Covid-19: Constitutionality Or Otherwise Of The Use Of Presidential Fiat As An Instrument For The Restriction Of Movement In Lagos, Abuja And Ogun -By Qudus A. Alalafia

The Federal Ministry of Health confirmed a coronavirus disease (COVID-19) case in Lagos State, Nigeria. The case, which was confirmed on the 27th of February, 2020, is the first case of coronavirus disease confirmed in Nigeria since the beginning of the outbreak in China in January, 2020. The case is an Italian man who works in Nigeria and returned from Milan, Italy to Lagos, Nigeria on the 25th of February, 2020. He was confirmed by the Virology Laboratory of the Lagos University Teaching Hospital, part of the Laboratory Network of the Nigeria Centre for Disease Control.

By the morning of March 29th 2020, the total confirmed cases within Nigeria had risen to ninety-seven. And this forced President Muhammad Buhari (GCFR), same day, to announce restriction of movement in Lagos, Abuja and Ogun being a palliative measure to contain the spread of the epidemic virus in the country which has been declared by the World Health Organisation as a national concern and global health emergency.

It is in view of the above that this piece evaluates the constitutionality or otherwise of the use of presidential fiat as an instrument for the restriction of movement in Lagos, Abuja and Ogun. However, this writer hasten to say that this piece is not in anyway to condemn the frantic effort of government, public health workers, corporate entities, private bodies and individuals towards containing the spread of this pandemic virus in the country but to call the attention of government to the constitutional infraction by presidential fiat issued on 29th March 2020, which may have been issued in error due to the pressure and urge to quickly put the disease under control, in order to prevent future breach of the constitution. Their efforts are in fact appreciated and commended as the country struggles to put the spread of the virus under control.

In the celebrated case of Arthur Yates v Vegetable Seeds Committee, Herring C.J rightly posited that it is not the English view that whatever is officially done is law but whatever must be officially done must be done in accordance with the law. To know what the law is, a quick look is made to establish the simple concept of presidential fiat and fundamental right to freedom of movement.

According to the Longman Dictionary of Contemporary English, a Fiat is an order given by someone in a position of authority, without considering what other people want. Similarly, the Black’s Law Dictionary defines fiat as an order or decree, especially an arbitrary one. In this instance case, it is a fiat from the office of the president. On the other hand, the fundamental right to freedom of movement being a right that is recognised, guaranteed and enforceable against every person under chapter IV particularly sections 41 (1) and 46 (2) of the country’s constitution has been given a judicial blessing the Supreme Court of Nigeria.

In Ransome-Kuti & Ors. V. Attor. Gen. Federation & Ors, his Lordship, Eso, JSC in defining fundamental rights succinctly stated thus;

“What is the nature of a fundamental right? It is right which stands above the ordinary laws of the land and which in fact is an antecedent to political society itself. It is a primary condition to a civilized society existence and what has been done by our constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960 up to this present constitution… It is to have these rights enshrined in the constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the constitution itself……”

The Black’s Law Dictionary defines fundamental right as a right derive from natural or fundamental law and constitutional law; a significant component of liberty, encroachments of which are rigorously tested by the courts to ascertain the soundness of purported governmental justifications. Having said this, it is in the opinion of this writer that whilst it is a general knowledge that all rights though recognised and guaranteed by the law are not absolute and can be set aside in certain circumstances such as the prevailing epidemic ravaging the country, this writer is of a strong conviction of the law that a mere presidential fiat is not only legally disabled but also democratically crippled to restrict Nigerians from enjoying the inalienable right to freedom of movement.

The position of the Law is clear and far from any modicum of doubt as to how and when these rights which freedom of movement is one, can be restricted or denied. For easy understanding, sections 41 (1) and (2) of the constitution is hereby reproduced.

1. (1) Every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof, and no citizen shall be expelled from the Nigeria or refused entry thereby or exit therefrom.
   (2) Nothing in subsection (1) of this section shall invalidate any law that is reasonable justifiable in a democratic society-
   (a) imposing restrictions on the residence 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) to 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.

