…The President Is On a Voyage of Constitutional Piracy…Soyinka

…Lockdown Order Not Enforceable…Falana

….We Can’t Respond to Emergency Situations Through Arbitrary Regulations…Adegboruwa

…Soyinka Not Knowledgeable on Medical, Scientific Matters…Presidency

…Buhari’s Lockdown Order Is Valid…Malami

Mixed reactions have dogged the lockdown order of Lagos, Ogun and the nation’s capital, Abuja by President Muhammadu Buhari on Sunday evening.

Both Nobel Laureate, Professor Wole Soyinka and Human Rights Lawyer, Mr Femi Falana (SAN) wanted to know where the President  derived the power(s) to shut down the two states, without enabling laws. They also express fear that asking soldiers to enforce the shut down order could militarize our democracy.

Falana

Firing the first salvo, Mr Falana told the President his order, as currently structured, was not enforceable. According to him, “Following the national broadcast of President Buhari on the COVID-19 pandemic yesterday, some lawyers have questioned the constitutional validity of the restriction of locomotion of people in Abuja, Lagos and Ogun states.

“No doubt, the President is empowered to adopt any measures deemed fit to combat the dangerous disease but such measures have to be spelt out in a regulation made pursuant to section 305 of the Constitution or under the Quarantine Act. Otherwise, the presidential order on the restriction of movement in the affected areas cannot be enforced by the Police.

“Even though the civil rule was restored in the country 21 years ago, the psyche of the political class has not been demilitarised. Hence, decisions taken by rulers are required to be obeyed “with immediate effect” without any legal backing. But in Okafor v Governor of Lagos State (2016) LPELR-41066 (CA), the Court of Appeal called on all authorities to appreciate the need to govern the country under the rule of law.

“Thus, the directive of the Governor of Lagos State restricting the movement of citizens and residents during the state monthly environmental sanitation exercise was struck down because of its unconstitutionality. It was the unanimous view of their Lordships that the arrest of Appellant for flouting the order or directive of the governor was completely illegal.

“It is my view, that democracy thrives more on obeying and promoting the rule of law rather than the whims and caprices of the leaders against the lead. In my view, it amounts to when a free citizen of this great country such as citizen Faith Okafor, is put through the rigours of the criminal process for an offence not prescribed in any written law but merely on the directive of the Governor of Lagos State.

“An action which if allowed to thrive in a democracy, such as ours could confer on such office holders infinite, absolute and autocratic powers contrary to the clear provisions of the constitution of the land, to which both the leaders and the led are subject. I refuse to allow such autocratic, absolute and infinite powers to fester upon our nascent democracy.

“Lawyers who are saying that the law should be completely relegated to the background in combating the coronavirus pandemic reminds me of the dissenting judgment of Lord Atkins in the case of Liversidge v Anderson 1944 UKHL1. While accusing his learned brethren of being “more executive minded than the executive”, his Lordship said inter alia:

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on the recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.

“However, while the nation’s armed forces should be commended for making their medical facilities available to members of the public in the fight against the highly dangerous virus, the plan to dispatch armed soldiers to the streets to enforce the COVID-19 guidelines should be shelved because it is illegal.

“For the umpteenth time, I am compelled to draw the attention of the military authorities to the case of Yussuf v Obasanjo (2005) 18 NWLR (Pt ) where Salami JCA (as he then was) held that it is up to the Police to protect our nascent democracy and not the military, otherwise the democracy might be wittingly or unwittingly militarised. This is not what the citizenry bargained for in wrestling power from the military in 1999. Conscious steps should be taken to civilianise the polity and thereby ensure the survival of and sustenance of democracy.

“In the same vein, in the celebrated case of All Progressive Congress v Peoples Democratic Party (2015) LPELR 24349 Aboki JCA held that the President lacks the power to call on the Armed Forces to restore law and order in any part of the federation without the approval of the National Assembly as provided in sections 217(2) and 218(4) of the Constitution as amended. His Lordship reminded the Federal Government of its legal obligation ‘to confine the Military to their demanding assignments especially in these trying times of insurgencies and encroachment into the country’s territories…’

“Finally, just last week the satanic Boko Haram force was reported to have massacred 47 Nigerian troops and 92 Chadian soldiers in two separate attacks. In view of such enormous challenge, our patriotic armed forces should concentrate efforts on the counter-insurgency operations being carried out in the North-East region while the police and allied security agencies are allowed to enforce the COVID-19 regulations and guidelines,” he said.

Soyinka

Soyinka, on his part, described what the President did, as “constitutional piracy”.

The Nobel Laureate, in a statement entitled “Between COVID and Constitutional Encroachment”, said, “constitutional lawyers and our elected representatives should kindly step into this and educate us, mere lay minds. The worst development I can conceive of us is to have a situation where rational measures for the containment of the coronavirus pandemic are rejected on account of their questionable genesis. This is a time for unity of purpose, not nitpicking dissensions.

