Without seeking solace in jurisprudence on the fact that the essence of law in any society is the protection and promotion of its general good, the position taken by Mr. Adegboruwa (SAN) is unfortunate, considering the time we have found ourselves globally in the face of this COVID-19 Pandemic, which is ravaging nations across the globe without remedy in sight.
However, for argument’s sake or academic exercise, let’s consider Adegboruwa’s arguments below as reported:
“The Quarantine Act of 1926, as its name and provisions connotes, is meant for the isolation, care and treatment of victims of infectious diseases simply for the purpose of isolating them from interacting with other members of the public generally. A law enacted for the benefit of those not infected by any disease cannot and should not be twisted to restrain them,”
“There is nowhere in sections 4 or 8 of the Quarantine Act that states or anticipated that the President or Governor could make regulations for the restriction of movement of persons on account of infectious diseases, against persons not so infected. Regulations in relation to quarantine are always limited to the infected persons.”
From the summary of his argument above, it is very clear that he relied heavily on section 41 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) to counter what the president did. And the said Section
41 provides thus:
(1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen of Nigeria shall be expelled from Nigeria or refused entry thereby or exit therefrom.
(2) Nothing in subsection (1) of this section shall invalidate any law that is reasonably justifiable in a democratic society –
(a) imposing restrictions on the residents or movement of any person who has committed or is reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b) providing for the removal of any person from Nigeria to any other country to:-
(i) be tried outside Nigeria for any criminal offence, or
(ii) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has been found guilty:
Provided that there is reciprocal agreement between Nigeria and such other country in relation to such matter.
Clearly, if one resort to restrictive argument, as did Adegboruwa (SAN) he can most likely come to the same conclusion. But where a quick look at section 45 of the same constitution is made, which provides thus:
(1) 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 persons.
It is worthy of note that section 45 has derogated the provisions of section 37, 38, 39, 40 and 41 by subjecting them to the interest of defence, public safety, public order, public morality or public health.
For every lawyer, the word proviso is technically clear and simple, that the provisions of section 41 (1) (2) and section 45 (1) of the Constitution, generally, subject to its provisions, where it provides that nothing in this Constitution shall invalidate any law that is reasonably justifiable in a democratic society.
This apparently took us to the Quarantine Act, under which the president made his declaration. And since the Act only has about 8 sections, I reproduced them as follows:
“2. In this Act, unless the context otherwise requires – “dangerous infectious disease” means cholera, plague, yellow fever, smallpox and typhus, and including 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; “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.
- 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.
- 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 in 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 for any matter or thing to be done under such regulations and prescribing the persons by whom such fees and charges shall be paid, and the persons by whom the expenses of carrying out any such regulations shall be borne, and the persons from whom any such expenses incurred by the Government may be recovered;
(g) generally for carrying out the purposes and provisions of this Act. - Any person contravening any of the regulations made under this Act shall be liable to a fine of N200 or to imprisonment for a term of six months or to both.
- The President and within each State, the Governor thereof, may provide such sanitary stations, buildings and equipment, and appoint such sanitary anchorages as he may think necessary for the purposes of this Act.
- Proceedings for imposing any fine or imprisonment under this Act or for recovering any expenses incurred or charged by the Government in carrying out the provisions of this Act may be commenced before and determined by any magistrate.
- If and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations may be exercised in respect of a State, by the Governor thereof as fully as such power may be
exercised by the President, and subject to the same conditions and limitations.
In my candid view, section 2 – 8 of the Quarantine Act has clearly empowered the President or Any State Governor in Nigeria to make the same declaration and by so doing it can curtail the freedom of movement of the citizens without doing any harm to section 41 of the Constitution.
Finally, I think the argument by Mr. Adegboruwa (SAN) has just attempted to keep us busy while at home, but with all due respect, his argument is lacking in any merit whatsoever. And these Regulations to be made by the president or state governors are not to be made in robotic fashion, but based on the exigencies and demand of the situation at hand. Where the law is flexible, you cannot rigidify it for no reason.
By: Barr S. G Idress (Idrees Gambo) S. G Idress & Co.,
(Al-Mufeed Law Firm), Bauchi, Bauchi State, Nigeria.
