There is no gain say the fact that the Covid 19 pandemic has led to consequential adjustments in diverse ways all over the world since it first broke out in the city of Wuhan, China, in December 2019, and also poses a great challenge to public health.
Several measures aimed at containing the spread of the virus were taken by both the federal government, and the state governments. Chief among these steps is the restriction of movement both inter and intra state, and later on, the imposition of a curfew on the nation by the President.
With the restriction of movement, questions have been asked on the legality or otherwise of government action, bearing in mind, the extant laws, particularly, the Constitution of the Federal Republic of Nigeria, 1999 and the Quarantine Act, Cap Q2, LFN, 2004.
However, in what appears to be a response to the above question, several state governments issued what is now known as the COVID 19 Regulations 2020, and in this case, the Plateau State Executive Order 1,2,3,4,5 and 6 2020 with a view to prevent, control and contain the pandemic in the state.
The restriction of movement has left grave impacts on the citizenry, including hunger, loss of lives in the hands of security agents, domestic violence and abuse, forceful quarantine and even conviction by mobile courts..
A common approach to the containment of the pandemic is the requirement of social distancing and restriction of movement. These measures, though global in nature and have arguably proved effective, have implications on the fundamental right to freedom of movement, right to freedom of assembly and association and right to freedom of religion. (Section 38, 40 and 41 CFRN, 1999, as amended). These rights are fundamental because they are consistent with our being as humans and to deny them is to relegate our status to ordinary animals.
Nevertheless, fundamental rights are not absolute. They may be derogated from in deference to the rights of other citizens or for overriding public interests. ( Section 45(1) CFRN, 1999. Thus, it is justifiable for a right to be infringed upon if it’s clearly set out in a law that is justifiable in a democratic setting.
Another measure put in place is the trial and conviction by mobile courts. A mobile court is a special court that sits in an unconventional place for the purpose of enforcing the provisions of statutes. A court is not the building, but rather the judicial officer properly appointed and has taken the oath of office. It is enough, provided the officer possesses both territorial jurisdiction and jurisdiction over offences tried.
Between the 10th and 20th May, 2020, about 225 persons were tried and convicted in Mangu LGA and accordingly sentenced to either quarantine, community service or the payment of fine.
The pertinent question to ask is whether the Plateau State House of Assembly created offences that confer on the mobile courts the jurisdiction to act in such manner. This is very important in view of Section 36(12) of the Constitution which provides that a person shall not be convicted of a criminal offence unless the offence is defined and the penalty thereof prescribed in a written law. A written law is an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provisions of a law. Under Section 36(8), ‘no person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence….’
In enacting Executive Order 6, Governor Simon Lalong relied on Sections 2,4 and 8 of the Quarantine Act. The Act empowers the President, and failing the President, the governor of a State to make regulations for the purpose of regulating the imposition of quarantine and preventing the introduction into and spread in Nigeria, and transmission from Nigeria, of infectious diseases ( see Preamble to the Act and Section 4).
The following are the fundamental requirements for invoking the provisions of the Act;
- The disease sought to be controlled must be declared as a ‘dangerous infectious disease (section 2 Q.A)
- The place within the country or state in which the Act or the regulation made under is to apply must be specifically declared ‘an infected local area.’ (Section 3 Q.A)
- Any regulations made pursuant to section 4 of the Act must apply within an infected local area’ so declared by the president or governor by notice.
From the above provisions which give the president or governor the power to declare any place to be ‘an infected local area,’ for any regulations made therefore to have effect in place without first identifying such a place as ‘an infected local area’ by declaration cannot have effect on any such place. As such, any enforcement of the regulations is an infringement on the constitutional and legal rights of such people.
MAJOR FLAWS IN THE EXECUTIVE ORDERS 1,2,3,4,5 AND 6 OF PLATEAU STATE
- No declaration of a dangerous infectious disease
- no local area was defined
- non declaration of an infected local area
- non creation of offences to support the punishment already created under section 5 the Quarantine Act.
From our analysis so far, the Executive Orders made by the Plateau State government in an effort to contain the spread of COVID 19 are tainted with an inherent defect that takes them away from the true intendment of the Quarantine Act. Therefore, any action taken in furtherance of the said Orders cannot have the constitutional legs to stand.
Manang Jabbe, ESQ