(Being a response to the statement of the Honourable
Attorney-General of the Federation and Mr Femi Adesina)
1. The
Quarantine Act has no provision for the restriction of the movement of any
citizen. A fundamental right expressly granted by the constitution cannot be
taken away by assumption, inference or deductions.
2. Section 41
(1) of the 1999 constitution expressly donates freedom of movement to all
citizens and it cannot be taken away by way of executive proclamations or
regulations, as an executive regulation cannot in law take away a fundamental
right granted by the constitution.
3. The
Quarantine Act of 1926, as its name and provisions connote, is meant for the
isolation, care and treatment of victims of infectious diseases simpliciter,
for the purpose of isolating them away from interacting with other members of
the public, generally. A law enacted for the benefit of those not infected by
any disease cannot and should not be twisted to restrain them.
Origin and scope of quarantine
The practice of quarantine evolved in or about 1423 in
Venice, which had a quarantine station on an island to check the growth of
diseases brought by ships, by isolating and detaining ships containing persons
or animals suspected of having or carrying a dangerous communicable disease. To
this end, ships arriving in Venice from infected ports were required to sit at
anchor for 40 days before landing. Quarantine is thus derived from the Italian
words quaranta gioni, which means 40 days.
A regulation made under and pursuant to quarantine is never
to be extended to abridge extant fundamental rights declared under the
constitution. Indeed, such regulation must not be in conflict with any
subsisting legislation, such as section 41 of the constitution, granting
freedom of movement. Without any doubt, the President cannot rely on the
Quarantine Act as the basis for seeking to restrict the movement of citizens,
being a fundamental right guaranteed under section 41 of the constitution.
The manifest illegality of regulations made by President
For the President to be entitled to make any regulation
under sections 4 and 8 of the Quarantine Act, he must have complied with the
conditions precedent laid down in sections 2 and 3 of the said Act, namely
that:
(i) the President
must first make a declaration of an infectious disease, by a notice duly
published in the Official Gazette, stating such to be an infectious disease
within the meaning of the Quarantine Act. That has not been done, making the
regulation made by the President to be inchoate and premature. For instance, in
the first subsidiary legislation contained in the Schedule to the Quarantine
Act, a declaration was made concerning Sleeping Sickness, to be a dangerous
disease within the meaning of the Act.
(ii) in addition
to the above, the President must also make another declaration, by notice in
the Official Gazette, stating the particular place affected as an Infected
Local Area and such must be a well-defined area, such as a local government, a
town or a community, and not just a blanket tag. This has not been done. How
then do we lockdown citizens and detain them forcefully for two weeks, in one
single spot, without any charge or offence alleged against them?
The only regulation so far made under the Quarantine Act is
the Quarantine (Ships) Regulations of December 4, 1968, containing 28 sections
and 8 Schedules. There is no single provision therein, restricting the movement
of persons. This is because the practice of quarantine has nothing to do with
restricting movement of persons but rather to isolate those carrying infectious
diseases. So, even under the Quarantine Act, the President has acted illegally.
4. The
conditions for interfering with the fundamental right of movement are as stated
in section 41 of the constitution itself or in section 45 (1) thereof, the
latter prescribing a “…. a law (not regulation or presidential broadcast) that
is reasonably justifiable in a democratic society.” The President cannot by
mere executive regulation, take away the freedom of movement, expressly granted
under the Constitution. In any event, the regulations anticipated under
sections 4 and 8 of the Quarantine Act are limited to those infected with
infectious diseases for the purpose of their guarantine.
5. There is
nowhere in sections 4 or 8 of the Quarantine Act that it is stated or
anticipated that the President or governor could make regulations for the
restriction of movement of persons on account of infectious diseases, against
persons not so infected. Regulations in relation to quarantine are always
limited to the infected persons.
6. Laws
purporting to infringe upon or derogate from the fundamental rights of citizens
must be express, explicit, unambiguous and not subject to personal
considerations and permutations, to prevent abuse. The Quarantine Act does not
contain any provision expressly authorizing the restriction of movement of
citizens and such power must not and cannot be assumed by the President.
7. For the
President to seek to restrict the movement of citizens, he must act under a law
that expressly permits him to so do, not by implication, as he has purported to
do under the Quarantine Act. In a proper federation, it is inappropriate for a President
to take over the affairs of any State within the federation, without the input
of the governor and the House of Assembly of that State. In Lagos State, the
governor had already introduced measures to curtail the spread of COVID 19,
without violating the right to freedom of movement. In Ogun State, the governor
eventually postponed the President’s proclamation to April 3, 2020, on the
ground that the people of the State were not prepared for the lockdown, whereas
Mr. Femi Adesina claimed that it took effect from March 30, 2020. In another
breadth, the Honourable Minister of Finance later claimed to have secured
approval to exclude certain financial transactions from the lockdown. There
should have been meaningful consultations before the President’s proclamation.
8. Section 305
(3) (d) of the constitution permits the President to declare a state of
emergency in any part of Nigeria through an instrument published in the
official gazette when “there is an occurrence or imminent danger, or the occurrence
of any disaster or natural calamity, affecting the community or a section of
the community.” The COVID 19 pandemic qualifies an imminent danger, a disaster
and a natural calamity. The President should have explored this window for his
declaration.
9. Where the
President declares a state of emergency under section 305, he must transmit a
copy of the official gazette to the National Assembly to pass a resolution for
its approval or rejection. Such declaration will cease to have effect if after
two days of the National Assembly being in session or after ten days its being
out of session, it is not approved by the National Assembly through a
resolution.
10. We cannot take
away the fundamental rights of citizens through
executive proclamations made on the altar of some exigency or
self-induced necessity, as the President had enough time since COVID 19 broke
out, to have taken all reasonable steps within the law, to address it.
I must state that I am not opposed to the steps taken by the
President and some governors, to address the COVID 19 pandemic. I align myself
totally with these measures for the safeguard of citizens; however, my primary
concern is not to resort to a violation of the constitution under the guise of
exigency, as that could well be a dangerous signal for perpetrating illegality,
even in the time of peace.
It gladdens my heart greatly, that the Honourable
Attorney-General of the Federation, Mr Abubakar Malami, SAN, is making very
copious references to international protocols to support the breach of the
fundamental rights of citizens, hoping well that when we seek to rely on these
same protocols to enforce fundamental rights in future, they will not become
foreign laws of western nations.
I therefore humbly urge the President to do the needful by
approaching the National Assembly and the States concerned, to harmonize his
actions with the laws of our land, failing which all lovers of the rule of law
should brace up to challenge this constitutional breach in court, when we have
been fully delivered from the compulsory lockdown.
God bless Nigeria.
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