1. Introduction

There is no doubt that the COVID-19 pandemic presents a grave  challenge to public  health that any meaningful government would not leave any stone unturned to prevent, control and contain its spread and eventual annihilation. Thus, it was a great relief to the citizenry when the government announced the closure of international flight from Nigeria to some named COVID-19 ravaged countries and vice versa.  Shortly, after that closure, the President on 30th march, 2020 took another decisive step by announcing some drastic government measures in the fight against the pandemic, including particularly the total lock down of Abuja, Lagos and Ogun state. That of  Ogun state was later relaxed with the permission of the President.

With the restriction of movement in few states  of the federation by the president, the legal space was  awashed with commentaries and opinions on the legality or otherwise of government action considering the extant laws, particularly the constitution of the federal republic of Nigeria, 1999, as amended and the Quarantine Act, Cap. Q2, Laws of the Federation of Nigeria, 2004.

However, in what appeared to be a response to the question of the legality of government actions, the President issued the COVID-19 Regulations, 2020.

No. 1. The Lagos state government on its part on the 27th of March, 2020 issued the Lagos State Infectious Diseases (Emergency & Prevention) Regulations, 2020. Later, after the  expiration of the first 14 days of lockdown in Lagos, Abuja and Ogun state, the President issued the COVID-19 Regulations, 2020.

No. 2. which extended the lockdown for another 14 days.

The COVID-19 Regulations 2020, No. 3 followed on 27th April, 2020 extending the lockdown to 4th May, 2020.   Several other State governments have also issued one form of Regulations or the other in the efforts to prevent, control and contain the pandemic in their states.

The total lockdown of Abuja, Lagos and Ogun State has been enforced for about one month with several other States imposing one form of lockdown or the other.

These measures have left grave impact on the citizenry including the canonization of hunger and starvation among greater percentage to Nigerians whose livelihood depend on day to day enterprise, loss of lives in the hands of security agencies and even being convicted by mobile court among others.

It is  against the above background  that it has become necessary to undertake a technical re-assessment of the policies and regulations by government  in the  fight against the  pandemic .

This legal introspection is further justified by the universal principle  that any government action that has implication for the life , limb, liberty or legitimate expectation of the citizen must be in accordance with the law of the land.

  1. Different Measures adopted by Government in the Fight against COVID-19 Pandemic and the Rights of Citizens Affected.

In order to meet with the public health challenges of the COVID -19 pandemic, government of both federal and state levels have adopted and implemented different measures and strategies. The  following measures and corresponding rights of citizens affected may be identified:

2.1 Compulsory Testing, Isolation and Treatment in Named Isolation Centres.

Due to the high risk of infection of members of the public by a potential COVID-19 patient a person who shows the symptoms of the disease is not given the choice of whether to give his consent to the test or not. As a matter of fact, once the state of health of a potential patient is brought to the knowledge of the PTF and the NCDC, the person’s  sample is collected and upon confirmation of his testing positive, he is whisked  to an Isolation and  Centre for isolation and treatment. The result is that the patient is not given the opportunity to decide whether to run the test or not, whether to be treated at home or not and which hospital or Isolation Centre he would be treated.

Each of these three steps taken against a potential patient or such a patient is contrary to the fundamental principle of the right of the patient to autonomy and self-determination.

The law is that a patient’s   right to the autonomy of his person and his interest in the integrity of his body is fundamental and inalienable. As such only him and him alone has the  right to determine what happens to his body. This law finds a firm expression in the principle that “ a doctor must not treat or even touch a patient without  the patients valid consent and that any competent person may refuse to accept medical attention however foolish he may be in doing so, even if he dies as a result.” ( Abugu, U: Principles of Medical Law and Ethics, Abuja, Pagelink Nigeria Limited; 2018) P. 39).

Jones appears to be more emphatic in this rendition of  this legal principle. Accoridng to him:

As a general rule, patients cannot be required to accept treatment that they do  not  want no matter how painless, beneficial and risk free the treatment maybe and no matter how  dire the consequence of refusal of treatment. This proposition is recognized as both an ethical and a legal rule, and is founded, ultimately on the principle of respect for the patient’s autonomy, or expressed in a more compelling term, on the patient’s right to self-determination (Jones, M.A; Medical Negligence (London, Suncet and Maxwell, 1996) P. 253

