Constitutionality Of Actions Of Government On COVID-19 By Ugochukwu Eze

Introduction

On 30 January 2020, the World Health Organization (“WHO”) declared the outbreak of coronavirus disease “a public health emergency of international concern and on 11 February 2020 gave it the name ‘COVID-19’. The first case of COVID-19 was detected in Nigeria on 27 February 2020. Consequently, the various tiers of government, in a bid to contain the spread of the disease came up with several directives, regulations, orders and legislations.  This paper examines the legality of some of these directives and regulations as well as the actions of some government agencies in enforcing them and juxtaposes them with relevant constitutional and statutory provisions.

The Regulations

The first case of COVID-19 in Nigeria was identified in Ogun State and brought to the densely populated Lagos State to be quarantined and treated. According to available data; Lagos has the highest number of confirmed cases of COVID-19. Thus, it was not surprising that the Lagos State government devised measures to reduce or possibly prevent the spread of the disease. First, on 18 March 2020, the Governor of Lagos State announced certain control measures which include: prohibition of gathering of more than 50 persons (subsequently reduced to 20 persons), closure of bars, clubs, etc.

However, on 27 March 2020, the Governor of Lagos State, “in exercise of the plenitude of powers” conferred on him by the Lagos State Public Health Law Cap. P16, Laws of Lagos State 2015 and in particular by section 8 of the Quarantine Act, Cap. Q2, Laws of the Federation of Nigeria 2004, as well as pursuant to other enabling laws and powers in that regard, made the ‘Lagos State Infectious Disease (Emergency Prevention) Regulations 2020’ (“the Lagos Regulations”). The Lagos Regulations ratified all acts done prior to its commencement to curtail the spread of the disease and designated all local government areas, all roads, bridges, and pathways, all land, sea and all entry points into Lagos State as local areas. The said regulation also empowers the Governor to direct the restriction of the movement of persons within, into and out of any local area save for transportation necessary for the supply of essential services as well as essential services personnel. The Governor is also empowered to restrict or prohibit the gathering of persons for conferences, meetings, festivals, private events, religious services, public visits and other events in the local area. Accordingly, any person who fails to comply with any restriction, prohibition or requirement imposed under the Lagos Regulation shall be liable under the Quarantine Act, Public Health Act and any other existing law to fine or imprisonment or both fine and imprisonment in accordance with existing laws.

Conversely, on 30 March 2020, President Muhammadu Buhari, in exercise of the powers conferred on him by the sections 2, 3 and 4 of the Quarantine Act and all other powers enabling him in that behalf made the COVID-19 Regulations 2020 (the COVID-19 Regulations), directing the cessation of all movements in Lagos, the Federal Capital Territory (“the FCT”) and Ogun State for an initial period of 14 days. This restriction exempts hospitals and other related medical establishments as well as commercial establishments involved in essential supplies like food, petroleum, power generation and private security. Urgent, essential and time bound court matters were also exempted while the financial system and money markets were allowed to run very skeletal operations. Workers of telecommunication companies, pressmen and workers of media houses who can prove that they are unable to work from home were also exempted. It is noteworthy that the COVID-19 Regulations did not create any offence nor did it provide for failure to comply with its provisions.

Interestingly, some other States like Bayelsa, Ekiti, Osun, Rivers, Abia, etc., have by Regulations, Directives and Executive Orders made by the Governors of the States, restricted  the movement of persons within and into the state and in some instances with criminal sanctions for failure of any citizen to comply with such lockdown orders.