The community reading of this section, the adjourning subsections and paragraphs would make one to wonder from where the President derives his power to restrict people’s movement as it is crystal that the circumstances stated under the paragraphs of the subsections of section 41 quoted above do not cover the present situation. Perhaps there is need to say that a good act has been exercised wrongly. It is hereby pointed out that argument may be made as to the act being permissible but for the mere fact that it bothers on the inalienable rights of Nigerians coupled with the fact that there is a procedural law which the president ought to have complied with rather than coming through a presidential fiat makes it pertinent to be reversed to avoid unnecessary constitutional infraction and bad precedent which is either capable of forming part of the law or being challenged in court which ordinarily would have saved the court from wasting the tax payers money and judicial energy to hear and determine such a suit when same can be withdrawn with less stress and proper steps taken accordingly, yet without any risk as repercussion.

It is noteworthy to state that even the inherent power of the President can not cure this infraction because it is trite that where legislation dealing with an inherent power exists, it is no longer an inherent power, it henceforth becomes a statutory power or constitutional power. Be that as it may and wherever the president deduced his power from, shall to the extent of its inconsistency with the constitution, be void.
Therefore, this writer suggests that the normal procedure which the president ought to have taken is by declaring state of emergency and not by presidential fiat as pointed out earlier. The Chambers 20th Century Dictionary defines State of Emergency as the suspension of normal law and order procedures and the introduction of strict controls of the population that usually involves the military, so that a crisis, revolution, etc can be contained. While the constitution does not provide an express definition of state of Emergency, section 45(3) of the constitution provides thus;
“In this section, a period of emergency means any period which there is in force a proclamation of a state of emergency declared by the president in the exercised of the powers conferred on him under section 305 of this constitution.”

But a cursory look at section 45 (2) of the 1999 constitution reveals such a period where certain fundamental rights as guaranteed may be derogated from or limited. Section 305 of the 1999 constitution provides for the procedure for the declaration of state of emergency by the president , the conditions that will engender the such a declaration when it will cease to have effect, and the role of the National Assembly, the governors of the state and its legislative house in the process.

Subject to the provisions of the constitution, the President may by instrument published in the Official Gazette of the Government of the Federation issue a proclamation of a state of emergency in the Federation or any part thereof. And shall immediately after the publication transmit copies Constitution of the Federal Republic of Nigeria, 1999.the official Gazette containing the proclamation including the details of the emergency to the President of the Senate and Speaker, House of Representatives each of whom shall forthwith convene for a meeting of the parliaments to consider the situation and decide whether or not to pass a proclamation approving the proclamation. And the President shall amongst others things have power to issue proclamation of a state of emergency when there is an occurrence or imminent danger, or the occurrence of any disaster or natural calamity, affecting the community or a section of the community, there is any other public danger which clearly constitutes a threat to the existence of the federation.

There is no doubt that the president merely made an order as to restrictions of movements in Lagos, Abuja, and Ogun without declaring state of emergency which would have made such order legal and the declaration can only receive legal blessings save and except same is transmitted to the National Assembly in line with the procedure of the law. It is hereby reiterated that while this writer appreciates and commend the joint effort of government, public health workers, corporate entities, private bodies and individuals towards containing the spread of the virus, notwithstanding, the government is enjoined to comply with the law to make its act legally binding void of any infraction from the body which ought to protect and exercised it accordingly.

In conclusion, permit me to say that Nigeria is just one out of the several jurisdictions we have in the world with well laid-down principles and practice of law, and it is ours to spice up the way we practice law in this jurisdiction before the aroma of same is perceived by other jurisdictions whereby ours is adopted as precedents by others which though maybe persuasive to them but too compelling to ignore.

(C) QUDUS A. ALALAFIA, ESQ.
07034479679/alalafiaqudus@gmail.com