Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Nigerian constitutional lessons from the Covid-19 pandemic 09 Apr 2020

On March 18, 2020, the Lagos State and Ogun State governments placed a ban on public gatherings of over fifty people. On March 21, 2020, the Lagos State ban on gatherings was reviewed downward to not more than 20 people. This was part of the responses of the two state governments to the COVID-19 coronavirus pandemic, which as of March 25, had affected 194 countries and territories around the world, killing close to 20,000 people.  On March 27, the Kogi State and Rivers State governments announced they would close their state borders to reduce the spread of the virus to their states.
    
However belated this measure and others taken by the federal and state governments might be, there is a general consensus that they were and continue to be necessary to curb the spread of the disease and to preserve public safety. There have, however, been questions as to the legality and constitutionality of these directives by the state governments without a proclamation of a state of emergency by the president.

The ambiguity over the legality of the states’ directives stems from various provisions of the 1999 Constitution. Section 35 guarantees every person’s right to personal liberty; Section 40 guarantees every person’s right to assemble freely and associate with other persons; and Section 41 guarantees every citizen’s right to move freely throughout Nigeria.

In making their case, some commentators have cited the case of Faith Okafor v. Lagos State Government & Anor. In a judgment delivered on November 4, 2016, the Court of Appeal declared as unconstitutional the directive of the Lagos State Government restricting movement within the state between 7:00am and 10:00am on the last Saturday of every month for the purpose of environmental sanitation. The court deemed the order by the state, which was without an enabling law, a breach of the fundamental rights of the residents.

I wrote about this case in my article in the July 2019 edition of this magazine where I considered whether the Lagos State Government should reintroduce the monthly environmental sanitation exercises. The COVID-19 pandemic, however, cannot be compared to monthly environmental sanitation exercises.

Data from around the world on the infectiousness and fatalities of the disease shows that the danger it portends to public health and safety, as well as the havoc it is wreaking on the local and global economies and to livelihoods is on a scale that requires different approaches to effectively address it. COVID-19 is a highly contagious respiratory disease that has overwhelmed even the health care systems of developed nations. Allowing it to spread in Nigeria, which has a decrepit health infrastructure, would lead to a catastrophic death toll.

But is this a good enough reason to approve the states’ directives even if the states do not have the powers to issue them? What does Nigeria’s constitution provide for during emergencies and pandemics when we cannot wait for the entire process of lawmaking before taking the urgent actions that are required?

The constitution empowers the president to issue a proclamation of a state of emergency in the federation or any part of it at certain times or during certain situations as prescribed therein. Although it is not expressly stated in the constitution, the invocation of a state of emergency is to justify the departure from or suspension of certain democratic ideals to the effect that it fundamentally affects the full enjoyment of the fundamental rights of the citizens as otherwise guaranteed by the constitution.

Section 305 of the 1999 Constitution empowers the president to issue a proclamation of a state of emergency only in prescribed situations, including when the federation is at war or is in imminent danger of invasion or involvement in a state of war. The proclamation can also be issued where there is actual breakdown of public order and public safety in the federation or any part of it or where there is a clear and present danger of such breakdown, requiring extraordinary measures to avert such danger. If there is an occurrence or imminent danger of the occurrence of any disaster or natural calamity affecting the community or a section of the community in the federation, such a proclamation can also be given.

Furthermore, where there is any public danger, which clearly constitutes a threat to the existence of the federation; or where the president receives a request to do so by the governor of a state, the constitution allows for a proclamation to be issued.

The constitution does not empower a governor to make a proclamation of a state of emergency. The governor may, with the sanction of a resolution supported by a two-thirds majority of the House of Assembly, request the president to issue a state of emergency in the state in question. This request for a proclamation of a state of emergency in a state can be made when necessary as prescribed above, except when it relates to war or invasion of the federation.

The president shall not issue a proclamation of a state of emergency with respect to a state unless the state fails to make the request within a reasonable time. There is, however, no stipulation in the law as to what constitutes ‘reasonable time.’

As at the time of writing this article, there was no report of either a request for or a proclamation of a state of emergency in the country or in a state regarding the COVID-19 pandemic. On what basis, therefore, have state governments issued their directives on the restriction of public gatherings? The logic and necessity of the directives in order to contain the virus cannot be questioned; are they, nevertheless, legal and enforceable? Fortunately, yes.

