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This paper seeks to appraise the provisions of the constitution dealing with the Procedure for proclamation of state of emergency and the Quarantine Act as a legislation.
The paper seeks to also answer the question as to whether the Quarantine Act is complimentary to the constitution?, and whether the Federal Government of Nigeria experiencing the outbreak of the Covid-19 pandemic has constitutionally and legally declared curfew or shutdown or emergency in the Nation.
EXAMINATION OF SECTION 305 1999 CONSTITUTION
In chapter VIII Part II of the Constitution dealing with miscellaneous provisions, section 305 Sub (1) declares the powers of the president to issue a proclamation of a state of emergency by an instrument published in the official gazette of the Federal Government. Sub-section 2, 3(g),4 and 5 deals with the procedures accordingly, 3(a-f) provides for when a state of emergency may be declared and sub-section 6 deals with when a proclamation of a state of emergency cease to have effect.
For purposes of clarity, sub-section 2 makes it compulsory for the President to forward the official gazette containing the proclamation to the President of Senate and Speaker of the House of Representatives for the purpose approving it by resolution pass by two-third majority of the house. Sub-section 4 however empowers the Governor with the sanction of the House of Assembly to request the President to issue out a proclamation of a state of emergency when there is in existence within the state of the situation in sub-section 3(C),(D) and (E) this section. However where the Governor falls to make such request within a reasonable time, the president may make the declaration. The meaning of reasonable time is a matter of fact depending on the circumstances surrounding each case.
Sub-section 3 provides that the president may make a declaration when the (a) the federation is at war (b) federation is at imminent danger or invasion, (C and d) deals with when there’s a breakdown of public order and safety (e) disaster or natural calamity in the federation and (f) public danger constituting a threat to the existence of the federation.
Comparative Definition of State of Emergency
“State of emergency” is a slippery phrase; and therefore is not amenable to a precise definition. This is because situations that may give rise to states of emergency are numerous. Again, in determining what situations may give rise to states of emergency, political facts and/or considerations may have an edge over constitutional or legal facts and considerations. This makes the definition even more complex. Commenting on this dicey situation, Giorgio Agamben in his work entitled: “The State of Emergency” (2005) said:
“The very definition of the term is complex, since it is situated at the limit of law and of politics. According to a widespread conception, the state of emergency would be situated at an ambiguous and uncertain fringe at the intersection of the legal and political and would constitute a point of disequilibrium between public law and political fact. The task of defining its limits is nevertheless nothing less than urgent. And, indeed, if the exceptional measures that characterize the state of emergency are the results of period of political crisis, and if they for this very reason must be understood through the terrain of politics rather than through the legal or constitutional terrain, they find themselves in the paradoxical passion of legal measures that cannot be understood from a legal point of view, and the state of emergency presents itself as the legal form of that which can have no legal form.’’
Therefore, to give it a streamline and strait-jacket definition will be otiose. The Longman Dictionary of Contemporary English defines a state of emergency as a situation “when a government gives itself special powers in order to try to control an unusually difficult or dangerous situation, especially when this involves limiting people’s freedom”. The Cambridge Dictionary sees it as “a temporary system of rules to deal with an extremely dangerous or difficult situation”. The Oxford Advanced Learner’s Dictionary defines it as “a sudden, serious and dangerous event or situation which needs immediate action to deal with it”. The problem with these definitions is that they all define state of emergency from the viewpoint of difficult and dangerous situations only.
A better, but not too satisfactory, definition is the one offered by the Web. There, the Wikipedia defines it thus:
“A state of emergency is a governmental declaration that may suspend some normal functions of executive, legislative and judicial powers…or other government agencies to implement emergency preparedness plan. It can also be used as a rationale for suspending rights and freedoms, even if guaranteed under the constitution. Such declarations usually come during a time of natural or man-made disasters, during a period of civil unrest, or following a declaration of war or situation of armed conflict”.
This definition gives more instances when a state of emergency can be declared than the previous ones. To us, it is more acceptable. But the problem with this definition is that in some countries, the declaration of a state of emergency and its effects on human rights and freedoms on the one hand (if any) and governmental procedure for such declaration on the other hand are regulated by the constitution and/or other extant laws. Therefore, what may or may not give rise to a proclamation of state of emergency varies from country to country depending on their respective constitutions and other domestic laws. A brief comparative sojourn will not be out of place.
