Legality of Government’s Regulations Restricting Fundamental Rights: A Disruptive Argument

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Minister of state for Health, Dr. Osagie Ehanire

In this article, Richard Abdulahi examines provisions of the Constitution and Quarantine Act vis-a-vis the legal regime to curtail the spread of an infectious disease like Covid-19. He concludes that, on the strength of the Supreme Court decision in Mbanefo v Molokwu, the Regulations made by Government for the purpose of containing the deadly virus, are validated under Section 45(1) of the Constitution

The outbreak of the Coronavirus has exposed variegated legal problems, and the dreadful deficiencies plaguing the existing legal regime governing public health crisis in Nigeria. Two things are clear from the legal problems arising from such legislative deficiencies, it is either a public health crisis and its implication on our economy and security has never come within the legislative prognosis of our Legislators, or our Legislators have been more concerned with other legislative pursuits of political and pecuniary interest than public health and safety.

It is my considered view that, the latter is the case. This view is reinforced by the fact that the Public Health Bill 2013 which was meant to amend the Quarantine Act of 1926 was introduced in the National Assembly, but the bill never saw the light of legislative day. A proactive legislative arm that is more concerned about the interests of the people than political and pecuniary interests, would have swung into action in the aftermath of the Ebola outbreak and enact into law a comprehensive legislation to deal with future incidences of public health crises. Perhaps, the loudest denunciation in this entire crisis should be against our lawmakers.

The Legal Debate on the Legality of the Restrictions Imposed by Government

The legal problems arising from the obvious lacuna inherent in the laws governing public health in Nigeria has generated serious debate as to the constitutionality of some of the extraordinary measures adopted by Government to contain the further spread of the Corona virus. On both ends of the spectrum of this debate are two senior Lawyers, the Attorney-General of the Federation, Mr. Abubakar Malami, SAN who has argued that the President rightly exercised the powers conferred on him under the Quarantine Act, and Mr. Ebun Adegboruwa, SAN who has argued, on the other hand, that the President lacks the power to abridge Constitutional rights by Regulations made under the Quarantine Act.

This comment is not meant to join in the cross fire of the prevailing arguments on the legality of Government’s action, but to advance a disruptive alternative argument which will drive a nail of finality into the planks of the legal debate, then touch on the inadequacy of the existing legal regime governing public health crises and the urgent need for reforms.

A Disruptive Alternative Argument

There are two principal laws that vest Government with powers to adopt extraordinary measures in times of public health crisis; the Constitution of the Federal Republic of Nigeria, 1999 (the Constitution) and the 1926 Quarantine Act, Cap. Q2, LFN 2004. There are other strands of legislation, that contain threads of provisions governing Government powers during health crises.

Section 305 of the Constitution

Section 305 of the Constitution provides for the general extraordinary powers of the President to unilaterally or at the request of a Governor, declare a state of emergency in certain instances, such as when there is an imminent or actual breakdown of public order, public health and public safety in the Federation or any part thereof to such extent as to require extraordinary measures, to avert or arrest such crisis. Details of the provision will not be delved into since the President has not declared a state of emergency.

However, the focal provisions under the Constitution which fuelled the debate are the fundamental rights provisions under Chapter 4 of the Constitution, and the provisions under Section 45 of the Constitution which provide for certain instances under which there can be a curtailment of the fundamental rights guaranteed under Chapter 4 of the Constitution.

Section 45 of the Constitution

Section 45 clearly provides for two situations under which fundamental rights can be curtailed under the section:

Firstly, Section 45(1) validates any law which limits or restricts the fundamental rights covered under Section 37 (right to privacy), Section 38 (right to freedom of thought, conscience, and religion), Section 39 (right to freedom of expression and the press), Section 40 (right to peaceful assembly and association) and Section 41 (right to freedom of movement) if the law is reasonably justifiable in a democratic society, and such restriction is in the interest of public order, public safety or public health.

Secondly, Section 45(2) and (3) validates an act of the National Assembly which provides for “reasonably justifiable” curtailment or derogation from the Constitutional rights under Section 33 (right to life) or Section 35 (right to personal liberty) during a period wherein there is in force a proclamation of a state of emergency under Section 305 of the Constitution.

Thus, it is clear from the above provisions that there are two situations under which the said rights under Chapter 4 of the Constitution can be derogated from: when an existing law empowers such derogation for the purpose, in this case, of public safety and public health without a declaration of a state of emergency, and when an act of the National Assembly empowers such derogation during a ‘period of emergency’ for the purpose of dealing with an imminent or actual threat to public order, safety or health.