Rule 19 of the Code of Medical Ethics in Nigeria, 2008 provides that “an essential element of good medical practice is the recognition by the attending physician or dental surgeon, of the inherent right o fthe patient to his own body and life. Also, in the English case of Sidaway v. Board of Governors, Bethlem Royal Hospital (1985) 1 ALLER 643 HL, (1985) 1AC 871), Lord Scarman declared that “ the court should not allow medical opinions on what is best for the patient to override the patient’s  right to decide for himself whether he will submit to treatment offered him.” (cited in Abugu, op.cit, p. 179)

Similarly, the fact that the patient has no opportunity to choose his own doctor or the medical facility he is to be treated is an affront on his right to self-determination. The Lisbon Declaration on the Rights of Patients adopted by the 34th  World Medical Assembly, Lisbon, Portugal in September/October, 1981 provides that: “ the patient has the right to choose his physician freely” and that “the patient has the right to accept or refuse treatment after receiving adequate information.

The patient’s right to accept or refuse treatment is further expressed in the patient’s right to discontinue treatment even against the doctor’s advice. Surely, a patient that is held in an Isolation Centre cannot enjoy such luxury. He can only leave the Centre after he has been certified to have tested negative to the disease. Rule 20 of the Code of Medical Ethics in Nigeria 2008 states that:

[p]atients who are not in a defective state of judgement or in their stead, their competent relatives may be at liberty to terminate service against medical advice upon a formal undertaking to that effect, but such services should be restored without prejudice if they return for help.

2.2     Sit-at-Home Order and Social Distancing

A settled approach to containment of the spread of the COVID-19 pandemic is the observation of social distancing and restriction of the movement of the citizenry. Much as these are a universal principle in the containment of the pandemic, they have implications on the citizens’ fundamental right to freedom of movement, right  freedom of assembly and associations and freedom of religion. (See Sections 38, 40 and 41 of the Constitution of the Federal Republic of Nigeria, 1999, as amended). These rights which stand at the pinnacle of all the hierarchy of rights are declared to be fundamental because they are consistent with our inherent nature as human beings and to deny them is to relegate humans to the status of ordinary animals without spirit and discretion. As such it is universally accepted that the rights are not conferred on the citizens by the government or the constitution, but rather their protection, preservation and atonement are  the  raison detre and first imperative of any government.

The Constitution in its wisdom recognizes that fundamental rights are not absolute right. They may be  derogated from in deference   to the rights of other citizen or for overriding public interest. Thus, Section 45 (1) of the Constitution provides that:

Nothing is sections 37,38,39,40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society:

(a). in the interest of defence, public safety, public order, public morality or public health; or

(b). for the purpose of protecting the right and freedom of other persons.

(The rights affected here are right to private and family life, right to freedom of thought, conscience and religion, freedom of expression and press, right to peaceful assembly and association and right to freedom of movement)

By implication the only reason to justify any infringement of this right would be that such derogation is clearly set out in a law that is justifiable in a democratic society. Section 45(2) of the Constitution provide for the derogation from right to life or right to personal liberty by an Act of National Assembly made in times of emergency provided that such law is reasonably justifiable for the purpose of dealing with the situation that exists during that period of  emergency.

2.3 Enforcement of Sit-at-Home Order by the Security Agencies.

In order to enforce compliance with the rule of social distancing and sit–at – home order, the government at both state and federal level have engaged the security agencies. The use of security agencies to enforce both measures has resulted in several breach of the rights of the citizens ranging from arrest, detention, assault, bodily harm and death in several occasions. It may  be emphasized that under section 35 of the Constitution, the fundamental right to personal liberty of individuals is entrenched and it is only on commission of a crime or in execution of a court order may such  liberty be justifiably restrained. We may have to search for the law creating  such offences or order of courts giving effect to such arrest, detention, assault, bodily harm and killing of citizens to support the actions of the security agencies, otherwise they fly in the face of the fundamental rights of such citizens.

2.4 Trial and Conviction by Mobile Courts

A mobile court is a special court that sits in an unconventional place for the purpose of enforcing the provisions of statutes which infraction is of grave public concern or of a special concern to the security agency or any agency having power to enforce the statute. A mobile court is a court properly so called in that in law the court is not the court building but rather the judicial officer who has been properly appointed and has taken the oath of office. Once these conditions are fulfilled, it does not really matter where such an officer sits provided that he possesses both the territorial jurisdiction and jurisdiction over the offence or offences being tried.

As part of the enforcement of the sit- at -home order, some States particularly the Federal Capital Territory, Abuja and Lagos and Kano have set up mobile courts which have been trying perceived violators of the orders. In the process thousands of citizens have been convicted and sentenced to varying terms of punishment ranging from fines to community service.

