Daily Law Tips (Tip 558) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
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CAN “NCDC” MAKE REGULATIONS FOR NIGERIA?
Nigeria Center for Disease Control and Prevention (NCDC) is a federal government agency with headquarters on Abuja. Among it’s functions is to prevent and combat infectious diseases in Nigeria. In this season of Coronavirus (COVID-19), NCDC has become popular. Some gaps where left by the President of Nigeria, in the Federal Government’s COVID-19 Regulations for the NCDC and the Presidential Task Force on COVID-19 to fill. NCDC has issued several guidelines and protocols for fighting COVID-19. The guidelines and protocols lack force of law, they are not mandatory and have no punishments/sanctions. Hence, one wonders if NCDC has powers to make “Regulations” that will have the force of law and sanctions as well as be compulsory across Nigeria to ensure strict compliance.
It is the duty of government to protect Nigeria and maintain public peace and order. However, government must achieve the above with respect for human rights. For prevention and management of dangerous infectious diseases, like COVID-19, Nigeria needs coalition of stakeholders and very robust relevant Laws and Regulations. The laws and regulations will ensure that health safety guidelines are made mandatory with punishments. This will encourage compliance, fight COVID-19 and avoid human rights violations. One of the stakeholders in the fight against COVID-19 is the NCDC. NCDC has access, information, strategy, data, technically know-how and statutory powers to win the fight against COVID-19.
First of all, there is need to understand the place of Guidelines, Regulations and Laws in Nigeria. They are not the same and as such have varying powers. Note, Laws in Nigeria are made by the National Assembly for the entire country while Houses of Assembly in the 36 states of Nigeria make laws for their respective states. Federal Laws and State Laws often delegate some law-making powers to executive government for efficient implementation of laws. In exercise of delegated law-making powers (quasi-legislative powers), the executive arms of government (like, the President, Federal Ministers, Heads of Federal Parastatals, Governors, State Commissioners and Heads of State Parastatals) make Executive Orders, Regulations and Rules for effective and efficient implementation of existing laws. Consequently, written Executive Orders, Regulations or Rules legally made by an executive government are binding Law. All laws and regulations must be inline with the constitution of Nigeria or it will be nullified and dead on arrival.
Guidelines and protocols are not Regulations. Policy Guidelines like the NCDC Guidelines and Protocols are not laws or Regulations. Such guidelines and protocols have no force of law and as such no person can be arrested or charged for any offence under them. The apex court in Nigeria (Supreme Court of Nigeria) has warned that policy guidelines of government are not laws. When government is serious with a policy guideline and wants the force of law and compliance, it will turn its policy guideline into a Regulation. In this period, the relevant Laws and Regulations on COVID-19, includes; the Quarantine Act, the COVID-19 Regulations, Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 and other similar state regulations.
By the law that created NCDC, the NCDC has powers to MAKE REGULATIONS and issue guidelines to protect Nigerians from the impact of communicable diseases of public health importance like COVID-19. However, NCDC can only exercise such powers with the approval of the federal Minister for Health. Furthermore, the federal Minister for Health can also own his own give directives to the board of the NCDC to make necessary Regulations. So, NCDC can make regulations to ensure Nigerians comply to their health guidelines and protocols or be punished. Regulations of NCDC will cover and operate in all states in Nigeria, it is a federal regulation. This will certainly help in the fight against COVID-19 across Nigeria.
The writer is not unaware of COVID-19 pandemic and governments interventions to end it. The security and welfare of the good people of Nigeria are the primary purpose of government. However government must be lawful and law abiding in achieving such purpose. It is advised that constitutional procedures and statutory processes should be engaged at all times to avoid causing more problems in attempting to solve one. We must conquer COVID-19 without violating fundamental human rights of Nigerians even where such rights may be restricted. Stay at Home and Stay Healthy!
My authorities are:
1. Sections 1, 4(3), 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 305, of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act of 1926.
3. Sections 1, 3, 4, 24, 25, 27 and 28 of the Nigeria Center for Disease Control and Prevention (Establishment) Act, 2018.
4. Sections 12, 17, 18 and 39 of the Interpretation Act, 1964.
5. Provisions of the COVID-19 Regulations 2020.
6. Regulations 1, 2, 3, 4, 5, 7 and 8 of the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020
7. Sections 53 and 58 of the Lagos State Public Health Law, Cap Ch. P16, Laws of Lagos State 2015.
8. The Supreme Court judgment on “Meaning of Regulation” in the case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006) LPELR-3161(SC)
9. The Court of Appeal judgment on “Meaning of Executive Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
10. The Supreme Court judgment on “Policy Documents/Guidelines” in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
11. The Supreme Court judgment on “Policy Documents/Guidelines” in the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.
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