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‘President’s failure to declare state of emergency as required by the constitution before locking down cities will create problems’

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Nwokedi

A Lagos based human rights lawyer and public affairs analyst, Mr. Joe Nwokedi in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE maintains that the address by President Muhammadu Buhari locking down Lagos, Ogun and the Federal Capital Territory (FCT), for the purpose of combating Covid-19 pandemic, is a nullity in law and will remain so until he declares state of emergency as required by sections 305 and 45(3) of the 1999 constitution.

You believe that President Buhari’s approach to Covid-19 pandemic will engender grounds for the future legal crisis. What are your reasons?
Yes, I absolutely believe so because where there is a laid down constitutional provision for a way by which a certain act or obligation is to be performed or carried out in law and such provision or rule is outrightly breached, violated or contravened, it will definitely create an unavoidable crisis in the polity or system.

In the present case, Mr. President’s non-compliance with the constitutionally required/prescribed approach in confronting or approaching the issue of Covid-19 by invoking the provisions of section 305 and 45(3) of the 1999 Constitution and subsequent abuse and violation of section 41(1) of the 1999 Constitution jointly made his action on the restriction of movement in Ogun, Lagos and FCT Abuja grossly illegal, unlawful and therefore null and void and of no effect.

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Therefore his reliance on a defective Quarantine Act in the present situation for his order or proclamation, which is without the force of law, has already created crisis post-Covid- 19. It will be a disaster in law for anyone to place reliance on the president’s order as a ground for performance or non- performance of certain contractual obligations, the fulfilment of contractual terms and conditions or execution of crucial timeline or deadline obligations or liabilities.

The president’s failure to declare a state of emergency as expressly required by the constitution in a situation like this before shutting down or locking down cities will inescapably create gross problems in the Nigeria business environment and the general public.

Are you saying that Covid-19 regulation 2020 issued by the president following the provisions of the Quarantine Act (Cap 02 LFN 2004) does not have the force of law?
Exactly, it has no force of law in our jurisprudence because it was observed in the breach. Quarantine act doesn’t replace outright, clear and unambiguous provisions of the 1999 constitution of Nigeria, which clearly stated and provided how and when movements of people of Nigeria can be restricted and the situation or circumstances in which such occasion may arise.

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Notably, Quarantine’s Act is only talking about the restriction of people or animals that have already been infected by an infectious disease, epidemic or pandemic, so that they won’t infect others or isolating then from the members of the public and not a total lock down or shutting down of a whole state, city, boarders of the states or the entire country as the case may be. The president placed reliance on faulty and defective provisions of the law and therefore it cannot stand. Quarantines Act basically granted powers to the president to restrict the movement of persons or animals affected by a disease only so that they wont infect others and does not extend to the entire populace, covering both the infected and uninfected persons. The president can only exercise the power to shut down cities or states and their borders after a state of emergency in conjunction with the approval by the National Assembly has been declared in such a place or part of the country. So the president’s action on the proclamation order is highly defective and therefore lacks the force of law.

It appears that section 3 of the Quarantine Act clearly empowers the president to restrict movements in these two states and Abuja. What is your view about that?
To start with, section 3 of the Quarantine act refers to restrictions of movements of infected animals and persons and not a total lockdown of the state or cities. So the Act is basically concerned with the movement of the infected persons and not the entire populace and except where the entire populace is infected and in the present case the entire people of the states of Lagos, Ogun and FCT Abuja are not infected by the virus. It is therefore only section 305 (C)(D) (E)(F) that provided for a state of emergency that ought to have ultimately be invoked by the president for the present situation.

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Specifically, section 305 (C) of the 1999 constitution approves state of emergency in a situation where there is a breakdown of law and order and public safety in the federation or any part thereof, to such an extent as to require extraordinary measures to restore peace and security. Section 305 (D) stated that state of emergency could be declared in a situation where there is a clear and present danger of an actual breakdown of law and order and public safety in the federation or any part thereof requiring extraordinary measures to avert such danger.

Section 305 (E) stated that state of emergency can also be declared where there is an occurrence or imminent danger or occurrence of any danger or natural calamity affecting the community or a section of the community in the federation and 305 (F) had it that if there is any danger which clearly constitutes a threat to the existence of the federation, state of emergency can be declared. Also subsection 4 of section 305 of the Constitution made it so obvious that the governor of a State may, with the satisfaction of a resolution supported by two-thirds of a House of Assembly request the president to issue a proclamation of the state of emergency in the state where there is the existence within the state of any situation specified in subsection 3(C) (D) and (E) of this Section 305 and such a situation doesn’t extend beyond the boundaries of the state.

Sub section 5 of Section 305 of the constitution specifically stated that ‘the president shall not issue a proclamation of a state of emergency in any case to which the provisions of subsection (4) of Section 305 of the constitution apply unless the governor of the state fails within a reasonable time to make a request to the president to issue such a proclamation. It is therefore only strict adherence to the provisions of section 305 of the constitution that can give the president the constitutional right to nullify and invalidate the express provisions of section 41 (1) of the constitution, which guaranteed every citizen of Nigeria the entitlement to move freely throughout Nigeria and equally reside in any part thereof and that no citizen of Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom. So the president’s reliance on the Quarantine’s Act at this point is manifestly wrong and grossly illegal and therefore completely null and void.