The question is whether the Federal or State governments have created offences that conferring on the mobile courts the jurisdiction to act in such circumstances.

This question is pertinent in view of the overriding provisions of section 36(12) of the Constitution to the effect that “a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor prescribed in a written law.” The subsection defines a written law as an Act of the National Assembly or a law of a state, any subsidiary legislation or instrument under the provisions of a law. Again section 36(8) is emphatic that “no person shall be held to be  guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such offence……”

2.5  Ban on and Closure of Private Hospitals.

In order to ensure the provision of competent care use of modern facilities and good coordination  of the fight against the COVID-19 Pandemic both federal and state government have barred private hospital from handling such cases unless such private hospital are  duly accredited for that purpose. As a consequence, many private hospitals have been shut down especially in Lagos for illegal handling COVID-19 cases.

There is no doubt that unless such ban or closure is justifiable in law, they infringe on the professional practice rights of such hospitals. Under sections 14, 17 and 18 of the Medical and Dental Practitioners Act, ( Cap. M8, Laws of the Federation of Nigeria, 2004,) the condition precedence to the practice of Medicine in Nigeria is registration by the Medical and Dental council of Nigeria and the payment of the requisite annual practicing fee. And upon such registration, a practitioner has a right of practice throughout Nigeria. This fundamental requirement for registration and payment of practicing fee is further reinforced  under Rule 6 of the Code Medical Ethics in Nigeria, 2008.

It must be noted that there are other legal requirements for registration and certification of the hospitals under the relevant legislation and by relevant government ministries and agencies but once these basic requirements are met, it must take a clear provision of the law to bar a practitioner form practice or to close down his hospital.

  1. Are these Measures and Restraints Authorized by Law?

As a result of the far reaching implications of government measurer on the right of the people, it is necessary to consider the Law under which  governments derive their powers to institute and implement such measures. The following laws are considered.

3.1 Quarantine  Act , Cap. Q2, Laws of the Federation of Nigeria, 2004

The Act appears to be the main source of power being exercised by both the federal and state government in their concerted efforts to contains and successfully fight the COVID-19 Pandemic. A very terse piece of Legislation with only eight sections, the Act came into force on the 27th May, 1926.

The Act empower the President,  and failing the President, the Governor of a State to make Regulations for the purpose of regulating the imposition of quarantine and preventing the introduction into and spread in Nigeria, and transmission from Nigeria , of dangerous infections disease. ( see the preamble to the Act and section 4 thereof)

In order to invoke the provisions of the Act, the President or the governor must meet the following fundamental requirement under the Act:

  1. The disease sought to be controlled must be declared as a “dangerous infectious disease.” Section 2 of the Act defines a “dangerous infection disease” to mean cholera, plague, yellow fever smallpox and typhus, and include 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 the Act.
  2. The place within the country or state in which the act or the regulation made under it is to apply must be specifically be declared “an infected local area. Under section 3 of the Act, the President may by notice declare any place within or outside Nigeria to be an “infected local area” and there upon such place shall be an infected local area within the meaning of the Act. As a prelude to the declaration of an “infected local area”, the President or the governor must first of all identify was is known as a local area which the Act defined as “ a well defined area, such as local government area, a department, a conton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such area.
  3. Any regulations made pursuit  to section 4 of the Act must apply within an “infected local area” so declared by the president or the governor by notice. For avoidance of doubt, section 4 of the Act is set out in extensor:

 Regulations

The President may make regulations for all or nay of the following purposes;

  1. Prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;
  2. Prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place in an infected local area or not;
  3. Preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not,to any other place within Nigeria;
  4. Preventing the transmission of any dangerous infectious disease from place within Nigeria, whether an infected local area or not, to any place without Nigeria
  5. Prescribing the powers and duties of such officers as may be charged with crying out such regulations.
  6. …………………………………………………………
  7. …………………………………………………………

From the clear provisions of section 4 above and section 3 which gives the president the power to declare any place to be “ an infected local area”,  for any Regulations  made by the President or any Governor to have affect in any place in Nigeria without first identifying such a place as “ infected local area” by declaration is against the letters and spirit of the Act and cannot have effect on any such place. Any enforcement of the Regulations on any undeclared place flies in the face of rule of law and infringe on the constitutional and legal rights of such people.

This point must be emphasized because  any such Regulations is a subsidiary  legislation which by  law must comply in all material  particular with the procedure, content and ambit provided and allowable by the parent or principal legislation.