The Quarantine Act of 1926 is a law that provides for and regulates the imposition of quarantine and makes provisions for preventing the introduction and spread of dangerous infections within Nigeria as well as the transmission of such infections from Nigeria. Dangerous infections in the Act means “cholera, plague, yellow fever, smallpox and typhus.” They also include other diseases of an infectious or contagious nature as may be determined within the meaning of the Act by the president.

Like the constitutional provisions for a state of emergency, the president, under the Quarantine Act, has the power to make regulations to prescribe the steps to be taken to prevent the spread of any infectious disease within Nigeria. The president is also empowered to prescribe the powers and duties of officers charged with carrying out the regulations. He or she can also fix the fees and charges to be paid for anything done under the regulations. The president is also in charge of generally carrying out the purpose of the Act.

This Act, however, empowers the state governor, where the president does not make a declaration proclaiming a disease as a dangerous infectious disease or fails to make the necessary regulations to be followed by the state. Under such a scenario, the governor makes the declaration and regulations with respect to enforcing a quarantine in the state. Pursuant to the Act, Governor Nyesom Wike of Rivers State made a declaration on March 19 captioned thus: “Coronavirus (COVID – 19) is declared to be a dangerous infectious disease within the meaning of the Act.” He also, pursuant to the Act, made regulations required to deal with the virus.

The Act criminalizes disobedience to any of the provisions of the regulations made. From the foregoing, the Faith Okafor situation mentioned above cannot be compared to the COVID-19 pandemic. With regard to any reservations one may have as to the constitutionality of the regulations restricting movement, public gatherings and the shuttering of some businesses made in accordance with the Act, it is important to state that fundamental rights are hardly absolute.

Section 45 of the constitution provides that nothing in the provisions governing some of the fundamental rights, including the right to freedom of movement, 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; or for the purpose of protecting the rights and freedoms of other persons. There can be no doubt that any regulation or directive, which restricts movement in order to curb the spread of coronavirus, falls within this exemption.

The state governors can, therefore, take advantage of the Quarantine Act to make the necessary declarations and regulations; and also take the necessary precautions, depending on the circumstances of their citizens. A question then arises: What if the situation were not a public health crisis (which the Quarantine Act has adequately covered) but, nevertheless, required urgent executive control or directive at the state level?

In the early days when Nigeria reported fewer than 10 cases of the coronavirus, there was another type of tragedy in Lagos. A gas explosion in the Abule Ado area of Lagos on March 15 killed 15 people and destroyed several buildings. Assuming dangerous chemical substances were released following the explosion and the government was compelled to restrict movement within the state until the situation was contained, would it be wise or unwise to await the decision of the president under that circumstance? What if the president doesn’t declare a state of emergency as requested?   

Under the Nigerian constitution, state governors are vested with executive powers. The provision of the constitution requiring governors to request the president’s proclamation of a state of emergency in the states during a crisis leaves much to be desired. From the reading of the constitution, the governors have no further recourse should the president fail to make the proclamation.

The presidential powers of proclaiming a state of emergency are checked by the National Assembly. The Nigerian president is required to transmit copies of the official gazette on the proclamation to the President of the Senate and the Speaker of the House of Representatives. The leaders of the two chambers of the National Assembly are expected to immediately convene a meeting to consider the situation and decide whether or not to pass a resolution approving the proclamation. A proclamation would cease to have effect if it is not approved by a resolution supported by a two-thirds majority of either chamber of the National Assembly. The approval must also be within two days (if the legislature is in session) and ten days (if it is not in session) of the proclamation.

There is no reason a similar framework should not be in place at the state level. However, the legislation on ‘quarantine’ is on the exclusive legislative list. Hence, houses of assembly cannot legislate on same.   

COVID-19 presents an unusual challenge to the world. One of the many lessons Nigeria can learn from the crisis is how important it is to devolve powers to the states. The responses to the challenge, some of which are globally collective efforts, must be decisive, urgent and swift. The current challenge also calls for indigenous solutions. The governor of a state should be able to take urgent and decisive actions to protect the residents without being hampered by federal bureaucratic processes.