THE CORONA LAWS (1) By Ebun-Olu Adegboruwa, SAN

Well, we are gradually now well into it, that is the Coronavirus that we have all read and heard of, is finally here, no thanks to the federal government of Nigeria. Without any doubt, there was no case of COVID-19 in Nigeria initially, it was just rumours and news of it that we heard, from other nations. And we shouted ourselves hoarse for the federal government to take urgent steps to close our borders but our officers behaved as if we had some immunity against Coronavirus. From all that we now know, there were vested interests still hibernating abroad that did not allow our airports to close on time, whereas most of them were ferried in and have now tested positive and have spread the disease. We had enough time to have prevented the influx of foreigners and our nationals coming in from foreign land, from transmitting the virus into Nigeria. From the analysis so far enumerated of the cases that have tested positive, only two are indigenous to those who are ordinarily resident in Nigeria, which most probably will finally be traceable to contact with the invaders. No doubt the federal government did not react on time, but now the virus is here, what do we do?

Being the immediate host of most foreigners, Lagos turned out to be the first casualty of the COVID 19 pandemic and it is heart-warming that the State was well prepared. Without any doubt whatsoever, Governor Babajide Sanwoolu has performed creditably well on this occasion and has even exceeded the expectations of many. His Commissioner for Health, Prof Akin Abayomi, has just been so outstanding, forthright and diligent in the handling of this virus, with daily updates and personal supervision. I also believe that the influence of the wife of Governor Sanwoolu, who is a medical doctor, has impacted positively on her husband, in the way and manner the virus has been contained in Lagos State and Nigeria by extension. On his own part, Governor Kayode Fayemi took courage to alert Nigerians of the Ekiti State case, his contacts and how to trace them. He it was that first introduced the most effective social distancing policy in a very detailed form, asking his workers to work from home, which other States and even the federal government have now copied. In similar vein, Governor Bala Mohammed is the first highly-placed public figure that openly declared his positive status to COVID 19, defying the attempt by many to stigmatize those who have tested positive, as if it is some kind of death sentence. Now to the Corona laws.

We are now in very unusual times in our nation and indeed all across the globe. The Coronavirus has stubbornly enacted its own laws, suspending all other laws in the process. It caught us unawares, especially at the federal level, which was not proactive enough to discern the ominous signs coming from the other nations. By March 24, 2020, the Chief Justice of Nigeria had rolled out directives suspending all normal court proceedings, on account of COVID 19. The National Assembly declared its own compulsory holiday and suspended all plenary proceedings due to COVID 19. The weekly Federal Executive Council meeting was also suspended indefinitely, as the venue, Aso Villa, was said to have become infected with COVID 19. In essence, COVID 19 imposed itself on us and suspended all executive, legislative and judicial activities nationwide. All court cases were adjourned sine die, all laws remain suspended and all activities became paralysed, till God knows when. Coronavirus has imposed its own laws.

There have been some debates about how to tackle this monster, from the standpoint of law, especially as it relates to the movement of people, goods and services. Some governors have imposed a total lockdown upon their States, shutting their borders to other States, whilst some have taken the necessary step to enact regulations to guide events in their States. Without any doubt whatsoever, it is not proper for any governor in any State to impose restrictions upon his people or people from other States that can only access their States through the State under lockdown. There is no law in force in Nigeria that supports such dictatorship, even if our situation demands it. In this regard, section 41 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) comes in handy, when it states expressly that “every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit there from.”