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In your view, can this lockdown period fall within the category of force majeure or Novus actus interventions in terms of contracting parties?
My answer is not absolutely but partially yes. force majeure or Novus actus interventions would have been expressly applicable in the present circumstance if not for the president’s non-compliance with the constitutional provisions in respect of the issue. Although Force majeure or Novus actus interventions is a natural law with general application globally once its existence has been obviously and undoubtedly proved. It naturally and automatically nullifies any contract upon successful proof of its occurrence but anyone relying on it or pleading it in the present case in Nigeria will face a great difficulty and burden because of the careless and unlawful action of the president and some governors that restricted the movements of the people and locking down cities and businesses without clear adherence to the constitutional provisions needed for such.

Take, for instance, Lagos State. The governor partially shut it down by stopping level 12 civil servants downwards from working or coming to the office. They later ordered for closure of some markets and then while that was in progress, the federal government suddenly gave an order to shutdown every movement and businesses except for some few select people. Now, whereas level 12 below were stopped from coming to work, other levels above them were coming to work and yet some offices didn’t work even with the presence of the level 12 and above in office. Now how do you plead force majeure for a job involving both level 12 down and level 12 above? Again how do you plead force majeure when there was no law (declaration of a state of emergency) that backed up the actions of the Lagos state government? It will definitely be complicated and difficult. Therefore the actions of the president and some of the governors have inadvertently placed and presented more difficult and onerous situation and burden to anyone that may wish to plead or rely on the doctrine of force majeure or Novus actus interventions post-Covid-19.

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What are the legal implications of the pandemic outbreak on commercial contracts and obligations?
Legally, it will definitely create the serious crisis in the commercial contracts and obligations, especially in Nigeria based on the way our government handled the issue without proper recourse and adherence to the established legal provisions, coupled with inadequate coordination of the activities involved in the battle to contain the menace. Worst of it is that their actions were so military in approach without the backing of the law or appropriate coordination. State governors were marshalling out laws and give orders as they deem fit, without even consulting the legislative arm in their states as if the State Houses of Assembly are not in existence or just created for fancy. Today you will hear that a state government closed down shops, tomorrow another one closed offices and next day another one closed inter-state borders and another one ordered the compulsory wearing of face masks etc. These actions are spontaneous and equally uncoordinated and without the backing of the law and this will surely create a serious legal crisis in the business and commercial sectors of the economy. Whereas other states were doing shutting down, other states were not doing the same, as their states and borders were wide open for business.

Note that in most cases, some businesses are done inter state and in a situation where one shutdown, (without the backing of any law) and the neighbouring state opens her own state for business, how then do you reconcile inter-state business in such a situation? Again, the issue of dates of the shutdown order is another problem here. There is a conflict of dates between some states and the federal government. Which of the dates shall the courts validly rely on to nullify any contract done or undone at this pandemic period on the principle of force majeure? Anyway, however it may be, there will bound to be serious issues cum crisis of litigations after the pandemic.

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Can act done or undone at this period be said to be a nullity or valid without compliance with the provisions of the constitution as regards invocation of emergency situations?
They may not be absolutely a nullity because Covid-19 pandemic is a global scourge and phenomenon known to National and International communities and countries, but a great burden ought to be placed in establishing the validity or otherwise of the existence of performance of contractual obligations within this period in view. The issue will be more complicated owing to the clear violations and breach of the constitution by our president in his non-compliance and conformity with the provisions of the 1999 constitution in the declaration of a state of emergency as specifically required by the constitution in times like this. Declaration of state of emergency in compliance with our laws would have automatically saved every act done or undone at this period from any liabilities but unfortunately, the president’s action has inadvertently created a very big crisis over this. People seeking to place reliance on the president’s order will have great difficulty in proving the legality of such. It would have been a settled and rested case if there was a declaration of a state of emergency over the matter as required by the law. Now, it is a contentious issue requiring strictest proof and facts.

Can any citizen aggrieved for the restriction of his movement during this period approach the courts for redress and what is the possibility of such action succeeding?
The law is very clear that where there is a wrong, there is a remedy. This is applicable to everyone irrespective of who contravenes or violates the law, be it the president, governor or any person or persons. Section 41(1) of the 1999 constitution expressly provided for freedom of movement of the people of Nigeria throughout the federation and also that such freedom can only be withdrawn when there arises any issue contained in section 305 of the constitution, which provided for the declaration of emergency in conjunction with the National Assembly and a publication in the Official Gazette of the federation. This is the only time the freedom of movement of a whole state or region or entire country can be restricted. These observations were not complied with and that amounts to outright breach or contravention of the constitution. Therefore any action properly instituted by anybody against the federal or any state government in respect of this issue by any person or persons affected shall surely succeed. So any aggrieved person can approach the court for redress and such a person shall succeed.

