Breaking the ice
Dear Learned Silk,
I have read with great interest your post/publication dated 31 March 2020 where you sought to respond to the Statement of the Honourable Attorney-General of the Federation and Femi Adesina. In the piece, Learned Silk, Sir, you attempted to justify why the Quarantine Act of 1926 cannot legalise restriction of movement by the President of the Federal Republic of Nigeria. I have carefully reviewed your position on this matter and now write this piece in response; with a view to putting things in better legal perspective for posterity sake, while taking into account the long-lasting rule of Supremacy of the Constitution that have been echoed through a plethora of cases by the Supreme Court of Nigeria.
While I have been a great fan of your outstanding thought leadership, commendable activism as well as sound legal scholarship geared towards deepening our growing jurisprudence for years now, I am quite afraid, Distinguished Learned Silk, and with greatest respect, that you may have spoken too soon and quite erroneously so on this very issue, Sir.
First, I should mention that I do not hold brief for the Federal Government of Nigeria (FGN). In fact, those who know me quite well can attest to the fact that I have been a highly vocal and public critic of the President Muhammadu Buhari (PMB) led FGN. Of course, I am aware of PMB’s numerous violations of constitutional rights as well as different cases of human rights violation in times past. I can never forget how he ridiculed some of the well-respected members of the Nigerian Bench using the instrument of the State Security Service (SSS). It may interest you to know, Learned Silk, Sir, that I have heavily condemned his many sins of flagrant disobedience of the rule of law, disrespect for the independence of the judiciary and abuse of fundamental rights, at different times in the past.
The foregoing notwithstanding, it is my candid view that PMB, despite taking too much time before doing the needful further to the call of most Nigerian Citizens particularly on social media, acted quite rightly and within the ambit of the law in this particular regard. I shall now provide to provide the reason for my position in the succeeding paragraphs, drawing heavily from the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) (the ‘Nigerian Constitution’), relevant statutory provisions (including the Quarantine Act), subsidiary legislation and case law.
Supremacy of the constitution
As a preliminary remark, a cursory review of Section 1 (1) of the Nigerian Constitution will reveal that the provisions of the Nigerian ‘Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.’ By the same breath, Section 1(2) of the Nigerian Constitution equally provides that The Federal Republic of Nigeria shall only governed in accordance with the provisions of this Constitution. Similarly, Section 1(3) of the Nigerian Constitution stipulates that ‘If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.’
It is well settled that the legal implication of the combined reading of Section 1(1-3) of the Nigerian Constitution is that the Nigerian Constitution is supreme and binding on all persons as well authorities. It is clear that all other statutes derive their authority from the Nigerian Constitution and as such, it only accords with good reason to find out what the position of the Nigerian Constitution is on this issue.
While it is conceded that the legislative powers of the Federal Republic of Nigeria lies with the legislature as provided for in Section 4 of the Nigerian Constitution, it is my contention that the Nigerian Constitution does has expressly provided for instances when constitutional rights can be derogated from. Notably, it is equally my view that the FGN acted well within the constitutionally recognised exception(s) in this regard. I shall make my reason(s) known shortly.
Constitutional right to freedom of movement: A right without exception(s)?
Learned silk, I do agree with you that Section 41 (1) of the Nigerian Constitution, which provides for the right of every Nigerian citizen to move freely throughout Nigeria and to reside in any part thereof is in not dispute. I equally do not dispute the provision of Section 41(2) of the Nigerian Constitution, which provides that ‘Nothing in subsection (1) of this section shall invalidate ANY LAW THAT IS REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY…’ [Emphasis mine].
The foregoing notwithstanding, Sir, I am aware that the instances when the certain constitutional rights can be derogated from as provided for in Section 45 (1) of the Nigerian Constitution. These instances include ‘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.
It is further my considered view that PMB can plead any of the above listed instances, particularly, those relating to PUBLIC HEALTH, PUBLIC SAFETY, PUBLIC ORDER AND PROTECTION OF THE RIGHTS OF OTHER NIGERIAN CITIZENS as reasonable enough to warrant the SUBSIDIARY LEGISLATION duly enacted pursuant to the donated powers from the National Assembly of the Federal Republic of Nigeria.
Distinguished Learned Silk, it is equally my contention that PMB acted legally and well within the ambit of the Nigerian Constitution, further to the delegated power conferred on him by the federal lawmakers in sections 3 and 4 of the Quarantine Act. As you would rightly know, Sir, it is a settled principle of law that subsidiary legislation must have the force of law. Further to section 10 (1) of the Interpretation Act, ‘Where an enactment confers a power or imposes a duty, the power may be exercised and the duty shall be performed from time to time as occasion requires.’ Furthermore, Section 10(2) of the Interpretation Act provides that ‘An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of it.’ It is, therefore, my view, taking the foregoing into account that PMB acted well within the ambit of the extant legal framework in Nigeria and constitutionally so. Notably, the Court of Appeal in Njoku & Ors v. Iheanatu & Ors has defined a subsidiary legislation as ‘one that was subsequently made or enacted under and pursuant to the power conferred by the principal legislation’ and further heled that a subsidiary legislation ‘derives its force and efficacy from the principal legislation.’
Based on the foregoing, it is my submission that it cannot be correct to argue, as you did in Paragraph 6 that ‘The Quarantine Act does not contain any provision expressly authorising the restriction of movement of citizens.’ I also believe it is quite erroneous to have submitted as you did in paragraph 5 that ‘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.’ Furthermore, it is my contention that you erred and grossly so in law, when you tagged the COVID-19 Regulations, 2020 issued by PMB as ‘mere executive regulation’ despite same being a DULY ENACTED SUBSIDIARY LEGISLATION WITH FULL FORCE OF LAW! As you would know, Learned Silk, Section 37 of the Interpretation Act defines ‘’subsidiary instrument’ to include ‘any order, rules, regulation, rules of court, bye laws made…in exercise of powers conferred by an act.’ It is my position that the COVID-19 Regulations, 2020 issued by PMB has the full force of law.
In any event, Sir, it is equally my opinion that PMB could have also exercised other different constitutionally recognised options given the times we are. I hope to explore the other constitutional options in my next publication. Nonetheless, the option PMB settled for can still be legally defended before a court of competent jurisdiction if need ever be.
I have carefully reviewed Section 45(1) of the Nigerian Constitution referenced in Paragraph 4 of your post and I have concluded, considering the foregoing submission, that the COVID-19 Regulations, 2020 are reasonably justifiable in our democratic society. The test of reasonability here is not the subjective one but the objective man’s test. The question then is – Would a reasonable man, taking into account all the recent global events come to the decision that the law made is justified?
Learned Silk, I am of the view that the instances where the freedom of movement can be derogated from in the interest of public health, public safety and public order, have been reasonably met in this instance. This point becomes more glaring when one takes into taking into account the growing number of persons affected by COVID and the COVID related deaths reported thus far.
Finally, Learned Silk, COVID-19 Regulations, 2020 deserves the full support by all relevant stakeholders, given the crucial role it plays in protecting public health, public safety and public order at this very critical time.
Please note Sir, that I shall continue my legal arguments in the next publication.
For the time being, however, Learned Silk, please do accept the assurances of my highest esteem.
Joseph Onele
Joseph Onele Esq. LLB (First Class, Ibadan) PDG (Aberdeen, UK); Doctoral Candidate, Adelaide Law School, The University of Adelaide, South Australia (Senior Team Lead, Primus Grace LP, Nigeria).
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