FG Restriction On Movement In Lagos, Abuja And Ogun Is Necessary And Desirable But Illegal And Unconstitutional By Festus Ogun

1. Yesterday, President Muhammadu Buhari announced the total restriction of movement in Lagos, Abuja and Ogun; a policy put in place to ensure the containment of the deadly coronavirus that is spreading very fast like wildfire in harmattan. Just like what obtains in other democratic nations of the world, it is expedient to curtail movement of citizens at a time like this given the toxic nature of the virus. The decision of the Federal Government is therefore necessary, sound, desirable, commendable but, unfortunately, illegal and unconstitutional.

2. It is a truism and very much understandable that we are in a period of critical health crisis and drastic and urgent measures need to be taken. However, since we operate a constitutional democracy, no action of the government can be done outside the scope and purview of the law even in cases of emergency and that is a more reason why there are copious provisions in our laws that cater for emergency situations. I daresay even during war times under International Law, there is a legal framework. Our laws have provided for simple and easy procedures to handle emergency situations like this and it costs us nothing to obey them.

3. There is no written law that says the Constitution, the principles of rule of law and constitutionalism and all other relevant laws should be totally jettisoned in times of crisis and emergency. Yes, some rights might be restricted in accordance with the law but the rule of law must still take its course. Emergency situations do not mean the abolishment of laws.

4. Under the Nigerian law, the spread of a pandemic can be contained by the President in, majorly, two ways. One, by declaring a State of Emergency as provided for under Section 305 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) subject to the approval and ratification of the National Assembly who “decides whether or not to pass a resolution approving the Proclamation” which must be published in the Official Gazette of the Government of the Federation. Two, by virtue of Section 3 and 4 of the Quarantine Act of 1926, the President can alternatively issue a simple regulation in form of Statutory Notices. A mere television declaration of restriction of movement by the President without recourse to the provisions of the law cannot, therefore, be a valid declaration, whether in a period of emergency or not. Constitutional democracy is not military rule.

5. The President has not followed any of the stipulations of the law in this regard. On the constitutional provisions, the President has not published any Official Gazette in this respect neither has the National Assembly ratified it. Executive fiat is not the same as Official Gazette publication and would equally not take the place of ratification of the National Assembly. Interestingly, the President has not issued any regulation in form of subsidiary legislation as provided for under the Quarantine Act. Section 3 & 4 of the Quarantine Act provides that there must be a statutory NOTICE and regulations must be issued by the President. In both Constitutional and Administrative Law, executive fiat cannot take the place of Statutory Notice and Regulations. Again, it cost us nothing to follow due process. Television declaration is not the requirement of law.

6. On the 20th of May 2013, the Constitution of the Federal Republic of Nigeria 1999, State of Emergency (Certain States of the Federation) Proclamation 2013 was published in the official gazette, No. 27, Volume 100 and was approved by the National Assembly on the 22nd May, 2013. All was done between two days and heaven did not fall. If Governor Nasir El-Rufai of Kaduna State, Governor Sanwoolu of Lagos, Governor Fayemi of Ekiti State and Governor Wike of Rivers State can issue a regulation in line with the Quarantine Act last week, I feel it costs the President nothing to follow the due process of law. UK, US, South Africa and other nations of the world have legal framework to battle the pandemic, coronavirus. Even our neighbour, Ghana has passed the Imposition of Restriction Bill, 2020 few days ago; all in the bid to have a legal framework in place to fight coronavirus. Ditto Uganda.

7. It will be important to state here that under no guise can a people’s fundamental rights be restricted and derogated except through a known written LAW and not by a mere executive fiat or a television declaration. See: Section 45 of the 1999 Constitution and the celebrated case of Faith Okafor v. Lagos State Gov (2017) 4 NWLR (Pt. 1556) 404. If the people’s right to movement would be temporarily abrogated, same must be done as prescribed by law.

8. It is important the leadership of our country follow due process at a time like this. Even if the fundamental rights would be restricted and suspended, laws are still much important and necessary. It is the legal framework that would guide the situation all along. Failure to make recourse to the law would be an invitation to anarchy and fascism. I beg to ask: without an enabling law or statutory regulation, what offence would those charged for ‘contravention of the Presidential Directives’ in the next two weeks be charged for? Absolutely none because there can be no punishment without law as provided under Section 36(12) of the 1999 Constitution. An invalid order by the President will attract no sanction in law. Lord Denning said you cannot put something on nothing and expect it to stand. How about the legal framework to define and restrict the powers of law enforcement agents? What happens should the soldiers and other law enforcement officers brutalize citizens arbitrarily and or destroy their properties? Where is the legal framework?

9. Lockdown without law will occasion nothing other than double calamity.

10. Nigeria is a democracy and not a monarchy. We are guided by law at all times and no one should be deceived by any ‘Doctrine of Necessity’ that will warrant disregard to the rule of law where there are copious but easy and simple provisions of our law guiding emergency situations. I do not know any authority in law that says ‘Doctrine of Necessity’ should apply when the law is clear on what should be done. We must ensure we abhor lawlessness and arbitrariness.

11. Following the spirit and the letter of law should not be a choice, it is mandatory as those in charge of power have sworn an oath to always live by the law of the land. Doing the right the thing in the proper and legal way is the way to go in a constitutional democracy. Lawlessness shouldn’t be institutionalized. Not following due process should not be a national culture. The leadership of the country cannot act lawlessly and expect the people to be law abiding. The act of political leaders has its effect on social behaviour. When law ends, tyranny begins.

12. In conclusion, as much as the effort of the country’s leadership is recognized and highly appreciated at this time, we strongly urge the Federal Government to heed to the voice of reason, retrace its steps and follow due process in making the national declaration; bearing in mind the fact that there can be no democracy in the absence of constitutionalism and orderliness can be achieved only through law and not by force, arbitrariness or illegality.

13. Yes, I am in total support of restricted movement. My contention is for it to be done in the right way. There is no law that says we should display ‘anyhowness’ in emergency situations. Doing the needful when and where necessary is not even about Buhari or the APC, it is about us, our constitutional democracy and humanity. We must do things rightly, properly, legally and at all times.

14. May our nation, and the rest of the world, be healed of this pandemic. God bless the Federal Republic of Nigeria.

Festus Ogun, Legal Analyst & Human Rights Activist, festusogunlaw@gmail.com, 09066324982
30/3/2020