Attorney-General of the Federation and Minister of Justice has replied Mr. Ebun Olu Adegboru, SAN on his criticism of President Muhammadu Buhari’s proclamation on restriction of movement on account of COVID 19.
In his response, the Attorney-General of the Federation and Minister of Justice Abubakar Malami, SAN declared that Mr. Olu-Adegboruwa,SAN is wrong and misconstrued the law regards being had to community reading of Section 5, 14, 20 and 45 of the 1999 Constitution of the Federal Republic of Nigeria and Section 2, 6 and 8 of the Quarantine Act and Article 4 of the International Covenant on Civil and Political Rights and Article 11 on Human and Peoples Right which make the declaration by His Excellency the President, valid, legal and enforceable.
In a nationwide broadcast on 29th March 2020, President Muhammadu Buhari, GCFR as part of the national response to addressing the COVID-19 pandemic announced the restriction of movements in the FCT, Lagos and Ogun States. It is apt to refer to excerpts of the speech thus: “Based on the advice of the Federal Ministry of health and the NCDC, I am directing the cessation of all movements in Lagos and the FCT for an initial period of 14 days with effect from 11pm on Monday, 30th March 2020. This restriction will also apply to Ogun State due to its close proximity to Lagos and the high traffic between the two States…
The Governors of Lagos and Ogun States as well as the Minister of the FCT have been NOTIFIED. Furthermore, heads of security and intelligence agencies have also been briefed.” [emphasis added] Expectedly, Mr. President’s patriotic step taken above in overriding national interest has been subjected to attack for allegedly being illegal. Ebun Olu-Adegboruwa, SAN claimed that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly. I wish to note that he did not state any constitutional or statutory provision which the President has breached in the present circumstances.
It is important to inform the discerning members of the public that the President did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both House of the National Assembly. Even at that Section 305(6)(b) of the 1999 Constitution (as amended) permits a proclamation of a State of Emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down. The learned silk also goofed when he questioned the President’s powers to restrict movement and claiming that such powers can only be exercised by the State Governors and the respective State Assemblies. It is clear from the President’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious corona virus disease. The restriction of movement came on the heels of advice received by the President from the Federal Ministry of Health and the NCDC, the two focal agencies in the fight against COVID-19. It, therefore, becomes obvious and clear that the restriction order is part of a national quarantine measure.
The correct position remains that the President acted rightfully under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN whose Long Title read thus: “An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases”. It is not in doubt that COVID-19 is an infectious disease of a contagious nature which the President as rightly declared under Section 2 of the Quarantine Act to be a dangerous infectious disease. Section 3 of the Act enables the President to declare any part of Nigeria as an infected area. Section 4 of the Act further empowers the President to make regulations to prevent the introduction, spread and transmission of any dangerous infectious disease. Section 6 of the Act requires the President and State Governors to provide sanitary stations, buildings and equipment. Thus, in recognition of the critical roles being played by the State Governors in these trying times, the Federal Government has been working with the States in line with the dictates of Section 6 of the Act. To this end the Federal Government is providing a financial stimulus to the Lagos State Government in the sum of N10 billion and to the NCDC in the sum of N6.5 billion for the benefit of the entire 36 States and the FCT. I also wish to draw the attention of the public to the provisions of Section 8 of the Quarantine Act which clearly gives high precedence to the President above State Governors in responding to matters of public health. No role is even conferred on the State Houses of Assembly under the Act. Section 8 provides thus:
“If and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, 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.”
The President has notified the concerned States and the total restriction of movement as ordered by the President has not been previously made or implemented in any of the affected areas (Lagos, Ogun and FCT). It is therefore erroneous and mischievous for anyone to claim that the President is usurping the powers of State Governors and State Houses of Assemblies. The foregoing is strengthened by the fact that Quarantine is one of the items under the Exclusive Legislative List under the 1999 Constitution which means that a State House of Assembly cannot legislate on it. The above notwithstanding, going by the doctrine of covering the field, the President did not violate any law.
The provisions of the Quarantine Act above enjoys constitutional backing under Section 45(1)(a) of the 1999 Constitution being a law that is reasonably justifiable in a democratic society in the interest of public health.
Furthermore, it is common knowledge that the COVID-19 is a global pandemic that is crippling nations and economies, therefore, stringent measures at the national level are required. This is not a situation whereby the Federal Government is expected to wait for State Governments to act first. International Treaties to which Nigeria is signatory to recognizes the need to depart or derogate from fundamental rights (especially freedom of movement) obligations in deserving situations (such as public health) – see Article 4 of the International Covenant on Civil and Political Rights, Article 11 of the African Charter on Human and Peoples’ Rights It is also remarkable to note that the President has so far acted in accordance with the executive powers of the Federation conferred on him under Section 5(1) of the 1999 Constitution (as amended) as well as the provisions of Section 14(2)(b) which provides that the security and welfare of the people shall be the primary purpose of government. In the same vein Section 20 of the 1999 Constitution (as amended) requires the State to protect the environment and safeguard the water, air and land of the country.
This is not the time for technicalities or legal theatrics rather it is a time to stay safe and stay alive. I therefore enjoin all persons, entities and authorities to ensure strict compliance with the restriction order and the exemptions thereto as issued by the President in the overall good of our people and dear nation.
ABUBAKAR MALAMI, SAN
Hon. Attorney General of the Federation
And Minister of Justice