegedly made pursuant to the state environmental laws, was not documented. The Court of Appeal had no difficulty in setting aside the conviction because no citizen can be prosecuted under a non-existent governor’s directive. The Court was emphatic on s.36(12). Therefore the oral declaration of Governor Babajide Sanwo-Olu may not suffice to establish criminal liability. The Governor should codify the oral declarations as Supplementary Regulations as the case may be.
Lastly, my colleague, AbdulHafees Khalid raised the constitutionality of the State Regulations with me. I agree that the constitutionality of these Regulations are doubtful. Quarantine is item 54 on the Exclusive List. Only the Federal Government has the competence to legislate on Quarantine (which is predicated on the break out of an infectious disease). The Public Health Law of Lagos State cannot validly empower the Governor to make Regulations on matters on the Exclusive List. It may be argued that the Quarantine Act permits that power to be exercised by a Governor. This can only arise where the President has failed to make necessary Regulations. In this case, the President has issued Regulations. Whatever power that has been exercised by the Governor under the Act is no longer effective. See s.8, Quarantine Act.
Funke Akindele and her husband ought to have been charged under s.6 of the Quarantine Act and FG’s COVID-19 Regulations, 2020.