Constitutionality of these Regulations and Directives

The provisions of both the Lagos Regulations and the COVID-19 Regulations raise some important constitutional questions. More fascinating is the recent summary conviction of persons for allegedly disobeying the social distancing directives of the Governor of Lagos State. The convictions have agitated legal minds especially in the light of the provisions of the regulation under which they were charged and other relevant constitutional and statutory provisions. The following questions seem to arise in the determination of whether there are constitutional infractions in the COVID-19 containment measures:

• Did the President of the Federal Republic of Nigeria validly exercise his powers in making the COVID-19 Regulation?
• Does the Governor of Lagos State have the power to make the Lagos Regulations in the light of clear constitutional and statutory provisions?
• Is the Regulation made by the Governor of Lagos State still of any effect in view of the COVID-19 Regulation made by the President?
• Can a person be criminally liable for failing to comply with any restriction or prohibition made under the Lagos State Regulations or the COVID-19 Regulations.

Bearing in mind the provisions of section 14(2) (b) of the Constitution of the Federal Republic of Nigeria 1999 as amended (“the Constitution”) which declares that the security and welfare of the people shall be the primary purpose of government, the President invoked his powers under the Quarantine Act to make the COVID-19 Regulations. For the purpose of clarity, the relevant portions of the Quarantine Act are hereby reproduced:

“2. In this Act, unless the context otherwise requires-

“dangerous infectious disease” means cholera, plague, yellow fever, smallpox and typhus, and includes 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 this Act;

3. The President may, by notice, declare any place whether within or without Nigeria to be an infected local area, and thereupon such place shall be an infected local area within the meaning of this Act.
4. The President may make regulations for all or any of the following purposes-

(a)      prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;

(b)     prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place is an infected local area or not;

(c)      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;

(d)     preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;

(e)      prescribing the powers and duties of such officers as may be charged with carrying out such regulations;

(f)      fixing the fees and charges to be paid for any matter or thing to be done under such regulations, and prescribing the persons by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such regulations shall be borne, and the persons from whom any such expenses incurred by the Government may be recovered;

(g)      generally for carrying out the purposes and provisions of this Act.”

In the light of the above, the President by the COVID-19 Regulation declared COVID-19 to be a dangerous infectious disease. Whereas the Act provides that the declaration shall be made by notice. However, contrary to the view of some learned writers in this regard, making this declaration in the regulation instead of a notice as required by the Act does not render the declaration nugatory.  The law is that where a provision is merely directory, substantial compliance will be sufficient. See Ifezue v. Mbadugha (1984) 1 SCNLR 427 and Mekwunye v. Imoukhede (unreported) Suit No. SC/851/2014 delivered on 7 June 2019. Particularly, in Ifezue v. Mbadugha, the Supreme Court, quoting with approval the Article 25 of the Halsbury’s Laws of England (4th Edition) Vol. 1, stated thus:

“The question whether non-compliance with procedural or formal requirements renders nugatory the purported exercise of a statutory power has been in issue in a very large number of reported cases, from which but few principles can be elicited. The normal consequence of non-compliance with the requirements is invalidity. These requirements are, however, classifiable as mandatory or directory; and, where a provision is merely directory, substantial compliance will be sufficient, and in some cases total non-compliance will not affect the validity of the action taken. It is broadly true that such provi­sions will more readily be held to be directory if they relate to the per­formance of a statutory duty, especially if serious public incon­venience would result from holding them to be mandatory, rather than to the exercise of a statutory power affecting individual interests, and that the more severe the potential impact of the exercise of a power on individual interests, the greater is the likelihood of the procedural or formal provisions being held to be mandatory.”

In view of the above the COVID-19 Regulation will be deemed to have fulfilled the requirement of section 2 of the Quarantine Act. However, the regulation did not declare any place as an infected local area as required by section 3 of the Act, Rather, the regulation simply restricted all movements in Lagos and the FCT (save for the persons exempted) based on the advice of the Federal Ministry of Health and the National Centre for Disease Control (“the NCDC”). Some have also argued that having failed to declare any place as an infected local area, the regulation is invalid. However, it is submitted that the authorities on substantial compliance discussed above will also be of help in this regard and in line with the decision of the Supreme Court referred to above, the regulation will be deemed to have also fulfilled the requirement of section 3 of the Act.