“So, before this becomes a habit, a question: does President Buhari have the powers to close down state borders? We want clear answers. We are not in a war emergency. Appropriately focussed on measures for the saving lives, and committed to making sacrifices for the preservation of our communities, we should nonetheless remain alert to any encroachment on constitutionally demarcated powers. We need to exercise collective vigilance, and not compromise the future by submitting to interventions that are not backed by law and constitution.

“Who actually instigates these orders anyway? From where do they really emerge? What happens when the orders conflict with state measures, the product of a systematic containment strategy including even trial-and-error and hiccups undertaken without let or leave of the centre. So far, the anti-COVID-19 measures have proceeded along the rails of decentralised thinking, multilateral collaboration and technical exchanges between states.

“The centre is obviously part of the entire process, and one expects this to be the norm, even without the epidemic’s frontal assault on the Presidency itself. Indeed, the centre is expected to drive the overall effort, but in collaboration, with extraordinary budgeting and refurbishing of facilities.

“The universal imperative and urgency of this affliction should not become an opportunistic launch pad for a sneak RE-CENTRALISATION, no matter how seemingly insignificant its appearance. I urge governors and legislators to be especially watchful. No epidemic is ever cured with constitutional piracy. It only lays down new political viruses for the future.”

Adegboruwa

Speaking in the same vein, Mr Ebun-Olu Adegboruwa (SAN) says, “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, sanitisation and disinfection of houses, buildings or premises (s.28), etc.

“By authorising 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,” the Lagos based lawyer said..

The Presidency

The Presidency has however enjoined Nigerians to trust information coming from scientists and medical specialists as regard issues concerning virus diseases, instead of listening to Professors of Literary writings.

The Senior Special Assistant to the President on Media and Publicity, Mr Garba Shehu gave the advice while reacting to comments made by Prof. Wole Soyinka, on legal status of 14-day lockdown announced by President Buhari on Sunday.

The presidential aide advised Soyinka to write a play on the coronavirus pandemic, after this emergency is over, rather than attacking measures put in place to tackle the spread of the deadly disease.

”In the meantime, we ask the people of Nigeria to trust the words of our doctors and scientists – and not fiction writers – at this time of national crisis.”

The statement read in part: “Yesterday, the esteemed Nobel Laureate, Prof. Wole Soyinka, made comments on the legal status and description of 14-day lockdown announced by President Muhammadu Buhari.

“Professor Soyinka is not a medical professor. His qualifications are in English Literature, and his prizes are for writing books and plays for theatres.

”He is, of course, entitled to his opinions – but that is exactly all they are: semantics, not science. They cannot – and should not – therefore be judged as professional expertise in this matter in any shape or form.

“Across the world – from parts of the United States and China, to countries including the United Kingdom and France, government – mandated lockdowns are in place to slow and defeat the spread of coronavirus.

”All have been declared, and all have been made necessary, based on medical and scientific evidence. The guidance of the Nigerian Government’s medical specialists is to advise the same.

“Professor Soyinka has also declared, doubtless based on his specialism as a playwright, that: “We are not in a war emergency’’.

Eminent scientists say otherwise:

“Dr Richard Hatchett, Head of the International Coalition for Epidemic Preparedness Innovations (and former Director of the US Biomedical Advanced Research and Development Authority) has said, ‘War is an appropriate analogy’.

“Professor Anthony Fauci, Director of the United States National Institute of Allergy and Infectious Diseases and member of the White House Coronavirus Task Force has said of the battle against the pandemic: ‘It’s almost like the fog of war’.

“As for the legality of the lock down, the Government of Nigeria’s primary duty in law and action is the defence of the people of Nigeria. We face a global pandemic. Nigeria is now affected.

”The scientific and medical guidance the world over is clear: the way to defeat the virus is to halt its spread through limitation of movement of people.

“Perhaps Wole Soyinka may write a play on the coronavirus pandemic, after this emergency is over. In the meantime, we ask the people of Nigeria to trust the words of our doctors and scientists – and not fiction writers – at this time of national crisis,’’ the presidential aide said.

President Muhammadu Buhari on Monday signed the COVID-19 Regulations, 2020, which declared COVID-19 a dangerous infectious disease.

This according to Mr Femi Adesina the special adviser to the President, is in line with the exercising of the powers conferred on Buhari by Sections 2, 3 and 4 of the Quarantine Act (CAP Q2 LFN 2004), and all other powers enabling him in that behalf.

In his statement on Monday, the presidential spokesman noted that the regulations, effective March 30, 2020, also gave legal backing to the various measures outlined in the President’s National Broadcast on March 29, 2020, such as Restriction/Cessation of Movement in Lagos, FCT and Ogun State and others toward containing the spread of the pandemic in the country.

He added that to ensure that Nigerians can still perform on-line transactions and use ATMs whilst observing these restrictions, exemption is granted financial system and money markets to allow very skeletal operations in order to keep the system in light operations during the pendency of these regulations. 

