Illegality Of COVID-19 Regulations Of 2020 And The Toothless Quarantine Act Of 1926

Daily Law Tips (Tip 538) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

ILLEGALITY OF COVID-19 REGULATIONS OF 2020 AND THE TOOTHLESS QUARANTINE ACT OF 1926.

Nigeria has a 91 years old federal legislation designed to impose quarantine and prevent spread of infectious diseases. Since the Act was enacted in 1926, there has not been any amendment or any effective framework/policy for Public Health Crisis System in Nigeria. However, there is a 2014 federal Bill for an Act to establish the Nigeria Public Health Act, establish a Public Health Emergency Planning Commission and to repeal the Quarantine Act of 1926 but the bill has not seen light. With the creeping of COVID-19 into Nigeria in February 2020 and slow uncoordinated federal and state governments’ interventions, comes the COVID-19 Regulations, 2020. Several legal questions have been raised. Did the President comply with statutory provisions and procedures of Quarantine Act in making the 2020 regulation? Is the 2020 regulation defective? Can the Quarantine Act and the 2020 Regulation be basis for a lockdown and restriction of human rights? Has the President acted beyond his powers?

The Quarantine Act of 1926 covers dangerous infectious diseases like cholera, plague, smallpox, yellow fever and typhus, and empowers the President of Nigeria to add any other infectious disease to the list. Hence, the President can declare a disease to be a dangerous infectious disease and add to the list, like Coronavirus, COVID-19. The President can also declare any place in Nigeria and outside Nigeria to be infected local area, make regulations for preventing infections in any part of Nigeria, powers and duties of officers charged to enforce the regulation and fixing of fees/charges to be paid and who to collect such for any thing to be done under the regulation. If the President fails to declare a disease to be dangerous infections disease or to declare infected locations, the Governor of a State can do so for his state.

The President is also tasked with provision of sanitary stations, buildings and equipment to combat any dangerous infectious disease. In the States, Governors are tasked with same duty for their states. Violations and disputes arising from any Regulation made pursuant to the Quarantine Act is to be determined by a Magistrate Court and Punishments for contravention are fine of Two Hundred Naira (N200) and or imprisonment for not more than six (6) months. Note that the punishment here cannot be increased even by executive order or regulation but through an amendment by the National Assembly.

On 30th March 2020, pursuant to the Quarantine Act, the President issued the COVID-19 Regulation 2020. The Regulation provides for restriction of movements in parts of Nigeria (Lagos State, Ogun State and the Federal Capital Territory), ordering stay at home, banning travels in those states, notifying the concerned states’ governors and the Minister of Federal Capital Territory (FCT). It also suspends all airports and aircrafts (except with special permits), and courts (except for urgent essential issues) in the mentioned locations. It exempted hospitals, banks (skeletal operations), lagos seaports, commercial establishments dealing on food, petroleum, power or private security firms. The Regulation highlights steps government is taking to prevent spread of COVID-19 and to provide reliefs materials, as well as requests for personal sacrifices and appreciates support of private sector and individuals.

Where the President is to make a declaration or give a notice, it must be by publication in the Official Gazette of the Government of the Federation. While the President has powers under the Quarantine Act to make Regulations for prevention of dangerous infectious diseases, the Quarantine Act does not empower the President to restrict, infringe or suspend any human rights. Where there is need to restrict some specific human rights for any reasonable measure, the constitution gives only two (2) options/models procedures.

Option/Model No. 1 is to make a Federal Law (an Act by National Assembly, where restriction is needed across Nigeria) or State Law (a Law by House of Assembly where restriction is need only in a state) that is reasonably justifiable in a democratic society in the interest of public health and public safety. This option can only restrict the following five (5) human rights; Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peacfull Assembly and Association and Right to Freedom of Movement.

Option/Model No. 2, is for the President of Nigeria to make a proclamation of state of emergency across Nigeria or for some specific states, subject to subsequent approval of such proclamation by the National Assembly. Where there is a State of Emergency, only seven (7) human rights can be restricted; Rights to Life, Right to Personal Liberty, Right to Private and Family Life, Right to Freedom of Thought, Conscience and Religion, Right to Freedom of Expression and the Press, Rights to Peacfull Assembly and Association and Right to Freedom of Movement.

It must be mentioned that there are four (4) human rights that cannot be restricted or suspended at all, and they are; Right to Personal Liberty, Right to Freedom from Discrimination, Right to Acquire and Own Immovable Property anywhere in Nigeria and under the Right to Fair Hearing is the Right not to held guilty of a non-existing offence or to be imposed heavier penalties contrary to law. These rights are expressly exempted or omitted from the restriction on and derogation from fundamental human rights in the constitution.

It must be reiterated that any law, Act, Regulation, Proclamation or Order that contradicts the constitution of the Federal Republic of Nigeria is null and void, useless and worthless. Violation of useless law, order or regulation is not an offence in Nigeria. Persons who are harassed, arrested, detained or prosecuted based on worthless laws/regulation can always approach the courts for enforcement of human rights and may seek huge monetary damages running into millions of Naira. Court processes, cases, procedures and applications for enforcement of human rights are urgent, essential and time bound, so they are among duties/services of courts that are exempted by the COVID-19 Regulations 2020 and the Chief Justice of Nigeria’s Circular dated 23 March 2020.

Conclusively, the Quarantine Act of 1926 may be old with laughable punishments (fine of Two Hundred Naira #200.00), it is still valid in Nigeria. It empowers the President to prevent dangerous infectious diseases and make necessary regulations. And, where the President fails to act, it empowers State Governors to act for their respective states. However, it does not empower the President, Governors, National Assembly, a House of Assembly, Center for Disease Control or any security agency to restrict, suspend or violate any human rights of persons in Nigeria. Where the President and his agents or the National Assembly wishes to combat and prevent diseases by restricting any human right, they can only do so by enacting a reasonably justifiable law that restricts human rights or by declaring a state of emergency. A reasonably justifiable law that restricts human rights can restrict only certain five (5) human rights. A state of emergency can restrict only certain seven (7) human rights. Then, there are four (4) human rights that can never be restricted, suspended or violated for any reason, even in war time or public health crisis periods. Although the security and welfare of the people of Nigeria are the primary purpose of government, government must be lawful and law abiding in achieving such purpose.

The writer is not unaware of COVID-19 pandemic and governments interventions to end it. However, 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. Stay at Home and Stay Healthy.

My authorities are:

1. Sections 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 45, 305, 318 and 319 of the Constitution of the Federal Republic of Nigeria, 1999.
2. Sections 1, 2, 3, 4, 5, 6, 7 and 8 of the Quarantine Act of 1926.
3. Sections 12, 17, 18, 32, 37 and 39 of the Interpretation Act of 1964.
4. Articles 4 and 5 of the International Covenant on Civil and Political Rights of 1966.
5. Articles 2, 11 and 12(2) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act of 1983.
6. Provisions of the COVID-19 Regulation of 2020.
7. Chief Justice of Nigeria’s Circular (Circular No: NJC/CIR/HOC/11631) dated 23 March 2020.
8. The Supreme Court decisions in the case of ADEGBENRO v. AG OF THE FEDERATION & ORS (1962) LPELR-25118(SC)
9. The Supreme Court decision in the case of WILLIAMS v. MAJEKODUNMI (No.2)(1962) LPELR-25044(SC)

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