Having established that the conditions precedent for the making of regulations under the section 4 of the Act have been substantially fulfilled, it is safe to say that the President validly exercised his powers under the Quarantine Act to make the COVID-19 Regulation.

On the other hand, we recall that the Governor of Lagos State exercised the powers to make the Lagos Regulations under the Public Health Law of Lagos State (no specific section was mentioned) and particularly under section 8 of the Quarantine Act.

With respect to the Public Health Law, sections 43 and 53 of the Public Health Law of Lagos State vests the power to make regulations, in pursuance of the Law, on the Commissioner. Section 69 of the Public Health Law being the interpretation section of the law defines ‘Commissioner’ as “Commissioner for health or any member of the State Executive Council for the time being charged with the responsibility for public health”. It is the law that where a statute provides a particular method of performing a duty regulated by the statute, that method and no other, must have to be adopted. See Co-operative & Commerce Bank Nig. Plc v. A. G. of Anambra State (1992) 8 NWLR (Pt. 261) 528 at 556. Also, the legal maxim, delegatus non potest delegare is often invoked in constitutional or administrative law to declare invalid the exercise of power or the discharge of functions by persons other than those to whom the powers or functions have been entrusted. See Savannah Bank (Nig.) Ltd. v. Ajilo (1989) I NWLR (Pt. 97) 305, Union Bank of Nigeria Plc v. Ayodare & Sons (Nig.) Ltd (2007) 13 NWLR (Pt.1052) 567 and Simeon v. College of Education Ekiadolor Benin (2014) LPELR-23320(CA).

Some commentators are of the view that a commissioner within the meaning of section 69 of the Public Health Law includes the Governor based on the principle of agency, since the Commissioner by virtue of his office acts on behalf of the Governor, thus the act of the agent is in the eyes of the law the act of the principal, and whatever is required to be done by an agent can be done by the principal. While some others are of the view that since the Lagos Regulation relates to the COVID-19 Pandemic being a public health challenge and whereas the Governor of Lagos state has been the leader of the task team or what some refer to as ‘the incident commander’, he can fit into the meaning of “any member of the State Executive Council for the time being charged with the responsibility for public health”.

However, it is submitted that any other member of the executive council would only be able to make the said regulation where the Commissioner for Health is unavailable due to ill health, permanent incapacity, death, resignation or dismissal. Hence, the use of ‘or’ in the definition of ‘Commissioner’ in the Public Health Law. The law is settled that in ordinary usage, the word ‘or’ is disjunctive while ‘and’ is conjunctive. See Ndoma-Egba v. Chukwuogor & Ors (2004) LPELR-1974(SC).

Thus, it is submitted that the phrase, “or any member of the State Executive Council” used in section 69 of the Public Health Law does not mean that any other member of the State Executive Council can undertake that responsibility while a Commissioner for Health is in office, rather the phrase comes in aid where there is a vacancy, that is, where the Commissioner for Health is unavailable.

Thus, it is clear that no provision of the Public Health Law granted the Governor power to make regulations. Little wonder why no section of the Law was referred to by the governor even though he relied on the powers purportedly vested on him by the Law.

On the other hand, Section 8 of the Quarantine Act particularly relied on by the governor provides:

“If and to the extent that any declaration under section 2 or 3 of this has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations may be exercised in respect of a State, by the Governor thereof as fully as such power may be exercised by the President, and subject to the same conditions and limitations.”

Thus, under the above provision, the Governor can make declarations and regulations where no such declaration and/or regulation covering the State has been made by the President.

However, considering that ‘Quarantine’ is contained in item 54 of the Exclusive Legislative List, Part 1 of the Second Schedule to the Constitution and by virtue of section 4(2), (3), (7)(a) of the Constitution, only the National Assembly has the power to legislate on quarantine, the provision of section 8 of the Quarantine Act is unconstitutional. See Olubukola Saraki v. F.R.N. [2016] 3 NWLR (Pt. 1500) SC 531. In the same vein, any power exercised by the Governor under the said section is void and of no effect. In this regard, the Governor cannot rely on the Quarantine Act to make the Lagos Regulations.