Attorney General

Minister of Justice and Attorney-General of the Federation, Mr Abubakar Malami, SAN, says President Muhammadu Buhari’s declaration of Lagos, Abuja and Ogun under lockdown to help stop the spread of coronavirus in the country is valid, legal and enforceable.

Malami said this in a statement he issued on Monday in Abuja while reacting to Mr Ebun Olu-Adegboruwa, SAN, on his criticism of President Buhari’s proclamation on restriction of movement on account of COVID-19.

 “Mr Olu Adegboruwa is wrong and misconstrued the law of sections 5, 14, 20 and 45 of the 1999 Constitution of the Federal Republic of Nigeria and Sections 2, 6 and 8 of the Quarantine Act, as well as Article 4 of the International Covenant on Civil and Political Rights and Article 11 on Human and Peoples Rights which make the declaration by His Excellency the President, valid, legal and enforceable.

“Ebun-Olu Adegboruwa had claimed that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly.

“I wish to note that he did not state any constitutional or statutory provision which the President has breached in the present circumstances.

“It is important to inform the discerning members of the public that the President did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both Houses of the National Assembly.”

Malami said that even at that Section 305(6)(b) of the 1999 Constitution (as amended) permits a proclamation of a state of emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down.

He said the learned silk also goofed when he questioned the President’s powers to restrict movement and claiming that such powers can only be exercised by the State Governors and the respective State Assemblies.

“It is clear from the President’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious corona virus disease.

“The restriction of movement came on the heels of advice received by the President from the Federal Ministry of Health and the NCDC, the two focal agencies in the fight against COVID-19.

“It therefore becomes obvious and clear that the restriction order is part of a national quarantine measure”.

“The correct position remains that the President acted legally under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN whose Long Title reads:

“An Act 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.

“It is not in doubt that COVID-19 is an infectious disease of a contagious nature which the President has rightly declared under Section 2 of the Quarantine Act to be a dangerous infectious disease.

“Section 3 of the Act enables the President to declare any part of Nigeria as an infected area. Section 4 of the Act further empowers the President to make regulations to prevent the introduction, spread and transmission of any dangerous infectious disease.

“Section 6 of the Act requires the President and State Governors to provide sanitary stations, buildings and equipment”.

According to Malami, “In recognition of the critical roles being played by the State Governors in these trying times, the federal government has been working with the States in line with the dictates of Section 6 of the Act.

“To this end, the federal government is providing a financial stimulus to the Lagos State Government in the sum of N10 billion and to the NCDC in the sum of N6.5 billion for the benefit of the entire 36 states and the FCT.

“I also wish to draw the attention of the public to the provisions of Section 8 of the Quarantine Act which clearly gives high precedence to the President above State Governors in responding to matters of public health,” he said.

The AGF said that no role is conferred on the State Houses of Assembly under the Act. Section 8 which reads thus:

“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 declaration and to make 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.

“The President has notified the concerned States and the total restriction of movement as ordered by the President has not been previously made or implemented in any of the affected areas (Lagos, Ogun and FCT).

“It is therefore erroneous and mischievous for anyone to claim that the President is usurping the powers of State Governors and State Houses of Assembly’’.

He said the foregoing is strengthened by the fact that Quarantine is one of the items under the Exclusive Legislative List under the 1999 Constitution which means that a State House of Assembly cannot legislate on it.

“The above notwithstanding, going by the doctrine of covering the field, the President did not violate any law.

“The provisions of the Quarantine Act above enjoy constitutional backing under Section 45(1)(a) of the 1999 Constitution being a law that is reasonably justifiable in a democratic society in the interest of public health.

“Furthermore, it is common knowledge that COVID-19 is a global pandemic that is crippling nations and economies, therefore, stringent measures at the national level are required.

“This is not a situation whereby the federal government is expected to wait for state governments to act first”.

Malami said that the International Treaties to which Nigeria is signatory, recognise the need to depart or derogate from fundamental rights.

“Especially freedom of movement obligations in deserving situations such as public health – see Article 4 of the International Covenant on Civil and Political Rights, Article 11 of the African Charter on Human and Peoples’ Rights.

“It is also remarkable to note that the President has so far acted in accordance with the executive powers of the Federation conferred on him under Section 5(1) of the 1999 Constitution (as amended) as well as the provisions of Section 14(2)(b) which provides that the security and welfare of the people shall be the primary purpose of government.

“In the same vein Section 20 of the 1999 Constitution (as amended) requires the State to protect the environment and safeguard the water, air and land of the country”.

The Justice Minister said that this is not the time for technicalities or legal theatrics rather it is a time to stay safe and stay alive.

“I therefore enjoin all persons, entities and authorities to ensure strict compliance with the restriction order and the exemptions thereto as issued by the President in the overall good of our people and dear nation,” he said.