  1. The Quarantine Act itself is not self-executory in the sense that it only makes provision conferring some powers on the President or the Governor

(as the case may be) without more. These are power to:

  1. Declare a disease as a “dangerous infection disease”
  2. Define a particular area as a local area;
  • Declare an area as “an infected local area”; and
  1. Make Regulations to control the dangerous infectious disease within a defined and declared “infected local area.”

To further confirm the non-self executory nature of the Act, it made provisions for penalty or punishment leaving the offences to be created by regulations made thereunder.  Section 5 provides that “ any person contravening any of  the Regulations made under  this Act shall be liable to a fine of N200 or to imprisonment  for a term two months or both.

3.2     Federal Government COVID-19 Regulations 2020  Nos. 1,2, & 3

Pursuant to the powers conferred on him under the Quarantive Act, the President has made three different COVID-19 Regulation, 2020. They were made on the 30th March, 2020, 13th April 2020 and 27th April, 2020 respectively. The procedure nature and character of the Regulations present a very novel dimension to executive law making. The procedures have been for the President to make a national broadcast on measures against the COVID-19 pandemic and for the same text of the broadcast to be renamed a COVID-19 Regulations without adopting any legislative drafting style. The result is that apart from the preamble which identified the powers under which the Regulations were made and which declared COVID-19 as “a dangerous infections disease” as required by section 2 of the Act, the rest of the Regulations are the President’s national broadcast rendered in first persons singulars and plurals. One finds in the Regulation, such expression as:

“We will use this containment period to…”;

“We are fully aware …”

“I have also directed…” this is why I directed…”;

“I want to assure you all…”

“I will take this opportunity to thank …” etc.

To say the least, the three COVID-19 Regulations 2020 are a celebration of a parody of executive law making and a travesty of legislative draftsmanship.

3.2.1 Summary of Contents of the Regulations

The summary of the contents of the Regulations is as follows:

  1. Restriction/cessation of movement in Lagos, FCT and Ogun States for initial period of 14 days with effect from 11pm on Monday, 30th March, 2020;
  2. Seaports in Lagos to be operational;
  3. Suspension of passenger aircraft, both commercial and private;
  4. need for personal sacrifice;
  5. Relief materials;
  6. Support of the private sector and individuals;
  7. Government committed to fight against the virus;
  8. Extension of lockdown in Lagos, FCT and Ogun State by two weeks from 13th to 27th April 2020; and
  9. Extension of lockdown in Lagos, FCT and Ogun from 27th April to 4th May, 2020.

3.2.2  Substantive Flaws in the Regulations

The following are the observed substantive flaws in the three COVID-19 Regulation:

3.2.2.1        No Defined Local Area.

There was no local areas cleanly identified in the Regulation as required by the Act. It is submitted that it is not enough for the Regulation to mention Lagos, FCT and Ogun State. From the definition of a “local area” under the Act, the largest size of a local area is a local government. We note that all other named or identified possible local areas in the definition are smaller in size than a local government. It is further submitted that by the application of ejusdem generis canon of statutory interpretation the omnibus clause “whatever may be the extent and population of such areas” can only give rise to a local area either equal in size or smaller than a local government area.

3.2.2.2        No inflected Local Area was declared

The President has not declared any place within or outside Nigeria to be an infected local area either by notice or in the Regulations as required under section 3 of the Act. Even through the declaration of a place as an infected local area is discretionary, it is of utmost important here because that is the condition precedent under which the President may make Regulations “prescribing the steps to be taken within Nigeria upon any place” under section 4(a) of the Act. The effect of non- declaration of “an infected local area” by the President is that any step prescribed to be taken upon such places as Abuja, Lagos and Ogun State is irregular, illegal and unsupported by the Quarantive Act. Accordingly, it is submitted that all steps prescribed in the Regulations to be taken upon the residents of Abuja, Lagos and Ogun state such as restriction/cessation of movement, identification, tracing and compulsory isolation of COVID-19 patients, restriction on social,, business and religious activities arrest and detention by security agencies, trial conviction and sentences by mobile courts, etc are not supported by the law.

3.2.2.3        No offences were created

The Regulations did not take any step to create any offence. As earlier pointed out, the Act only prescribed penalty or punishment leaving the offences to be created and defined by the Regulations. Section 36(12) of the Constitution requires that “a persons shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law.”

