The greatest of all laws in Nigeria, is the Constitution of the Federal Republic of Nigeria. The Constitution provides the system for managing the affairs of Nigeria at all times. With the Coronavirus (COVID-19) pandemic, there is need for government to lawfully restrict certain fundamental human rights of persons in Nigeria to manage and conquer COVID-19. Although there are Quarantine Act of 1926 and the COVID-19 Regulations of 2020 from the Federal government, are there better measures state governments can employ to safeguard their states? Can states seek state of emergency because of their peculiarities and high cases of COVID-19? Since there is a federal government law on COVID-19, can state governments make laws over same issue? Can state legislatures make laws on issues Quarantine?
Presently, there is a 94 years old federal law empowering the President to fight dangerous infections disease, like COVID-19. On 30 March 2020, the President made the COVID-19 Regulations of 2020, the Regulation restrains movements in certain cities in Nigeria and aIso suspends all airports and aircrafts (except with special permits), as well as courts (except for urgent essential issues) in the Abuja, Lagos State and Ogun State. It exempts hospitals, banks (skeletal operations), lagos seaports, commercial establishments dealing on food, petroleum, power or private security firms. The Regulation highlights steps government is taking to prevent spread of COVID-19 and to provide relief materials. It also requests for personal sacrifices and appreciates support of private sector and individuals.
Ahead of the COVID-19 Regulations of 2020 and exercise of presidential powers under the Quarantine Act, certain states in Nigeria enacted laws to manage the spread of the deadly virus. As expected, the state laws restrict fundamental human rights (mostly, right to freedom of movement). Some schools of thought, argued that states governments (Houses of Assembly) cannot legislate on issues of quarantine since quarantine is in the Exclusive Legislative List preserved for only the federal government (National Assembly). Another school, supports the states governments that made quarantine regulations, based on the powers of states governments to flex the powers of the President under the Quarantine Act, if and when the President fails to use such powers/make declarations and regulations.
The both schools of thought appear to be right to the extent that, powers under the Quarantine Act can be exercised by states governments only ahead of Presidential declaration under the Quarantine Act. Hence, once the President exercise his powers under the Quarantine Act, no state government can use such powers rather state governments must obey the declaration of the President. On the issue of states making laws on quarantine, the state legislators do not have powers overs issues of quarantine. Quarantine is exclusively for federal legislators. So, the only one way for a state to uniquely protect its state beyond the general protection and procedures of the Federal Government may be through declaration of State of Emergency, as we would see below.
By the constitution, periods of state of emergency are periods where there is in force a Proclamation of State of Emergency that has been declared by the President of Nigeria for the whole of Nigeria or any part of Nigeria. Such declaration of the President may be through an instrument published on the Official Gazette of the Government of the Federation. The Official Gazette of the Government of the Federation containing such proclamation must be immediately transmitted to the Senate President and the Speaker of the House of Representatives, for them to convene meeting of parliament to pass a resolution approving or refusing the proclamation of the President. Note that the President can only make a proclamation of a state of emergency when the entire Nigeria is at war, in danger of being invaded/at war, actual breakdown or in danger of breakdown of public order and public safety across Nigeria or any part to the extent that extraordinary measures are needed to restore peace and security, natural disaster or natural calamity or in danger of such in any community in Nigeria, public danger that may affect existence of Nigeria or upon request from a Governor for state of emergency in his state.
The focus here is on state of emergency for a state in Nigeria. Governor of a State in Nigeria cannot declare or proclaim a state of emergency in or for his state. Rather a Governor with a legislative resolution supported by two-third majority of his State’s House of Assembly can request the President of Nigeria to declare a state of emergency for his state. The Governor can request for such only where the state is in actual breakdown or in danger of breakdown of public order and public safety to the extent that extraordinary measures are needed to restore peace and security or where there is natural disaster or natural calamity or in danger of such in his/her community. The President may refuse to make proclamation for a state of emergency, where the Governor fails to make request within reasonable time.
In this period of pandemic, some states in Nigeria, are greatly affected above and beyond other states. While some states have recorded over 100 COVID-19 cases, there are states in Nigeria without a single case of COVID-19. It will not be out of place that states at higher risk of COVID-19 may need special procedures to combat their peculiar situations as states. Since, states cannot use powers under the Quarantine Act or make their own Quarantine laws for reasons earlier stated above, the only lawful option that can legally restrict freedom of movement and many other human rights is declaration of state of emergency. Obviously, the COVID-19 is a natural disaster and calamity, which is enough constitutional grounds for a state government to seek for declaration of state of emergency from the federal government.
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. Stay at Home and Stay Healthy.
My authorities are:
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. Provisions of the COVID-19 Regulations 2020.
5. The Supreme Court decisions in the case of ADEGBENRO v. AG OF THE FEDERATION & ORS (1962) LPELR-25118(SC)
6. The Supreme Court decision in the case of WILLIAMS v. MAJEKODUNMI (No.2)(1962) LPELR-25044(SC)
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