In the South American country of Argentina, their constitution allows for a state of emergency to be declared if the constitution or authorities it creates are endangered by internal unrest or foreign attack.
In Australia, state of emergency legislation differs in each state. In Victoria, for instance, the Premier can declare a state of emergency if there is a threat to employment, safety or public order. The declaration expires after 30 days, and a resolution of either the upper or lower house of parliament may revoke it earlier. Under the Public Safety Preservation Act, a declared state of emergency allows the Premier to immediately make any desired regulations to secure public order and safety. However, these regulations expire if Parliament does not agree to continue with them within 7 days. The Premier also has power to declare a state of emergency under the Essential Service Act to prohibit the operation of any essential service (e.g. transport, fuel, power, gas).
Under Clause 1 (A) of Article 150 of the Malaysian Constitution, the President may declare a state of emergency if he is satisfied that a grave emergency exists whereby the security, or the economic life, or public order in the federation or any part thereof is threatened.
Under the Civil Contingencies Act, 2004 of the UK, the Monarch, the Privy Council, or the Prime Minister can make emergency regulations if there is a serious threat to human welfare, the environment, or in case of war or terrorism. These regulations last for days except confirmed otherwise by the parliament. Prime Minister Edward Heath was the last to declare a state of emergency in 1974 in response to increasing industrial actions.
The Federal Government of Canada can, under the Emergencies Act, proclaim a state of emergency, public order emergency, international emergency, and war emergency. A national emergency expires after 90 days, unless extended by the Government-in-Council.
In the USA, there are several methods for government to respond to emergency situations. A State Governor or Local Mayor may declare a state of emergency within his territorial jurisdiction. This is common at the state level in response to natural disasters within that State. The President of the US, as head of the executive branch of government has the power to declare a federal state of emergency. The enabling laws are the Insurrection Act and National Emergencies Act. The main thrust of emergency situations in the US is declarations of states of emergency in respect of natural disasters and terrorism which led to the respective establishment of the Federal Emergency Management Agency, and the signing of the Executive Order 12947 by President Bill Clinton to curb act of terrorism in the US.
However, it should be parenthetically noted that (1) the constitution only declared the powers of the president with setting down how the president can enforce the state of emergency in respect it perculiarity.
(2) the constitution categorically spelt out the procedure to commence a legal state of emergency. (3) the constitution never provided for any penalty or sanction for defaulters.
It is hereby submitted that, there exist some lacuna in the provisions of the constitution dealing with a state of emergency. It also strongly contended that the procedures outlined in the constitution is somehow cumbersome in cases of emergency but the constitution remains supreme and the government must abide by it. Section 1(1) and (3) of the 1999 constitution declares the supremacy of the constitution. In Orji v. Anyaso (2000) 2 NWLR (pt 643)1 CA, the court of appeals said, “the constitution is at the Apex of legal documents followed by the Act of the National Assembly with the various states laws coming next”. In casu comsimili Adeleke v. O.S.H.A (2006)16 NWLR (pt 1006)608 C.A, the Court of appeal again had no hesitation in holding that, “the impeachment of the Oyo state Governor by the house of Assembly was unconstitutional and that the House of Assembly had no powers to override by it’s action the conditions of law- making as laid down by the constitution. The court further held that every section of the constitution is supreme in its own right as other sections”.
It should be noted that according to section 45 sub(2&3) of the Constitution, certain rights may be restricted during a state of emergency.
It must however be remembered that the constitution in section 4(2) confers on the National Assembly the power to make laws for the peace, order and good governance of the federation or any part thereof with respect to any matter included in the Exclusive legislative list set out in part 1 of the second schedule to this constitution. Accordingly, item 54 of the Exclusive legislative list deals with Quarantine.
For purposes of scholarship, let us take a glimpse at what is Quarantine and the Quarantine Act.
EXAMINATION OF THE QUARANTINE ACT
The meaning of Quarantine is as slippery as that is state of emergency and so, so many judicial ink has been spilled on it probably because it enjoys no statutory definitions, however we may dispose of it by simply saying Quarantine is a sanitary maesure to prevent the spread of a measure plague by isolating those believed to be infected. It may also be any rigorous isolation of a person withou reasons.
Etimologically speaking, Quarantine is derived from a Latin word ‘quadraginta’ (forty).
