RE: Proposed Restriction Of Movement In Abuja, Lagos And Ogun By Presidential Fiat Is Illegal By Fatai A. ADEBANJO (LP)

My humane attention has been drawn to the publications with the above captioned subject matters respectively. To this end, I am respectfully constrained to also air my opinions premised on the instrumentality of the law, with a view to legally educating the public and not to smear the personalities of the writers of the above captioned publications.

Without much ado, it is necessary to quickly address the two vital contentions on the grounds of law, on which the two publications revolve, which are produced seriatim hereunder;

“The President has no powers to restrict the movement of persons without recourse to the National Assembly”

“The President has not invoked his powers under the Constitution to declare any state of emergency, which must be approved by the National Assembly”

If the President has acted under section 305, the powers of the President to declare a State of Emergency under section 305 of the Constitution of the Federal Republic of Nigeria 1999 as amended (the 1999 Constitution) is declaration antecedent and not subsequent to the approval; meaning that the 1999 Constitution permits the President to first make the Proclamation of a State of Emergency by an instrument published in the official gazette before subsequently seeking the approval of the National Assembly to regularize the said proclamation.

To really understand the above submission and appreciate the drafters of our Constitution, it is pertinent to reproduce the operational part of section 305 that unequivocally provided for the powers of the President and the Concurrence of the National Assembly as follows:

305. (1)Subject to the provisions of this Constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a Proclamation of a state of emergency in the Federation or any part thereof.

(2)    The President shall IMMEDIATELY AFTER THE PUBLICATION, transmit copies of the Official Gazette of the Government of the Federation containing the proclamation including the details of the emergency to the President of the Senate and the Speaker of the House of Representatives, each of whom shall forthwith convene or arrange for a meeting of the House of which he is President or Speaker, as the case may be, to consider the situation and decide whether or not to pass a resolution approving the Proclamation.

 (6) A Proclamation issued by the President under this section shall cease to have effect –

(a) If it is revoked by the President by instrument published in the Official Gazette of the Government of the Federation;

(b) If it affects the Federation or any part thereof and within two days when the National Assembly is in session, or within ten days when the National Assembly is not in session, after its publication, there is no resolution supported by two-thirds majority of all the members of each House of the National Assembly approving the Proclamation;

The operational part of the above section 305(2) is that “The President shall immediately after the publication” which connotes that the proclamation of a state of emergency issued by the President will enjoy the force of law before seeking the approval of the National Assembly. Hence, it is therefore correct to submit that the President of Nigeria does not need the consent of the National Assembly BEFORE proclaiming a state of emergency on the federation or any part thereof.

Furthermore, by virtue of section 305(6)(b) of the Constitution produced above, it is crystal clear that the Proclamation issued by the President without the approval of the National Assembly as argued above will remain effective and can only cease to be effective when the National Assembly fails to ratify same within two (2) days if the National Assembly is in session or within ten (10) days if the National Assembly is not in session. Therefore, the effect of this is that, the proclamation of a state of emergency singlehandedly issued by the President without the approval of the National Assembly can remain effective for a period of two (2) – ten (10) days respectively as the case may be before the National Assembly will either approve or disapprove of same. Please note that the approval of the National Assembly in this regard is not for the proclamation to enjoy the force of law but rather to continue enjoying the force of law it has been enjoying prior to the approval of the National Assembly.

In as much as I am aware that section 305 of the Constitution is not applicable with respect to the actions of the President in relation to the above captioned subject matter because he has not proclaimed a state of emergency, it is totally incorrect and tantamount to misconception of the provision of section 305 of the Constitution to say that even if the President intended to proclaim a state of emergency, he needed the consent of the National Assembly before he can issue a proclamation. The approval of the National Assembly is only necessary after the President has made the proclamation.

Having asserted as above, it is now necessary to justify the actions of the President to have declared a total restriction on movements in Lagos, Ogun and FCT Abuja because of the spread of COVID-19 pandemic, which has been declared a globally deadly virus, eating deep the fabric of our existence as a Nation. Thus, it has been projected that if speedy and adequate measures are not taken urgently to combat this deadly gargantuan monster, it may lead Nigeria into insurmountable recession.

It is rather unfortunate for us at this very difficult time to be discussing the legality of the actions of the President at the expense of public health. Since the STAKEHOLDERS have announced the Social Distancing and other measures, the number of infected persons keep increasing, do we expect the President to stand with his arms akimbo and watch the Virus take over the Country?

It is important to reiterate further that the security and welfare of the people of Nigeria shall be the primary purpose of the government as stated in section 14(2)(b) of the Constitution. Also, section 17(3)(c) has empowered the Government to direct its policy towards ensuring that the health, safety and security of all persons in employment are safeguarded and not endangered or abused. It is therefore necessary to note that these sections of the Constitution are not justiciable, meaning that citizens cannot successfully maintain a legal action against the Government, but the sections only serve as a framework for the government to operate.

The arguments of those Legal Practitioners chastising the President for placing restriction of movements in Lagos, Ogun and FCT Abuja seem to be oblivious of the existence of the Quarantine Act, which was passed into law to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases.

Flowing from the aforesaid, the Quarantine Act (the Act) authorizes the President to 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 the Act. The Act also empowers the President to prevent the spread of dangerous infectious disease into or from Nigeria, and he can further prescribe any such steps to be taken UPON ANY PLACE whether within or without Nigeria having declared such place an infected area, among other powers of the President. See Sections 3 and 4 of the Quarantine Act.

Ensuring the applicability, considering the rising numbers of infected persons in Lagos and Abuja, the President diligently declared Lagos and Abuja as infected areas and due to the proximity of Ogun State to Lagos, Ogun was also added. Hence, it is within the statutory powers of the President to do same, as the Quarantine Act has not subjected the powers of the President in this regard to the whims and caprices of the National Assembly.

It is really regrettable therefore to hide under Freedom of Movement as provided by section 41 of the Constitution, EVEN when section 45 of the same Constitution has derogated from section 41 on the ground of public safety, public order, public morality or PUBLIC HEALTH. If COVID-19 cannot pass for the PUBLIC HEALTH exemption to freedom of movement as envisaged by the Constitution itself, what will?

I dearly appreciate the efforts of our Medical Practitioners and the Government at various levels towards curtailing the spread of COVID-19 in Nigeria and finding lasting solutions to getting rid of the deadly virus. As Legal Practitioners, instead of being clogs to the wheels of the Fight against COVID-19, we are expected to be a part of the facilitators striving hard to ensure a quick victory against the deadly virus.

It is therefore my humble submission without mincing words that the action of the President is legal, moral and justifiable in a democratic system, having been faced with a disease that threatens the existence of humanity.

In the spirit of sportsmanship, I enjoin Nigerians to observe all medical tips with respect to curtailing the spread of COVID-19, and I also advise that the best way to curtail this virus is to stay at home. While at home, wash your hands regularly and do not joke with your hand sanitizers.

Thank you and God bless you

Fatai A. ADEBANJO (LP)