INTRODUCTION
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The Constitution of the Federal Republic of Nigeria, 1999 as amended, (hereafter referred to as CFRN 1999) prioritizes the security and welfare of the people as the primary purpose of government. It is therefore not surprising but commendable that government adopts measures or courses of action to guarantee the security and welfare of the people. It is on this footing amongst others that a government may adopt the best approach to discharge this duty.
In recent times, the globe has been besieged with the covid-19 pandemic and Nigeria has not been left out. The federal government and some state governments in Nigeria have laid down some legal frameworks to combat and curtail the spread of the virus. As usual, Lagos State led the vanguard by coming up with the Emergency Dangerous Infectious Diseases Regulations to amongst others, restrict the movement of people, put a temporary halt on economic and other activities in order to contain the community spread of the covid-19. This bold and laudable step has been emulated by Edo State by providing for the Edo State Dangerous Infectious Diseases (Emergency Prevention) Regulations 2020 (hereafter called Emergency Regulations 2020) signed by the Edo State Governor on 30th March, 2020. It is against this backdrop that this article seeks to examine the constitutionality of the Emergency Regulations 2020.
LEGISLATIVE POWERS OF THE FEDERATION AND THE STATES
The exercise of legislative powers by the federal government and state governments is well delineated in Section 4 of the CFRN 1999 and can only be exercised by the National Assembly and Houses of Assembly respectively. The National Assembly has power to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List to the exclusion of the Houses of Assembly of States, save as otherwise provided in the constitution. The legislative power of the National Assembly further extends to any matter in the concurrent legislative list and any other matter with respect to which it is empowered to make laws in accordance with the provisions of the constitution.
On the other hand, the House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to any matter not included in the Exclusive Legislative List set out in Part l of the Second Schedule to the Constitution; any matter included in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to the Constitution to the extent prescribed in the second column opposite thereto and any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution. This was accorded judicial blessing by the Supreme Court in the case of AG OGUN STATE v. AG FEDERATION.
The CFRN 1999 also insightfully contemplates a situation whereby the law of a House of Assembly validly enacted conflicts with validly enacted law of the National Assembly. In such circumstance, the law made by the National Assembly shall prevail, and that other law shall to the extent of the inconsistency be void.
EXCLUSIVITY OF PROVISIONS OF THE EXCLUSIVE LIST
It is trite that the items contained in the exclusive list of CFRN 1999 are for legislation by the federal government through the National Assembly to the exclusion of all others. This is well enshrined in S.4 (2) and (3) of the CFRN
- The Exclusive List is contained in Part 1 of the 2nd Schedule to the CFRN 1999 and item 54 thereof particularly sets out quarantine as a component of the exclusive list. By this constitutional provision, it therefore means that only the National Assembly can constitutionally and validly enact a law on quarantine in Nigeria and by constitutional implication, only the executive body of the federal government can validly execute any such law on quarantine or derive power thereof. This is because the National Assembly cannot make a law directing the executive of a state to act or not act since its legislative powers does not extend to a state government by virtue of the doctrine of separation of powers as such would amount to legislative incursion into the realm of an independent but coordinate government. In the case of AG OGUN STATE v. AG FEDERATION (supra), the Apex Court at p.33 paras. E-F held per Atanda Fatai-Williams as follows: “Neither the President of the Federal Republic of Nigeria nor the National Assembly can unilaterally confer powers on a State functionary such as the Governor or the Attorney General of a State…”
It therefore follows that a state government or any of its agencies cannot validly and constitutionally derive powers from a law made by the National Assembly on any of the items in the exclusive list. There is need at this point to examine the provision of S.8 of the Quarantine Act 1926. The section provides for “State and Quarantine Powers” as follows:
“If and to the extent that any declaration under section 2 or 3 of this act 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 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”.
It is apposite to state that sections 2, 3 and 4 of the Quarantine Act provide for interpretation (defining only dangerous infectious disease and local area); power to declare any place an infected local area and power to make regulations by the president respectively.
It is my humble contention and submission that S.8 of the Quarantine Act is contrary to the CFRN 1999 and is caught by S.1 (3) of the CFRN 1999. This is because S.8 of the Quarantine Act unconstitutionally donated power to the Governor of a state contrary to sections 4 and 5 of CFRN
- The executive power of a state is vested in the executive governor and may only be exercised by the deputy governor, commissioner or officers in the public service of the state government and can extend to execution and maintenance of all laws made by the House of Assembly and only to matters the House of Assembly has power to make laws as provided in S.5 (2) (a) and (b) CFRN 1999. It is evidently clear that a governor cannot validly derive power from a law that is not made by the House of Assembly in line with the CFRN 1999. It is therefore submitted that the Emergency Regulations 2020 of Edo state is null and void to the extent of its inconsistency with CFRN 1999.
Assuming without conceding that the Emergency Regulations 2020 of Edo State is not void as espoused above, it is still not in conformity with the Quarantine Act. By 30th March 2020, Covid-19 Regulations 2020 made by the President pursuant to sections 2, 3 and 4 of the Quarantine Act came into force of law. What is more? The supposed power albeit unconstitutionally given to a state governor under S.8 of Quarantine Act can only be exercised where the President has not made regulations pursuant to S.4 of the Quarantine Act. The Emergency Regulations 2020 of Edo state was made by the Governor on 30th March 2020.
It may also be argued that the Covid-19 Regulations 2020 made by the President was essentially and almost specifically for Lagos, Ogun and Abuja, a percipient look at S. 8 of the Quarantine Act shows that what is required for the purported power given the Governor of a State albeit unconstitutionally to be extinguished is for the President to make any regulation pursuant to S. 4 of the Quarantine Act notwithstanding that it was made for a specific area or not. The irresistible conclusion is that the purported power of the Governor of Edo State under S.8 of the Quarantine Act no longer existed on March 30, 2020 and the Governor acted in vacuum. Therefore, as has been long established, you cannot put something on nothing and expect it to stand.
CONCLUSION
The courts have not relented to apply the blue pencil rule in appropriate circumstance as seen in DOHERTY v. BALEWA. In AG ABIA STATE & ORS v. AG FEDERATION, the Supreme Court held that “the blue pencil rule is applied to sever a part of a legislation that is good in the sense that it is valid, from the part that is bad”. It went further to hold that “if what remains of the impugned legislation, that is the part that is good, can stand, then it is applied. But, if what remains cannot stand on its own, the impugned legislation is declared invalid”. It is hereby submitted that the blue pencil rule will apply to delete the void portions of the Emergency Regulations 2020 of Edo State for offending item 54 of the exclusive list, sections 4 & 5 of the CFRN 1999 and being caught by S.1 (3) of CFRN 1999 if there are sections that can stand on their own, else the entire Emergency Regulations 2020 of Edo State is invalid because the Edo State Governor or the House of Assembly constitutionally lacks the power to enact any legislation (subsidiary legislation inclusive) on quarantine.
1 Section 4 of the CFRN.
2 Made pursuant to Public Health Law of Western Region 1959 and Section 8 of the Quarantine Act, Cap Q2, Laws of the Federation of Nigeria, 2004. (having regard to the provisions of section 2, 3 and 4 of Quarantine Act).
3 Section 4 (3) of the CFRN 1999.
4 Section 4(4) (a) and (b) of the CFRN 1999.
5 (1982) LPELR-11 (SC).
6 (1961) ANLR 630.
7 (2002) LPELR-611 (SC).
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