Can An Offender Be Convicted Under The Lagos State Infectious Diseases Regulations Or Other States’ Regulations. Daily Law Tips (Tip 544) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
Nigeria recoded it’s first criminal conviction on social distancing for prevention of Coronavirus (COVID-19) in April 2020. In the city of Lagos, a couple were recently charged, prosecuted and convicted for breaching public health sanctions. The legal community has been greatly divided on the propriety of their conviction and sentencing as well as the presence of numerous people in the court room contrary to social distancing protocols. Further, many writers and onlookers have questioned the legality of the Lagos State Regulations and the powers to convict an offender based on the Regulation. However, any law/regulation is deemed legal and binding unless a court says otherwise.
POWERS OF THE PRESIDENT AND THE GOVERNORS UNDER QUARANTINE ACT:
The greatest of all Laws governing prevention and management of dangerous infectious diseases in Nigeria, is the 94 years old federal law, titled; Quarantine Act of 1926. The Quarantine Act empowers the President of Nigeria to make declarations and Regulations for prevention and management of dangerous infections diseases. However, the Quarantine Act allows any state Governor to make such delecaraion and Regulation for his state, where the President fails to do so. Hence, both the President and the Governors have powers under the Quarantine Act, provided that the powers of a Governor to make Regulation ceases immediately the President exercise his own powers. Furthermore, by the provisions of the Quarantine Act, the Governor of a State has the duty to provide for the management of dangerous infectious disease in his state and provision of sanitary materials within his state. This ensures that at all times, Governors have statutory roles in their states over dangerous infectious disease.
DOCTRINE OF “COVERING THE FIELD” AND THE LAGOS STATE REGULATION:
By the way, where a Governor makes a Regulation under the Quarantine Act ahead of the President’s Regulation under the same Quarantine Act, the Quarantine Act is silent on the faith of the Regulation made by a Governor. Can such Regulation exist side by side with the Regulation made by the President, complementing that of the President. By the principles of “Covering the Field”, where a federal law/regulations adequately covers a subject matter, any state law/regulation on same subject matter is suspended but where such state law is inconsistent with the federal law, the state law is nullified. A look at the Lagos State Regulations and the Federal government’s COVID-19 Regulations, one will agree that the Federal Regulation has not adequately covered the subject matter rather created enormous gaps (like, failure to provide for; prevention strategy, management protocols, criminalisation of price inflation and essential goods hoarding as well as communication system) sought to be filed by the Lagos State Regulations. Hence, under the Doctrine of Covering the Field, the Federal Regulation will not suspend and halt the Lagos State Regulation since the Federal Regulation has not covered the field (subject matter on prevention and management of COVID-19) give room for the Lagos State Regulation to do so. The Lagos State Regulation is valid and supplemental to the COVID-19 Regulations of Federal Government.
LEGALITY OF LAGOS STATE INFECTIOUS DISEASES REGULATIONS, 2020:
The first state in Nigeria to record COVID-19 case is Ogun state and the patient was immediately transferred to Lagos State same day on 27 February 2020. Lagos State (former Capital of Nigeria) is the busiest city in Nigeria with the highest number of international flights and highest risk of COVID-19. Lagos State has the most proactive state governemnt and institutions. Leading in the fight against COVID-19 (even ahead of the entire Nigeria), Lagos State made Regulations before the President of Nigeria could address the nation and make federal regulations. The Governor of Lagos State, exercised his powers under the Quarantine Act ahead of exercise of same powers by the President of Nigeria. The Lagos State Governor made the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 on 27 March 2020. Days after, the President of Nigeria, made the COVID-19 Regulations of 2020 on 30 March 2020. It must be mentioned that the Governor of Lagos State, not only relied on his powers under the Quarantine Act but also on his powers to make Regulations under the Lagos State Public Health Law. It must be mentioned that the powers to make Regulations under the Lagos State Public Health Law is vested on the Commissioner of Health (who is an appointee, agent and representative of the Governor of Lagos State, holding office to the pleasure of the Governor (Master), hence the Governor can exercise such powers, too.
The Lagos State Regulation is valid having been made in the face of a pandemic by the statutorily approved person (Governor of Lagos state) in exercise of his powers under the Quarantine Act ahead and before (about 3 days before) exercise of same powers by the President of Nigeria. If the Governor of Lagos State had made the Regulations after the declaration and Regulations made by the President of Nigeria on 30 March 2020, then the fate of the state Regulations may unstable and not firm. Arguably, the Governor of Lagos State would have still made such Regulation after that of the President without relying on the Quarantine Act but on the Lagos State Public Health Law. Consequently, the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 is lawful, legal, valid and binding on all persons in Lagos State.
