The Corona Laws (2) – Ebun-Olu Adegboruwa SAN

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We are now in a lockdown, no thanks to COVID 19. The President issued the directives in his nationwide broadcast of March 29, 2020, virtually shutting down Lagos and Abuja, the two most important cities in Nigeria. And we cried blue murder, insisting that the President could not restrict the movement of citizens through a mere broadcast. People spoke in different directions, depending mostly on their political leanings. By the following day, a COVID 19 Regulation had emerged, practically translating the presidential broadcast into some form of subsidiary legislation. And then the legal fireworks started, as to the efficacy and propriety of the COVID 19 Regulations. The one directed at me was from the Honourable Attorney-General of the Federation, Mr. Abubakar Malami, SAN. Let us examine it further.

It is my humble position that no single individual (no matter his status) can and should be empowered to restrict the movement of citizens or to suspend any of their fundamental rights granted by the Constitution. In his response to my statement on the illegality of the restriction order placed upon Lagos, Ogun and Abuja by the President, the AGF relied on the Quarantine Act as authority for movement restriction. This colonial law was simply enacted by the British officials having charge over Nigeria to protect themselves from any disease that they suspected could be dangerous from their subjects then. Being a law enacted in 1926, it was targeted mainly at those sailing through ships and it contains nothing on those flying by air, those moving by train or motor vehicles. That law cannot find any place in our independent Nigeria, even though it is preserved by section 315 of the Constitution.

The Quarantine Act itself 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. 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. The Quarantine Act of 1926 or 1990 or 2004, 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.

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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. After the right to life, the next basic right is the liberty of the person and the freedom of movement. How can we endow a single person with powers over the movement of millions of citizens in Lagos, Ogun and Abuja?

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? In the present case, the purported regulation made by the President bears no direction, it is lacking in details, subject to abuse and conflicting interpretation and execution, as has happened in Lagos and Abuja, where citizens have been trampled upon by security agents, on account of the said regulations.

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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.

Some have argued that fundamental rights are not absolute and that they can be derogated from, in appropriate cases. I agree. Now, 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 quarantine. It cannot be the contemplation of the Constitution that the fate, liberty and freedom of citizens should rest in a single individual, no matter his status or office.

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.

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 – Okafor v. Lagos State Govt & Anor. and Adegboruwa v IGP & Ors. 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. The liberty and freedom of movement of a citizen are next to his right to life and any law that can justify a limitation on such must be express and direct, in its content and implementation, including appropriate sanctions for its breach. This is not the case with the regulations made by the President, which was simply a hurried conversion of the Presidential broadcast, following widespread criticisms thereof.

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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 breath, 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.

In this day and age, we shouldn’t be debating the capacity of an executive President to lockdown his people without direct legislation, which will specify the details of such lockdown, the nature thereof, the consequences of its breach and detailed regulations on its implementation, especially by overzealous security officers. It wasn’t long indeed that we got to see the viral video of policemen overturning shops, destroying valuables and beating up people, for alleged violation of the hastily-drafted COVID 19 Regulations. Some of the security officers were simply at a loss on what to do with violators, whether to just turn them back to their homes, or to arrest them, or to beat them up or shoot and kill them, as was done in Warri, Delta State, where soldiers opened fire on an unarmed civilian, killing him right on the spot, for allegedly refusing to stop when directed to. That cannot be the goal of any law or regulation, which is purported to have been issued to safeguard human lives but is turning to be the cause of death, torture and other deprivations. The human saying is always that once the purpose of a thing is not known or specified, then its abuse is inevitable. The Ogun State model should be the best option in the circumstances, given that daily wage earners need to go out to eke out a living for themselves.

As published in the Nigerian Tribune of 07/04/2020

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