The above provision is so clear and simple and covers the entire landscape of Nigeria. Thus, so long as any land is under the geographical entity called Nigeria, no President or Governor, is entitled to make any executive declaration, capable of denying any citizen of Nigeria, access thereto. In this regard, no governor can claim to shut the borders of his State against his own citizens and citizens of other States. The freedom of movement is absolute in this wise and it is accorded to every citizen by virtue of his existence as a person, it is attached to the right to life. No governor can validly make any regulation or executive order, that may be capable of circumscribing this right, in view of the supremacy provisions of section 1 (1) of the Constitution. Now people talk about the derogatory provisions of section 45 of the Constitution, as empowering the governors or even the president, to make regulations to restrict the movement of people. With all due respect to the proponents of this theory, it is a fallacy that flies in the face of the Constitution. What section 45 (1) talks about is a “… law that is reasonably justifiable in a democratic society”, which will then take us to section 4 of the same Constitution, empowering only the National Assembly and the Houses of Assembly of the States, as the main law-making organs of State. So, if the President or the Governor of any State, desires to make any regulation for the restriction of the movement of people for any purpose whatsoever, he has to go through the parliament.

This is very important because the process of law-making is perfected in its procedures of debates, committee actions, public hearings, etc, making it a people-oriented process, whereas executive regulations are decisions of one single person or a few persons, based mostly on subjective and arbitrary deductions and assumptions. That cannot be a way to regulate human movement, which will in turn be subject to abuse and misinterpretations. Yes, there is a major crisis at hand that requires very drastic solutions to save humanity, I agree. Nonetheless, we cannot respond to emergency situations through arbitrary regulations or else we would be attempting to solve a problem by creating new ones. The Amotekun laws of the South-West States took less than one month to perfect and enact. Being a national calamity, it should be easy for the legislative houses of the States to put heads together, even through video conferencing and other means of online meetings, to agree on the contents of a law to regulate this pandemic, instead of rushing to take delivery of new luxury cars when people are dying. I have read the regulations made by the Governor of Lagos State, purporting to arrogate some power to restrict the movement of people. With all due respect, that regulation is totally unconstitutional and constitutes a flagrant violation of sections 1 (1) and 41 of the Constitution.

Now, only Lagos and Kaduna States have purported to make official regulations in relations to COVID 19, whilst other States have resorted to executive proclamations which have no force of law. Since Lagos State has been the centre of this pandemic and the most effective in its approach, it is likely that many other States may be tempted to copy the illegal regulations made by the governor. That regulation is titled: Infectious Diseases (Emergency Prevention) Regulations 2020, which is said to have come into force on March 27, 2020. In that regulation, the governor purports to have derived his powers under the Public Health Law of Lagos State and the Quarantine Act of 2004. First, it must be stated that laws relating to public health and infectious diseases generally, are usually limited in nature and scope and specifically, they are targeted at the victims and cannot be the basis for seeking to restrict the movement of others who have not been infected. I have gone through the Public Health Law of Lagos State and its entire 70 sections and all the regulations made thereunder and I cannot find authority for the action taken by the governor to seek to restrict the movement of people on account of COVID 19.

The focus of that law is to declare certain areas as infected areas, to isolate those infected for treatment and to prevent them from mingling with others to spread the disease. A law promulgated to protect me cannot at the same time be the source of my hindrance or movement restriction. It will be standing law and logic on their heads if we so think. The law permits compulsory medical treatment (s.25), apprehension of persons suffering from infectious diseases (s.31), isolation of contacts (s.26), removal and detention of infected persons in health facilities (s.23), declaration of infected areas and evacuation (s.21), fumigation, sanitization and disinfection of houses, buildings or premises (s.28), etc. By authorizing the disinfection of public means of transportation and prevention of infected persons from public means of transportation in its sections 32 and 33, it is clear that the Public Health Law never contemplated a situation whereby the movement of non-infected persons will be restricted. Indeed, that law has nothing to do with restricting the movement of persons, as can be seen even in all its accompanying regulations which all deal with pets, leprous persons and meat. Whereas I commend and will continue to commend the efforts of Governor Sanwoolu in this critical time of crisis, he cannot find support for the arbitrary restriction of the movement of citizens or the shutting down of the borders of Lagos State. The proper thing is to go through the House of Assembly of the State to do the needful.