For ease of reference, Rules 1(1) and 1(2) of the No Defined Local Area. Regulation 2020, No. 1 are reproduced below:

  • Based on the advice of the Federal Ministry of Health and the NCDC, I am directing the cessation of all movements in Lagos and the FCT for an initial period of 14 days with effect from 11pm on Monday, 30th march, 2020. This restriction will also apply to Ogun State due to its close proximity to Lagos and the high traffic between the two states.
  • All citizens in these are to stay in their homes. Travel to or from other states should be postponed. All businesses witnesses and offices within these locations should be fully closed during this period

It is submitted that the above provisions may qualify as a presidential directive or command but never created any offence. An offence which has the implication of affecting the fundamental rights of a person including his personal liberty, freedom of movement, freedom of religion or economic enterprise should not be left to conjecture. This appears to be the reason why the Constitution insists that the offence must be “defined”.  From the above provisions we are left to group in the dark as what the offence would be and citizens are not given notice that disobedience to the directives has penal consequences.  A simple drafting technique at the end of the restrictions or even at the end of the Regulations would have solved the problem. For instance “Any person who contravenes any of the provisions of this Regulation commits any offence punishable under section 5 of the Quarantine Act” A provision of this nature would leave no one in doubt that there are consequences in contravening the presidential directives.  It also has the importance of supplying a nexus between the offence and the punishment.

By implication since security agencies, especially policemen can only arrest a person committing a crime in their presence or on  reasonable suspicion of having committed a crime all the arrests, detention, assault, causing grievous harm and even death caused by the police in pursuance of the Presidents restriction of movement were not supported by any law. The same conclusion applies to all the trials, conviction and sentence undertaker and imposed by the mobile courts especially in FCT.

3.2.2.4        Restrictions on movement applies to citizens only

By Rule 1(2) of the Covil-19 Regulation, 2020, the restriction of movement applies to citizens only. This provision is very curious considering the fact that COVID-19 pandemic is not a native of Nigeria,  but a foreign disease and so non-citizens in the affected areas should even be more restricted than citizens.  

          It is submitted that with the above fundamental flaws in the three Federal COVID-19 Regulations, they do not represent in character and contents of the regulations envisaged by the parent or enabling statute, the Quarantine Act: the law is that:

Where the parent Act indicates the content of a delegated legislation to be made under it, such delegated legislation will be invalid if the content is not as required by the parent Act or is repugnant to it.

( Danladi, K.M: outline of Administrative Law and Practice in Nigeria, (Zaria, Ahmadu Bello University Press Limited, 2012) P.104. See also Hodge v. Hodge (1963) ALLER 358; Akaza v.Commissioner of Police, Benue Plateau State & Ors. Suit No. JD/106/74, (Unreported)

Accordingly, the three federal COVID-19 Regulations are substantively ultra vire  and cannot supply the legal basis for all the measures, restriction and punishments so far imposed on the residents of Abuja, Lagos and Ogun State in the fight against the COVID-19 pandemic

3.3     COVID-19 Regulations by State Government

In the wake of the COVID-19 Pandemic in Nigeria, many State governments have taken proactive steps in curtailing the spread of the pandemic into their territories. Part of the steps so far taken by some State government is the making of Regulations to give legal backing to the measures being put in place in the fight against the pandemic.

The Quarantine Act in its window has given the Governor of any State similar power to make Regulations as the President where the Regulations made by the President did not extend to the State. Under Section 6 of the Act, the power should be exercised “as fully as such power may be exercised by the President, and subject to the same conditions and limitations”. In other words any Regulations made by the Governors Pursuit to the Act must satisfy all the conditions prescribed for a Regulations made by the President including:

  1. Declaration of a dangerous infections disease
  2. Defining a local area
  3. Declaration of an infected local area
  4. Create offences to support the punishment already created under section 5 of the Act.

The most audacious and ambitious of all the State COVID-19 Regulations is the Lagos State Infectious Disease (Emergency Prevention) Regulations 2020. The Regulations is an elegant piece of legislation complying in all materials particular with the general principles of legislative drafting.