Some have argued that the powers of the President to impose restrictions which derogate from the referenced rights under Chapter 4 of the Constitution, can only be validated by a declaration of a state of emergency under Section 305 of the Constitution. I respectfully disagree, as it is clear from Section 42(1) of the Constitution that an existing law can impose such restrictions if done in the interest of public health and safety. The Quarantine Act of 1926, falls under that category.

Quarantine Act 1926

The Quarantine Act remains the principal statutory enactment, regulating public health emergencies in Nigeria. The outmodedness of the Act is immediately evidenced by the nature of the diseases classified as dangerous infectious diseases under the Act, and the provisions that impose a fine of N200 on Defaulters.

The Preamble of the Act provides as its intendment, “the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria… of dangerous infectious diseases”. Section 2 of the Act designates certain diseases as dangerous infectious diseases, and defines a local area.

In addition, the Act authorises the President or the Governor of a State to declare any infectious or contagious disease, as a dangerous infectious disease; declare any place in or outside of Nigeria to be an infected local area, and make regulations prescribing the steps to be taken for the purpose of preventing the introduction of a dangerous infectious disease into Nigeria or any part thereof, or the spread or transmission of a dangerous infectious disease to any place within or outside Nigeria, whether a local infected area or not.

Some have also argued that the Act which was meant for the isolation of infected persons, cannot be transformed into a law restricting the rights of uninfected persons. I also beg to disagree, having regard to the provision of Section 4 of the Act which confers wide regulatory powers on the President as stated above. In exercise of the said regulatory powers conferred under the Act, the Federal Government issued a Regulation to contain the spread of the dangerous infectious Covid-19 virus.

The Regulation was issued in the aftermath of the uproar that visited the President’s announcement restricting movement in Lagos and Ogun States, and Abuja. I had argued elsewhere that without the requisite Regulations under the Quarantine Act, the President lacks the power to impose such sweeping restrictions on guaranteed freedoms. Also in exercise of the powers vested under Section 8 of the Act, the Lagos State Government issued the Infectious Diseases (Emergency Prevention) Regulations 2020.

Very potent arguments on the validity of the Regulations have been canvassed, to the effect that the President cannot by Regulation restrict the fundamental rights and freedoms guaranteed under Chapter 4 of the Constitution. The proponents of this argument have contended that a Regulation cannot be construed as “law” within the meaning of Section 45(1) of the Constitution. Of all of the arguments so far on the constitutionality of the restrictions which were imposed by the President, this is perhaps the most potent.

The Defining Decision of the Supreme Court in Mbanefo v Molokwu

However, the argument that the Government cannot by Regulation restrict fundamental rights is most fallible as the provision of Section 45(1) of the Constitution and the word “any law” under the section has been subjected to judicial interpretation by the Supreme Court. If the proponents of the argument that Government cannot by regulation restrict fundamental rights had adverted their minds to the decision of the Supreme Court in MBANEFO v MOLOKWU (2014) 6 NWLR (PT. 1403) 377, they would have immediately seen the sudden fallibility of their argument.

In the case, the Appellant contended that certain disciplinary actions taken against him by the Onitsha Indigenous Community and adopted by Agbalanze Onitsha, whereby he was ostracised from partaking in activities in the community constituted a breach of his fundamental rights. The trial Court and Court of Appeal dismissed his appeal and upon a further appeal to the Supreme Court, it was held:

“This may be an appropriate stage to state loud and clear, that the interpretation of “law” as prescribed under Section 45 of the Constitution cannot be restricted only to statutes of parliament. It would include the rules and regulations guiding communities which assist them in the maintenance of peace and tranquility.”

Of course, this decision clearly construed the word “law” to include regulations made by an indigenous community. If the regulation of an indigenous community was countenanced under Section 45(1) of the Constitution by the Supreme Court as constituting a valid derogation from fundamental rights, how much more the Regulations made by the Government pursuant to the powers conferred under an existing law in this unprecedented period of public health crisis?

It is submitted that, on the strength of the above decision of Mbanefo v Molokwu (Supra), the Regulations made by Government for the purpose of containing the deadly virus posing both a present and imminent danger to public health and safety, are validated under Section 45(1) of the Constitution.

Some very senior Lawyers have surprisingly surmised that the debate as to the legality of the Government’s action is unnecessary, having regard to the imminent public health disaster posed by the Covid-19 virus. I also respectfully disagree, as such blatant dismissal is tantamount to stating that Government can resort to impunity during a period of national crisis such as this.

Urgent Need for Reforms

The threat of devastating, dangerous infectious disease outbreak is on the rise, with several outbreaks recorded across the globe in the past six years. The present outbreak of the intractable Covid-19 coming just after the Ebola outbreak, is a reawakening call of the fierce urgency for reform. There is a pungent need for the review and reform of the legal framework governing disease surveillance, and public health crisis in Nigeria.

Richard Abdulahi, Legal Practitioner, Lagos