The COVID-19 outbreak is a human tragedy and has a growing impact on the global economy, therefore, it requires no magnifying glass to see that the Quarantine Act of 1926 being an existing law and deemed to be an Act of the National Assembly, is reasonably justifiable in a democratic society in the interest of public health by virtue of Section 45 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (amended). By Section 3 of the Quarantine Act, the President is empowered to declare by notice, any place whether within or without Nigeria to be an infected local area, and thereupon such place shall be an infected local area. Whilst Section 5 hath made provisions for penalties against any person contravening any of the regulations made by the President under the Act to be liable to a fine of N200 or to imprisonment for a term of six months or to both, the preceding Section 4 hath empowered the President to make the regulations (supra), for all or any of the following purposes –
(a) prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;
(b) prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place is an infected local area or not;
(c) preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria;
(d) preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;
(e) prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
(f) fixing the fees and charges to be paid for any matter or thing to be done under such regulations, and prescribing the persons by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such regulations shall be borne, and the persons from whom any such expenses incurred by the Government may be recovered;
(g) generally for carrying out the purposes and provisions of the Act.
But Section 8 hath provided most clearly and unambiguosly for the States to exercise quarantine powers, id est, if and to the extent that any such declaration under section 2 or 3 or the Act has not been made, and to the extent that regulations under section 4 of the Act have not been made by the President, then 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. This is not surprising therefore as issues of quarantine come directly under item 54 of the Exclusive Legislative List of the Constitution of the Federal Republic of Nigeria which means that a State House of Assembly cannot ordinarily legislate on it.
Now, a communal reading of Sections 3 4, 5 & 8, alongside its subsidiary legislations but not limited to Section 45 (1)(a) of the Constitution of the Federal Republic of Nigeria, 1999 (amended) would leave no one in doubt that that mere declarations made either by the President or State Governors without more cannot in law be ‘preventing’ the spread of any dangerous infectious disease (in the instant case COVID-19) from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria, without consequent infringements upon the fundamental rights of the Nigerian people.
The most pertinent question therefore becomes, how can the declarations made either by the President or Governor be lawfully enforced? The use of force or coercion will require a regulation or prescription made pursuant to the Quarantine Act since the President and Governors are indeed so empowered to make such regulations or prescriptions. Thus, it is only the regulations made pursuant to the Section 4 of the Quarantine Act that will give the executory teeth or the required legal impetus to any such declarations made in pursuance to Section 3 of the Act thereof. Anything short of this defeats the spirit of the law and the constitution, and I dare say without any equivocation that any such declaration made without a concomitant regulation (prescription) thereat is null, void and of no legal effect whatsoever, and if the President or State Governors by virtue of Sections 3 or 8 of the Act, exercises such powers to issue any declaration that adversely affects the fundamental rights of the citizens, then, such exercise is self-aggrandizing and unconstitutional.
I wish to make this observation as cursory as possible without considering a legion of legal authorities, in view of the inexorable fact that many State Governors have not signed the COVID-19 (Emergency Prevention) Regulations, 2020 Bill into law.
It must be borne in mind that the Freedom of Movement which is a fundamental right guaranteed by Section 41 of the constitution cannot be abridged or circumscribed by mere declarations of the President or the State Governors save through a ‘regulation’ made pursuant to Section 4 of the Quarantine Act of 1926.
KeneChukwu Okeke, MCSD; M. Juris (Oxford). National Coodinator, Good Governance Initiative.
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