Legal practitioner, Kayode Ajulo argues that President Muhammadu Buhari did the right thing in his COVID-19 broadcast to the nation
As the spate of the invasion of the deadly Coronavirus COVID-19 increases in geometric proportion, the President of the Federal Republic of Nigeria, on the 29thMarch, 2020 gave a presidential Address and reeled out measures to curtail the spread of the infectious pandemic which among others include the restriction of movement of persons and vehicles in the Federal Capital Territory, Lagos State and Ogun State for an initial period of 14 days from 11PM, 30th March, 2020.
No doubt the imminent measures taken by Mr. President has generated reactions from different quarters. Legal Practitioners, Political Pundits and other stakeholders have lent their voices on the legality or otherwise of the address of Mr. President.
Some persons have argued that the restriction of movement of persons as contained in Mr. President's Address is a violation of the fundamental rights to personal liberty and movement of persons as enshrined in Sections 35 and 41 of the 1999 Constitution.
The argument was stretched further that Mr. President ought to have followed the procedure as contained in section 305 of the Constitution by declaring a "State of Emergency" before making such a proclamation which ought to have been published in a Federal Gazette and addressed to the Senate President and Speaker of the Federal House of Representatives.
In the bid to justify and cloak the address of Mr. President with the garb of legality, the Attorney General has reacted by stating that the President need not declare a 'State of Emergency' and that the President derived its authority under the Quarantine Act. This argument is further fortified by the Regulation which was passed on the 30thof March, 2020 by the President.
In the circumstance, as a Legal Practitioner and passionate Right Advocate it therefore behooves on me to beam a searchlight on relevant provisions of the Constitution and other relevant statutes in order to pensively determine the legality or otherwise of Mr. President's declaration of 29thMarch, 2020.
Derogation of Fundamental Rights under the Constitution
While it is trite that the fundamental rights as contained in Chapter II of the 1999 Constitution of the Federal Republic of Nigeria (as amended) are inalienable, it is also clear that none of these rights are absolute. Conversely, the Constitution provides for instances in which the rights could be derogated from. In the circumstance, Section 45 of the Constitution is quite pungent and sacrosanct. It provides thus:
(1) Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom or other persons
(2) An act of the National Assembly shall not be invalidated by reason only that it provides for the taking, during periods of emergency, of measures that derogate from the provisions of section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extent that those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency:
Provided that nothing in this section shall authorise any derogation from the provisions of section 33 of this Constitution, except in respect of death resulting from acts of war or authoriseany derogation from the provisions of section 36(8) of this Constitution.
(3) In this section, a " period of emergency" means any period during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under section 305 of this Constitution.
A surgical dissection of the above provisions shows three instances whereby the rights as contained in section 37 to 41 could be derogated from, which are:
i. Where a Law that is reasonably justifiable in a democratic society provides for such derogation in the interest of defence, public safety, public order, public morality or public health; or
ii. for the purpose of protecting the rights and freedom or other persons
iii. Where there is a proclamation of a state of emergency by the President in exercise of the powers conferred on him under section 305 of the Constitution.
By the application of elimination method, the most relevant circumstance from the above in relation to the regulation of Mr. President would be the first instance which is: where a Law that is reasonably justifiable in a democratic society which in the instant is the National Centre for Disease Control and Prevention (Establishment) Act (2018).
Section 1 of the Act provides for the objectives of the Centre which among others include:
Development and coordination of capabilities, measures and activities to control outbreaks and mitigate the health impact of public health disasters;
Section 3(1) (a) of the Act also provides that the Centre shall-
Prevent, detect, monitor and control diseases of national and international public health importance, including emerging and re-emerging diseases.
See also section 4 of the Act.
It suffices to recall that the President in his Address of 29th March, 2020 had stated that his actions were based on the recommendations of the Federal Ministry of Health and the National Centre for Disease Control and Prevention(NCDC).
It therefore presupposes that flowing from the functions of the NCDC, the President as the Chief Executive officer can make a directive in order to curtail the spread of the disease without the need of declaring state of emergency.
On the Applicability of Quarantine Act
While it has been argued that the Applicable Law in the circumstance is the Quarantine Act, CAP 384 LFN 2004, however, a cursory perusal of the Act would reveal otherwise. it suffices to note that the intendment of the draftsman of this legislation wasn't to impede or restrict the movement of healthy persons but infected persons in a community.
On Applicable Punishment for Violation
There have been arguments from different quarters on the Applicable laws under which violators of the regulation and directives of Mr. President may be charge as some of argued that where there is no law, there cannot be a sin.
It is pertinent to make reference to section 247(b) of the Criminal Code Act which provides as follows:
Any Person who does any act which is, and which he knows or has reason to believe to be, likely to spread the infection of any disease dangerous to life, whether human or animal; is guilty of a misdemeanor, and is liable to imprisonment for six months.
It is therefore clear from the foregoing that anyone who violates the directives could be said to have done any act which is intended to spread the infection of the prevalent COVID-19.
From whatever angle of the compass the instant cause is considered, the most paramount thing to consider, viz-a-viz the provisions of the Constitution is the security, welfare, health and safety of the Nigerian Citizens at a time like this.