3.3.1. Major Provisions of the Regulations

The Regulation has the following salient provisions:

  1. A good preamble running into 11 paragraph,
  2. Citation, commencement and application; (S.1)
  3. Definition of terms including the definition of coronavirus, dangerous infectious disease and, infected area; (S.2)
  4. Declaration of local area; (S.4)
  5. Declaration COVID-19 as dangerous infections disease (S.5)
  6. Power over potentially infections persons; (S.6)
  7. Restriction of movement where the governor is given power to direct the restriction of movement within, into or out of the local area; (S.7)
  8. Power relating to events, gathering and premises including powers of security agents enforce same; (S.8)
  9. Power over conduct of trade and commercial activities (S.9)
  10. Closure of public, educational, vocational institution within the local area; (S.10)
  11. Transportation, storage and disposal of the remains of persons infected with COVID-19;(S.12)
  12. Omnibus provisions including power to deploy law enforcement officers to enforce directives and power to construct and allocate spaces for construction of isolation centres;(S.15)
  13. Exercise of powers of the Governor under the Regulations which may be directly or through designated persons and exercisable by way of an oral or written declaration, notices, or any medium as the Governor may deem necessary; (S.16)
  14. Offences which covers failure to comply with any restriction under the Regulation, obstruction any persons carrying out his duty under the Regulation or acting contrary to any provisions of the Regulations. The section also links the offences to the punishment under the Quarantine Act (section 17.)

3.3.2 Major Flaws in the Regulations

The major flaw in the Regulation is that it concentrates all measures, restrictions and steps to be taken upon “local area” instead of a “local infected area” as required under Section 3 and 4 of the Quarantine Act. It may be noted that the only justification for restriction of movement, public gathering, businesses, etc would be if an area is already identified as a “local infected area”. It does not make any sense impose all those measures in just a local area not yet declared as a “local infected area”. The Regulations came into effect on the 27th March, 2020, exactly one month after the Italian index case was identified and isolated in Lagos on the 27th of February, 2020. What this translates to is that as at the time the Regulation came into effect there is already COVID-19 infection in Lagos thus justifying the imposition of restrictions and other measures.  But the Regulations failed to declare and identify any “local infected area”. Rather the whole weight of the Regulations was placed on “local area” which means areas not yet affected by the pandemic.

Another grave infelicity in the Regulation is that instead of declaring  a “local infected area” within Nigeria, the Regulation only defined “infected area” in relation to country, territory or other area outside Lagos. Meanwhile all measures or steps to be taken over any place within  Nigeria must, under section 4(a) of the Act, be taken upon an “infected local area” already declared under section 3 of the Act.

Again, the Act never required the definition or declaration of an “infected area”. The omission of the declaration of “local infected area” means that no place has been identified in Lagos for the purpose of “prescribing the steps to be taken within Nigeria (Lagos) upon any place… being declared to be an infected local area.” (section 4(a) of the Act).

The implication of the foregoing is that being a subsidiary legislation which must comply in all material particular with the requirements of the enabling statute, the Regulations cannot legally be adjudged as the source of power for the imposition and of all the restrictions and measures now imposed and enforced on the residents of Lagos state.

  1. Conclusion

We have taken the pains to analyze the provisions of the relevant statutes in the search for the legal justifications for the so many restrictions imposed on the constitutional and other legal rights of persons particularly in Abuja , Lagos and Ogun State. The reason for the search is simply because there is no situation that is so dire, emergent or crucial as to oust the application of the rule of law. Even under the state of emergency and times of war the actions and inactions of the President or the belligerents must be founded on the appropriate law that governs the situations. The immortal words of Lord Atkins in the case of Liversidge v. Anderson (1942) AC 206 at 244 reverberates here like a thunder: “In this country, amid clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace”.

Accordingly any act of any person or authority which has effect of limiting the exercise or enjoyment of the constitutional or legal rights of any person must find support in a law properly made.

The special case of COVID-19 Pandemic in Nigeria is that the major laws of regulate all the steps, measures, restrictions and enforcement of such measures must be by subsidiary legislation (Regulations)  made pursuant to the Quarantine Act. The Act itself has not left any person in doubt about the nature and contents of such subsidiary legislation and any derogation from the tailor-made contents prescribed by the Act can only qualify as an exercise in futility.

Our analysis has shown that both the Covil-19 Regulations 2020, Nos. 1, 2 & 3 made by the President and the Lagos State Infectious Disease (Emergency Prevention) Regulations,  2020 are tainted by some inherent  vices that take them away from that intended by their enabling statute. As such neither can be legally applied to restrict, curtail or impose duties or liabilities upon persons in Abuja, Lagos or Ogun State in furtherance of the fight against the Covil-19 pandemic in Nigeria.

Written By Prof. Uwakwe Abugu, uwakwe.abugu@uniabuja.edu.ng
Faculty of Law, University of Abuja and President, Lifeline Centre for Medical and Health Rights Advocacy (LICMEHRA)

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