Assuming but not conceding that the Governor exercised valid powers under the Quarantine Act, it is noteworthy that the Lagos Regulations was made on the 27 March 2020, that is, three (3) days before the COVID-19 Regulation was made by the President. It is submitted that the Lagos Regulation ceased to have effect and is impliedly repealed from the day the President made the COVID-19 Regulations since the subsequent regulation made by the President, which covers the State in question, overrides the regulation made by the Governor. This is in line with the decision in A. G. Ogun State v. A. G. Federation (1982) 1-2 S.C. (Reprint) 7, where the original jurisdiction of the Supreme Court was invoked to examine the validity and limits of the Public Order Act made by the Federal Government as it affects the States where a Public Order Law already exist. The Supreme Court after considering relevant provisions of the Constitution held that:

“It is, of course, settled law, based on the doctrine of covering the field with which I shall deal in more detail later, that if Parliament enacts a law in respect of any matter in which both Parliament and a Regional legislature are empowered to make laws, and a Regional legislature enacts an identical law on the same subject matter, the law made by Parliament shall prevail. That made by the Regional legislature shall become irrelevant and therefore, impliedly repealed.”

Thus, in view of the above, the Lagos Regulation has ceased to have effect from the time the President made the COVID-19 Regulations.

In view of the foregoing, the Public Health Law of Lagos State did not give the Governor of Lagos State the ‘plenitude of powers’ he purported to have exercised in making the Lagos Regulation. The only power validly exercised by the Governor in this regard is the power granted under the section 8 of the Quarantine Act to make regulations where none has been made by the President. In any case, whatever regulation that was made in exercise of the latter ceases to have effect on 30 March 2020 upon the signing of the COVID-19 Regulations by the President.

Consequently, it is unconstitutional to arrest, prosecute and/or convict anybody for failing to comply with the Lagos Regulation or any directive made under it, in so far the act constituting such failure to comply was done after 30 March 2020 when the Lagos Regulations has ceased to have effect.

Assuming but not conceding that the COVID-19 Regulations did not impliedly repeal the Lagos Regulation or that the Lagos Regulation was validly made under the Public Health Law of Lagos State, it is submitted that the Lagos Regulations has no effect nevertheless, in view of section 1(1) of the Regulations Approval Law, Cap. R4, Laws of Lagos State 2015 (“the Regulations Law”) which provides as follows:

“Notwithstanding any provision to the contrary in any Law in the State, no regulation shall have effect unless laid before and approved by the House of Assembly.”

Moreover, section 3 of the Regulations Law further provides that:

“All regulations made pursuant to the provisions of any enactment in the State shall be published in the Official Gazette after its approval by the House of Assembly. “

Thus, the Lagos Regulations is yet to take effect since it has not been approved by the Lagos State House of Assembly. In the circumstance, no conviction can be based on it.

More interesting is the fact that some persons have been arrested, prosecuted and summarily convicted for failing to comply with the social distancing directives of the Governor of Lagos State purportedly made under the Lagos Regulations. In any event, the Lagos Regulation does not restrict the movement of persons; rather it gives the Governor the power to direct the restriction of movement. The law is trite that a person cannot be convicted for an offence created by a directive. Thus, in Faith Okafor v. Lagos State Government [2017] 4 NWLR (Pt. 1556) 404 at 442, the Court of Appeal considered the provisions of section 4 of the Environmental Sanitation Agency Law of Lagos State which states that sanitation officers are to carry out any other duties as may be directed by the Governor and held as follows:

“Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 provides that a person shall not be convicted of a criminal offence unless the offence is defined and the penalty prescribed in a written law. A written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law. In the instant case, the directive(s) of the Governor of a State, including the Governor of Lagos State, does not amount to a written penal law under which any citizen could be arrested, tried, convicted and punished.”

