8th April 2020
As the number of confirmed cases of Coronavirus (“COVID-19”) surges and its transmission remains fluid, President Muhammadu Buhari made a televised broadcast on Sunday, 29th March, 2020. Paragraphs 34-45, and 49-54, and 57 of the Presidential Broadcast contain orders and directives that restrict all movements in the Federal Capital Territory, Abuja (“FCT”), Lagos State and Ogun State for an initial period of 14 days.
To legalize the aforesaid restriction of all movements and satisfy the requirement of the Quarantine Act, 1926. Cap Q2 LFN 2004 (“Quarantine Act”), the President issued COVID – 19 Regulations 2020 wherein he declared COVID – 19 a dangerous infectious disease. In so doing, the President hinged his powers to restrict all movements in the affected states on sections 2, 3 and 4 of the Quarantine Act.
The pertinent question, therefore, is whether the President can suspend all constitutional rights to freedom of movement based on the Quarantine Act. The answer to this question cannot be hastily given because it may be argued that the Quarantine Act has no provision for restriction of movement of any citizen and as such a fundamental right expressly granted by section 41 (1) of 1999 Constitution cannot be taken away by assumption, inference or deductions.
On the other hand, it is correct to say that the Quarantine Act is a specific public health and safety legislation, containing special provisions which empower the President to make regulations to contain and manage infectious diseases and as such, the President can restrict all movements in the affected states for the purpose of containing the spread and transmission of an infectious disease without infringing on right to freedom of movement as enshrined in the Constitution.
Hence, we shall appraise the legality of President Buhari’s anti-coronavirus lockdown order under the extant legal frameworks and consequently answer the above question.
COVID – 19: Can the Quarantine Act legalize restriction of movement
The essentials of right to freedom of movement guaranteed under section 41 of the 1999 Constitution cannot be gainsaid. It is the right that evidences the existence of other rights and without it, other notable rights will become otiose and most economic activities will be halted.
Howbeit, right to freedom of movement ends where the necessity to protect other rights arises. For instance, right to freedom of movement cannot substitute or take the place of right to life. It is for this reason that right to freedom of movement guaranteed under section 41 of the 1999 Constitution must be read in conjunction with the provisions of section 45 of the 1999 Constitution.
Section 45 (1) of the 1999 Constitution provides that nothing in section 41 of the 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 or other persons.
Flowing from the provisions of section 45 (1) of the 1999 Constitution are two questions – whether the Quarantine Act, 1926 is an Act of the National Assembly and whether there must be express provision for restriction of movement in the Quarantine Act before the President can rely on it to suspend constitutional right to freedom of movement for the interest of public safety or public health as permitted under section 45 (1) of the 1999 Constitution.
In answering the first question, recourse must be made to section 315 of the Constitution. Section 315 recognizes existing law, which is in force before the commencement of the Constitution, as an Act of the National Assembly if such law borders on any matter which the National Assembly is empowered by the Constitution to legislate-on. It is based on the aforesaid recognition of existing law that section 318 of the 1999 Constitution defines “Act of the National Assembly” to include any law which takes effect under the provisions of the Constitution.
Therefore, one can conclude that the Quarantine Act, 1926 is an Act of the National Assembly under the 1999 Constitution, more so, since Item 54 of the second schedule to Part 1 of the 1999 Constitution empowers the National Assembly to exclusively legislate on “Quarantine”.
As regards whether there must be express provision for restriction of movement in the Quarantine Act before the President can rely on it to suspend constitutional right to freedom of movement. Sections 4 (c) and (d) of the Quarantine Act provides that the President may make Regulations for the purpose of preventing the spread and transmission of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place within Nigeria.
Suffice it to say that the reason for not providing any particular measure to be taken by the President in containing the spread and transmission of a dangerous infectious disease under section 4 of the Quarantine Act is because an infectious disease is usually new and unanticipated and as such it is the form or manner of its spread and transmission that will determine the particular and appropriate Regulation (s) to be made by the President in containing such spread and transmission.
In other words, where restriction of all movements is the appropriate and effective means of containing the spread and transmission of a dangerous infectious disease, any Regulation issued to that effect by the President is apt and for the interest of public safety or public health.
Therefore, the Quarantine Act need not expressly provide for restriction of movement before the President can issue any Regulation to that effect. To argue otherwise will certainly defeat the flexibility and easiness required in making any exigent Regulation as envisaged in section 4 of the Quarantine Act.
However, it is not out of place to pass such Regulation into Law, as done in some States, and where such is done, the Quarantine Act will no longer be the legal instrument backing the restriction of all movements rather the Regulation-cum-law becomes the legal instrument pursuant to which movement is restricted for public safety or public health.
Since constitutional right to freedom of movement is not absolute and given the prevalent global trend and practice, we hold the well considered view that by community reading of section 45 of the 1999 Constitution, the Quarantine Act and the Regulation, the President can restrict all movements for the interest of public health and safety without infringing on section 41(1) of the 1999 Constitution.
Need be mentioned, the Quarantine Act may be amended to, among others, include restriction of all movements as part of measures the President can take in containing the spread and transmission of some dangerous infectious diseases so as to avoid future legal tussle on the legality or illegality of a presidential order or directive which restricts movement of persons in order to contain the spread of infectious dangerous diseases.
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