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Section 46(1) of the 1999 constitution specifically provided and undoubtedly stated that “any person who alleges that any of the provisions of this chapter (Fundamental Rights) has been, is being or likely to be contravened in any state in relation to him, may apply to a High Court in that State for Redress.” It is very clear there is a contravention of section 41(1) by the president and some governors and therefore anyone affected by that can approach the court for remedy or redress. In the celebrated Court of Appeal case involving Faith Okafor V Lagos State Government & Anor 2016 LPER-41066 (CA) regarding non-observance of Monthly Environmental Sanitation of Lagos State by the applicant, the court declared it null and void and of no effect. That was because it was in breach of Section 41(1) of the 1999 Constitution as amended despite the fact it was created from the governor’s fiat. So, the same will apply in this present situation.

Assuming the president was to comply with the provisions in section 45 (3) and Section 305 of the constitution, how will the National Assembly play it’s own role since social distancing is highly propagated at this time?
The president should have made the move to comply with the provisions first by informing the National Assembly members, let the legislatures now inform the president that they are incapacitated to converge or convene a meeting for the assignment owing to the Covid-19 pandemic. Also social distancing does not entirely foreclose gathering of people but only says that people should not stay so close while gathering.

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In most cases 20 persons may gather and in some instances 50 persons may be allowed in bigger places (complex) like National Assembly complex to gather. Where it seems absolutely difficult or impossible for them to gather physically, they can collect their signatures online because I know they have a portal and they can then donate the power to the president to declare a state of emergency in the affected areas or states. This is the situation where the doctrine of necessity or extreme emergency will be legally applicable and allowed. But in the present situation, the president made no efforts at all. Its also worthy to note that America followed the legal and constitutional provisions to tackle their own issues despite how big they are with greater numbers in the legislative Assembly than Nigeria. Our president should have made a move first and I am very sure that the National Assembly would have automatically complied and assented to his request.

If you consider Mr. President’s action as a breach of the constitution, what does that has to say about the roles the attorney general of the federation and vice president who is a professor of law in terms of giving legal advice to the president?
With utmost respect to the two Senior Advocates of Nigeria and our very senior lawyers, I will say without mincing words that they didn’t advice Mr. President rightly. Allowing Mr. President to place erroneous reliance on Quarantine’s Act instead of a declaration of a state of emergency in line with provisions of section 305 of the 1999 constitution as amended is quite regrettable and very sad. Our president was ill-informed, misled and misguided.

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The attorney general of the federation should have consulted widely in order to know exactly the law that fits inappropriately at this period in time and exactly what the correct position of the law and applicable law is on this issue, so as to advise the president accordingly. On the issue of the learned Senior Advocate and Professor of Law, our respected vice president, I wish to humbly disagree with his defense and reliance on Quarantine’s act. Such to me is very defective and will surely crumble at the alters of an intensive legal crossfire and arguments in court. Quarantine’s act cannot be used to nullify or invalidate an express and unambiguous provision of the constitution, which is the grundnorm in a situation that is absolutely captured by the provision in section 305 of the 1999 constitution. I believe that this matter will surely be tested in court after Covid-19 and we shall see what the court will say on this.

Now that the address and the regulation have come before the invocation of the emergency clause, will it still be valid to still declare a state of emergency? Will it not amount to putting the cart before the horse?
Section 36(8) of the constitution stated that “a person shall not be held to be guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.” You can clearly deduce from the above section what we all knew as retrospective law and which is forbidden in our jurisprudence.

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In view of the above, the address the president read is a nullity in law and will remain so until a proper thing, which is a declaration of a state of emergency, is done. The president’s order or proclamation will only receive validity and legality upon proper declaration of a state of emergency and until that is done, his actions and deeds in respect of this Covid-19 for restriction of movements will be and continue to be in breach and therefore null and void and of no effect. It is also very viable to be challenged in a law court. If he declares a state of emergency now, his actions in respect of restriction of movement will begin to have validity now, but all actions embarked upon before now in respect of such will be viewed and continue to be viewed as a great contravention of the law and then a nullity

Apart from the issue of the legality of the president’s directive, what is your view about the relief package he announced? Is it adequate enough considering the untold hardship citizens would face during this period?
In the first place, some aspects of the relief package and directive are very contentious, controversial and misleading and are bound to create more problems, especially on the areas of waiver of interests in some loans. The president shouldn’t have meddled into the area of loans, which is absolutely commercial in nature. He should have allowed the principle of force majeure to take natural care of that area. By Mr. President’s exemption of some categories of people from the loan and not exempting others, he has further created more crises in the sectors that were not covered by his exemption. That is entirely wrong.

On the other hand, the palliatives or relief announced by the president for this Covid-19 is very meagre and infinitesimal and cannot go anywhere in cushioning the harsh effects of the lockdown and the stay at home order. He should as a matter of urgency step up the relief packages so as to carter for the needs of the people to a very large extent. This will surely enable citizens to comply with the stay at home order (though unconstitutional) for those already affected by the order otherwise crimes will emerge in our society in a very overwhelming capacity and hunger will equally kill more people than the feared Covid-19. The relief package should be extended to places without the lockdown or stay at home order because the entire country is sick now.

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