See also Asake v. The Nigerian Army Council [2007] 1 NWLR (Pt. 1015) 408, Bode George v. F.R.N. [2011] 10 NWLR (Pt.1254) 66 and F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) 133.

In the same vein, it is trite that the rights of citizens can only be taken away by express words of a statute or a subsidiary legislation made in pursuance of an enabling statute and not through directives. See Director of SSS v. Olisa Agbakoba [1999] 3 NWLR (Pt. 595) 340 and Military Governor of Lagos State v. Ojukwu [1986] 2 NWLR (Pt. 18) 621. It is of no use that the Lagos Regulation ratified all the actions earlier taken by the Governor to contain the spread of COVID-19 as such does not give the directives the statute of a written law as they were merely ratified and not incorporated into the regulation. Thus, they cannot be used to restrict the rights of citizens to personal liberty and freedom of movement.

The last, but certainly not the least of the constitutional infringements by the containment measures of government with respect to COVID-19 is the brazen infringement of the fundamental rights of citizen by security agents and military personnel under the guise of enforcing lockdown orders.  There have been instances where citizens were shot and killed by policemen and soldiers while some persons were flogged, harassed and tortured by officers of various security agents. It is noteworthy that neither of the regulations made by the Federal or State Governments empowered armed personnel to take arbitrary measures to compel citizens to comply with them. In a constitutional democracy, the breach of penal law makes the offender criminally liable. Thus, the proper course will be to prosecute such an alleged and not to shoot, molest or torture the individual. See Ransome-Kuti v. A. G. Fed. (1985) NWLR (Pt.6) 21 and Nigerian Army v. Garrick (2006) 4 NWLR (Pt. 969) 69.

Conclusion and Suggested Remedies

Taking a clue from the position of the Supreme Court in Military Governor of Lagos State v. Ojukwu (1986) 2 NWLR (Pt. 18) 621 where the court stated that:

“The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. It means also that government should be conducted within the framework of recognized rules and principles…. as opposed to the uncertain and crooked cord of discretion.”

It is my position that in a constitutional democracy, as we profess to practice in Nigeria, all actions of government or agents of government must be founded on the rule of law otherwise they become unlawful and unconstitutional.

This paper finds that there are several constitutional infractions in the manner of issuing directives, orders and regulations examined above and in the course of enforcing them. Consequently, where there is a wrong, there must be a remedy. Therefore, we recommended the following remedies to persons whose rights have been breached on account of these directives and regulation or by the arbitrary actions of security officers and military personnel:

1. In the event that a person was charged and convicted for an offence under the Lagos Regulations or under any directive of the Governor of Lagos restricting movement of persons, such a conviction may be challenged and set aside. This because as discussed above, it has no basis in law.
2. Where the person has served the sentence handed down upon conviction and does not wish to challenge the conviction, such a person has the option to bring an action for the enforcement of his fundamental rights to fair hearing and where the person was arrested and detained in the process, he can enforce his right to personal liberty. This is in line with the decision in Faith Okafor v. Lagos Government referred to above.
3. In a case where a person is arrested, detained or in any way harassed, molested or tortured by policemen, soldiers or other officers of a security agency on account of any lockdown order or restriction, the person may by action in court of law, enforce his rights to dignity of human person and personal liberty. Where the victim dies in the process, the deceased’s next of kin, dependents or relatives may take action to enforce the deceased’s right to life. See Dilly v. I.G.P. [2016] NGCA 21 and Nasiru Bello v. A.G. Oyo State (1986) 5 NWLR (Pt. 45) 828.

Finally, any person who feels that his right has been infringed or that he has suffered in any way on account of the lockdown measures of the Federal and State government, he is advised to consult a lawyer for legal advice.

Ugochukwu Eze is a Lagos based legal practitioner and can be reached via ugochukwumgpeze@gmail.com or 08134266566.