With the Coronavirus (COVID-19) pandemic, there is a climbing death rate across the world. As expected, the most populous black nation is not left out. For obvious reasons, Lagos State is the theatre of war against COVID-19. Lagos State is recording recoveries as well as deaths. Generally, as at today (22 April 2020), Nigeria has recorded 28 deaths and 197 recoveries. Since COVID-19 infected corpses can infect people, the management of such corpses is now a government affair. However, people are not willing to leave the remains of their loved ones for government to direct on disposal procedures, unless there are sanctions(punishments) for offenders. The big question is, does Nigeria or any state in Nigeria have a law/regulation on management (transportation, storage and disposal) of corpses of COVID-19 patients?
Laws in Nigeria are made by the National Assembly for the entire country while Houses of Assembly in the 36 states of Nigeria make laws for their respective states. Federal Laws and State Laws often delegate some law-making powers to executive government for efficient implementation of laws. So, in exercise of such delegated law-making powers (quasi-legislative powers) the executive arms of government (like, the President, Federal Ministers, Heads of Federal Parastatals, Governors, State Commissioners and Heads of State Parastatals) make Executive Orders, Regulations and Rules for effective and efficient implementation of existing laws. Consequently, Executive Orders, Regulations or Rules legally made by an executive government are binding Laws.
Government’s television/radio comments, policy documents/broadcasts, social media posts or pubic threats and pleas of President, Governors, ministers, commissioners or their agents are not law or regulations. This includes policy guidelines of government offices, agencies, parastatals and commissions. At best, such threats/pleas are mere policy guidelines/directions. The Supreme court of Nigeria has warned that policy guidelines of government are not laws. When government is serious with a policy guideline and wants the force of law and compliance, it will turn its policy guideline into a Regulation.
For prevention and management of dangerous infectious diseases, like COVID-19, Nigeria has a federal law (Quarantine Act). The law was made since 1926 and provides duties of separate stakeholders in the prevention and management of public health crisis. By virtue of the provisions of the Quarantine Act, the Lagos State Governor made the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 on 27 March 2020. Sequel to powers under the Quarantine Act, 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. Some other states across Nigeria, have made State Regulations to combat COVID-19.
The federal regulation on COVID-19 (COVID-19 Regulations) does not make provision for the management, transportation, storage and disposal of remains of COVID-19 patients. As a matter of fact, this regulation is very scanty and seems to be a reproduction of the first national address of the President of Nigeria on COVID-19. A lot of issues are left unaddressed, thereby creating room for speculations and mere policy guidelines from the COVID-19 prevention stakeholders. The Federal Government must rise up and be proactive by creating adequate legal framework via easy to make regulations to protect health workers, guide the public and ensure public order, safety and strategic prevention of COVID-19.
The Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 made an attempt on the issue but merely stated that the Governor has powers to determine the manner for managing such corpses. This creates the assumption that the Governor will in another Regulation or Order specifically specify the manner for disposing such corporates. However, it is not impossible, that it was designed for the Governor to determine such manners on a case by case basis (the legality of such approach is questionable). However, the Lagos State Regulation is in every shade better than that of the federal government, although the draftsman left some stones unturned. Hence, the Lagos State Government is encouraged to make specific regulations for management of corpses of victims of COVID-19.
By the way, no state regulations of any other state is known to have handled this issue. However, the writer is not unaware of the efforts of Nigeria Center for Disease Control (NCDC), including making of guidelines for such issues, among others. Unfortunately, executive orders, regulations, rules and bye-laws are also laws (subordinate legislation) but Policy Guidelines are not Laws. Such guidelines have no power of law and as such their violators cannot be charged for any offence. Offence cannot be created by or through any policy guideline rather can only be created via laws, regulations, rules or bye-laws.
NCDC has made over ten (10) guidelines on COVID-19. The guidelines are designed to stop and prevent the spread of COVID-19, guide health works and the general public on best practises. Unfortunately, the guidelines are merely advisory and not compulsory. They lack the force and weight of law, so health workers, government and the entire public can decide to pick or drop any of the guidelines.
Hence, government is advised to collaborate with NCDC and ensure that some of the NCDC guidelines are adopted and turned into COVID-19 Regulations. Once selected NCDC guidelines are turned into Regulations, government will have legal grounds to arrest and charge offenders to court and punish them accordingly based on the regulations. The NCDC on its own with the approval of the Minister for Health has powers to make regulations and issue guidelines to protect Nigerians from the impact of communicable diseases of public health importance like COVID-19. Also the Minister for Health can give directives to the board of the NCDC to make necessary Regulations. So, one wonders why the NCDC and the Minister for Health has not exercised their powers over regulations to ensure enforcement instead of the too many guidelines that are often not obeyed. Having in mind the dynamics of COVID-19, NCDC and the government’s regulations drafting office can easily work via available online services without compromising health. There is no reason to continue having wonderful guidelines without people obeying them. There is no point having our law enforcement agencies trying to enforce mere guidelines that have no force of law. Government must be strategic in this fight and avoid flimsy mistakes that frustrate its entire efforts.
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 should be engaged at all times to avoid causing more problems in attempting to solve one. We must conquer COVID-19 without violating fundamental human rights of Nigerians even where such rights may be restricted. Stay at Home and Stay Healthy.
My authorities are:
1. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act 1926.
2. Sections 1, 3, 4, 24, 25, 27 and 28 of the Nigeria Center for Disease Control and Prevention (Establishment) Act 2018.
3. Sections 12, 17, 18 and 39 of the Interpretation Act 1964.
4. Provisions of the COVID-19 Regulations 2020.
5. Regulations 1, 2, 3, 4, 5, 7 and 8 of the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020
6. Sections 53 and 58 of the Lagos State Public Health Law, Cap Ch. P16, Laws of Lagos State 2015.
7. The Supreme Court judgment on “Meaning of Regulation” in the case of AG. LAGOS STATE v. EKO HOTELS LTD & ANOR (2006) LPELR-3161(SC)
8. The Court of Appeal judgment on “Meaning of Executive Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
9. The Supreme Court judgment on “Policy Documents/Guidance” in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
10. The Supreme Court judgment on “Policy Documents/Guidance” 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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