PURPOSE AND POWERS OF GOVERNMENT REGULATIONS:
Having established that the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 is lawful, the next issue is whether a court can convict an offender under a Regulation. Ahead of an answer, very vital foundation must be properly laid. The Federal Legislature (The National Assembly) and the State Legislatures (Houses of Assembly) are constitutionally saddled with the responsibility of making laws for entire Nigeria and states in Nigeria, respectively. However, the Constitution of Nigeria as well as the Acts and Laws in Nigeria, also allow the executive arm of government both at the Federal and State levels, to make Regulations and Rules that assist in the execution and implementation of the Acts and Laws already made by the parliaments. So, for administrative convenience, the law makers (legislative arm) in the laws they make, often give quasi-legislative powers to the executive arm (like, the President, Federal Ministers, Head of Federal Parastatals, Governors, State Commissioners and Head of State Parastatals) to make Regulations and Rules towards effective and efficient implementation of existing laws. Through quasi-legislative powers (partial/limited/seeming and make shift legislative powers) delegated to the executive arm of government by the legislative arm over specific issues, the executive arm steps in and fills gaps for the legislative arm. Such powers cannot be assumed or forcefully taken, rather must be clearly provided, delegated and vested on an officer or office of the executive arm by law made by the legislative arms. As expected, such delegated quasi-legislative powers can not be sub-delegated.
CONVICTION UNDER THE LAGOS STATE REGULATION:
From the preceding paragraph, it is very clear that the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 is a subsidiary legislation/law made pursuant to two enabling laws; Quarantine Act and the Public Health Laws of Lagos State. The provisions of the Lagos State Regulations is subservient to the enabling/parent laws and has powers to enjoy and enforce the sanctions (punishments and penalties) provided in the Regulation itself or in its enabling/parent laws. Cleary, the Lagos State Regulations provides for conviction of offenders violating its provisions. For sentencing/punishment, the Regulation does not provide any specific sanction/punishment rather provides that sanctions will be fines and or imprisonment provided in extant laws (existing laws). The extant laws referred to by the Regulations are the Quarantine Act, the Public Health Laws of Lagos State and any other existing law. The punishment under the Quarantine Act are fine of Two Hundred Naira (N200.00) and or imprisonment for six (6) months. Punishment under the Public Health Laws of Lagos State for an individual offender are fine of One Hundred Thousand Naira (N100, 000.00) or a non-custodial sentence but for for corporate body, the punishments is fine of Five Hundred Thousand (N500, 000.00). Note that, where there are two or more laws under which an offender can be convicted and sentenced (punished), the court can choose only one law among the laws to sentence an offender.
OTHER STATES’ REGULATIONS:
Whatever applies to the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 also applies to any other Regulation made by any other state in Nigeria, pursuant to the Quarantine Act or any State Law operational in such state. Regulations are generally subsidiary legislation having the force of law and can punish offenders.
Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020, is a subsidiary/subordinate legislation with the full force of law. It binds all persons (human beings and corporate beings) and places in Lagos. Hence, offenders can be prosecuted, convicted and sentenced under the said Regulation. Generally, where a Federal or State Regulation is made subject to existing Federal or State legislation, such Regulation becomes law and offenders can be convicted under such Regulations.
The writer is not unaware of COVID-19 pandemic and governments interventions to end it. The security and welfare of the good people of Nigeria are the primary purpose of government, however government must be lawful and law abiding in achieving such purpose. It is advised that constitutional procedures and statutory processes be engaged at all times to avoid causing more problems in attempting to solve COVID-19. We must conquer COVID-19 without violating fundamental human rights of persons in Nigeria rather lawfully restricting such, where necessary. Stay at Home and Stay Healthy.
1. Sections 1, 4(3), 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 305, of the Constitution of the Federal Republic of Nigeria, 1999.
2. Item 54 of the Exclusive Legislative List, Second Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria, 1999.
3. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act of 1926.
4. Sections 11, 12, 17, 18, 25 and 39 of the Interpretation Act
5. Provisions of the COVID-19 Regulations 2020.
6. Regulations 1, 2, 3, 6,7, 8 and 17 of the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020.
7. Sections 53 and 58 of the Lagos State Public Health Law, Cap Ch. P16, Laws of Lagos State 2015.
8. Supreme Court judgment in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. GUSAU (2017) LPELR-42081(SC)
9. Supreme Court judgment in the case of OMATSEYE v. FRN (2017) LPELR-42719(CA)
10. Supreme Court judgment in the case of INEC v. MUSA (2003) LPELR-24927(SC)
11. Supreme Court judgment in the case of AMUSA v. STATE (2003) LPELR-474(SC)
12. Supreme Court judgment in the case of GOVERNOR OF OYO STATE & ORS v. FOLAYAN(1995) LPELR-3179(SC)
13. Supreme Court judgment in the case of OSADEBAY v. AG BENDEL STATE (1991) LPELR-2781(SC)
14. Court of Appeal judgment in the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84
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