In Nigeria, the Quarantine Act cap. Q2 lfn 2004 is a product of primary law making authorized by item 54 of the exclusive legislative providing powers to the president to make regulations thereto. It deals only with infectious disease and not in section 305 of the Constitution. For purposes of clarity see below.
QUARANTINE ACT CAP. 384 L.F.N. 1990 ACT CAP. Q2 L.F.N. 2004
The President has the powers to place a curfew, impose restriction of movement, including a lockdown according to the provisions of the Quarantine Act herein reproduced below:
1. Short title
This Act may be cited as the Quarantine Act.
2. Interpretation
In this Act, unless the context otherwise requires—“ dangerous infectious disease ” means cholera, plague, yellow fever, smallpox and typhus, and includes any disease of an infectious or contagious nature which the President may, by notice, declare to be a dangerous infectious disease within the meaning of this Act;[1929 No. 7.]
“ local area” means a well-defined area, such as a local government area, a department, a canton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such areas.
3. Power to declare any place an infected local area
The President may, by notice, declare any place whether within or without Nigeria to be an infected local area, and thereupon such place shall be an infected local area within the meaning of this Act. [1929 No. 7.]
4. Regulations
The President may make regulations for all or any of the following purposes—
(a) prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;
(b) prescribing the introduction of any dangerous infectious disease into Nigeria or any part thereof from any place without Nigeria, whether such place is an infected local area or not;
(c) preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria;
(d) preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place without Nigeria;
(e) prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
(f) fixing the fees and charges to be paid.
Having blazed the provisions of the Quarantine Act, it is must be noted carefully that, Quarantine is different from a state of emergency, and like a state of emergency too, it is an exception to the right to movement guaranteed in section 41 of the Constitution because, section 45 sub 1 states as follows: Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other person’s.
Therefore, submitted that “any law” within the meaning of section 45(1) includes amongst others the Quarantine Act which has the power of limiting the right to movement. And so, the Quarantine Act is a compliment to a state of emergency. In fact, we dispose of the issue by holding that the Quarantine applies only to infectious disease while a state of emergency entails numerous instances, but both has the same effect of sapping some rights of the citizens.
THE OUTBREAK OF COVID-19 AND ATTENDANT RESTRICTION OF MOVEMENT: WHETHER THE PRESIDENCY WAS SUPPOSE TO DECLARE A STATE OF EMERGENCY OR INVOKE THE QUARANTINE ACT?
The forgoing has already exposed the meaning of a state of emergency and Quarantine, however, following the outbreak of the COVID-19 leading to stay-at-home orders in Nigeria and around the world, many legal ink has been spilled in Nigeria vis-a-vis the Order of His Excellency President Muhammadu Buhari (GCFR) to the federation by invoking the Quarantine Act and making regulations thereto for all citizens to stay-at-home for some number of days.
It is contended that, it is within the powers of the president to so do bacause COVID-19 is an infectious disease and posses a national threat to public safety. So many commentators fell into the error of demanding for a state of emergency, contrary to their views the Presidency adopted the right procedure, but with a blunder, the major order of shutting down Lagos, ogun and Abuja FCT is ultra-vires the president powers in the Quarantine Act and tantamounts to a state of emergency. The president overstretched the powers in the Quarantine Act. The jurisprudential basis of the Quarantine Act is not to restrict the movement of persons, but to prevent the further spread of the disease or infection.
However the Governor’s of the states have no such power in regards to the Quarantine Act, and even if such power is given to the house of assembly by the concurrent legislative list under the Constitution, it must have been rendered useless by the doctrine of covering the field. Therefore, any directive by a Governor in Nigeria as regards the containment of COVID-19 is unconstitutional,illegal and has no force of law. Therefore the popular arrest and conviction of Nigerian popular Nollywood actress and Musician Funke Adeleke and Naira marley respectively is unconstitutional. The sentencing of over 25 jogers in Lagos by a magistrate court as a result of an executive by the Governor is unconstitutional.
It is accordingly submitted that,
1- a state of emergency is different from a Quarantine
2- both subject matters derives their source from the Constitution
3- the procedure for a state of emergency is more cumbersome than a Quarantine
4- Nigeria is presently undergoing a Quarantine.
Chinonso
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Raphael
Dugeri Emmanuel