On Sunday 29^th March 2019, President Muhammadu Buhari in a broadcast, addressed Nigerians, articulating concerns over the Covid-19 pandemic. The President directed the lockdown and restriction of movement in Lagos State, Ogun State and Federal Capital Territory, Abuja (FCT). In his words:

34. Based on the advice of the Federal Ministry of Health and the NCDC, I am directing the cessation of all movements in Lagos and the FCT for an initial period of 14 days with effect from 11pm on Monday, 30th March 2020. This restriction will also apply to Ogun State due to its close proximity to Lagos and the high traffic between the two States.

35. All citizens in these areas are to stay in their homes. Travel to or from other states should be postponed. All businesses and offices within these locations should be fully closed during this period.

36. The Governors of Lagos and Ogun States as well as the Minister of the FCT have been notified. Furthermore, heads of security and intelligence agencies have also been briefed.

Before the Presidential directive, some State Governors already announced similar directives in their respective States, but the directive of Mr President generated criticisms and these critics are questioning the legality of Mr President’s directives.

Interestingly, on 30^th of March 2020 (a day after the presidential directive on lockdown and restriction of movement) the President issued and signed the Covid-19 Regulations 2020, given effect to the aforesaid directive in review.

It is commendable of Mr President that, following the criticism questioning the legality of the President’s directives in the broadcast of 29^th March 2020, Mr President has gone ahead to give legal backing to his directive on lockdown and restriction of movement in Lagos, Ogun and FCT within two (2) weeks by issuing and signing the Covid-19 Regulations 2020. This the President did in exercise of his power under sections 2, 3, and 4 of the Quarantine Act 1926. By section 4 of the Quarantine Act, the President is empowered to make regulations for:

1. prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;
2. 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;
3. 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;
4. 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;
5. prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
6. 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;
7. generally for carrying out the purposes and provisions of this Act.

Unfortunately, the Covid-19 Regulations 2020 is inelegantly worded, as the Regulations simply declared Covid-19 as an infectious disease and copied the wordings of the President’s address of 29^th March 2020, particularly from paragraph 34. However, this does not affect the validity of the Regulations in anyway.

The Covid-19 Regulations 2020, which is made pursuant to the Quarantine Act is valid and has the force of law. It is rather curious for anyone to contend and argue that the President cannot rely on the Quarantine Act to curtail the right to freedom of movement as contained in section 41 of the 1999 Constitution of Nigeria (as amended).

It is elementary law that section 45 of the 1999 Constitution of Nigeria (as amended) provides for “Restriction on and derogation from fundamental human rights.” Section 45 (1) (a) of the 1999 Constitution is particular in providing that:

(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.  (Emphasis supplied).

The meaning of “law’ in section 45 of the Constitution quoted above is not restricted to laws made by the National or State House of Assembly. It was in Akunwata Ogbogu Mbanefo v Nwakaibie Henry Molokwu & Ors (2014) LPELR-22257 (SC) at p. 48, the Supreme Court held that:

The interpretation of the word ‘law’ as prescribed under s. 45 of the Constitution cannot be restricted only to statutes of Parliament. It would include rules and regulations guiding community which assist them in the maintenance of peace and tranquility…

It is also no use emphasising that the Covid-19 Regulations 2020 is a subsidiary legislation and by the authorities of Ajadi v. Ajibola (2004) 1 LRECN 283 at 341^B; Adams v Umar [2009] 5 NWLR (Pt. 1133) 41 at 36; INEC v. Oshiomhole [2009] 4 NWLR (Pt. 1132) 607 and so many other cases, such subsidiary legislation, as the Covid-19 Regulations 2020 has a binding effect and a force of law as the Quarantine Act, save where there is any inconsistency between the provisions of the Regulations and the provisions of the Quarantine Act.

It is interesting to note and commend Governor Udom Emmanuel of Akwa-Ibom State for making and issuing the Quarantine and Restriction of Movement Regulations pursuant to his powers under section 8 of the Quarantine Act. Other State Governors, who ordered lockdown and restriction of movement in their respective state are urged to follow suit and give effect to the provisions of section 8 of the Quarantine Act, which provides that:

Where the President has failed to make any such regulation under s. 4 of the Quarantine Act, power to make such regulation 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.

Doctrine of Necessity

Assuming without conceding that the Presidential directive in review lacks legal backing and the Covid-19 Regulations 2020 cannot validate the said directives on lockdown and restriction of movement, these directives can still be excused under the ‘Doctrine of Necessity’.

In an article – The Doctrine of Necessity in Perspective – published by Sahara Reporters on February 13, 2010, an anonymous author wrote for Sahara Reporters on the Doctrine of Necessity thus:

The doctrine of necessity is a rarely used political concept or utilitarian idea and is used to define and validate extra-constitutional issues that fall outside the purview of the constitution but are necessary to preserve political [societal] stability. The fundamental objective of the doctrine is to satisfy the exigencies which have been created by certain situations outside the contemplation of the constitution or the rule of law; and its significant feature is the deliberate circumvention of the constitution or some aspects of the rule of law in order to get out of political quagmire. It is also a situation where the rule of law and constitution has to be adulterated by extra-legal civil means in the short term in order to preserve the constitutional, the rule of law, the government and democracy in the long term. Simply put: to save the country, the constitution has to be dumped and the rule of law has to be slanted. In addition, the doctrine is not a legal theory but a concession to human weakness.  It is also a political arrangement that has garnered some form of legal validation and global support.

Nigeria is familiar with the Doctrine of Necessity. The locus classicus on the Doctrine of Necessity in Nigeria is the case of Lakanmi & Anor v. Attorney General (West State of Nigeria) 1971 1 UILR 201; (1970) LPELR-SC.58/69. It was in the popular Lakanmi’s case that the Supreme Court of Nigeria gave judicial imprimatur to the Doctrine of Necessity in our constitutional jurisprudence thus:

We think it wrong to expect that the Constitution must make provisions for all emergencies. No Constitution can anticipate all the different forms of phenomena which may beset a nation. Further, the executive authority of the Federation is vested in the President by section 84 of the Constitution and we think in a case of emergency he has power to exercise it in the best interest of the country, acting under the Doctrine of Necessity.

It could also be recalled that during the reign of President Umaru Yar’Adua, the National Assembly of the Federal Republic of Nigeria had to pass a resolution on the 9^th of February 2010, empowering the then Vice-President (Dr. Goodluck Ebele Jonathan) to act as President. This was following the failure of the President to transmit a letter to the National Assembly informing the National Assembly that he was otherwise unable to discharge the functions of the office.  It was and also a constitutional requirement that until the President transmits to the National Assembly a declaration to the contrary, the functions of the President would be discharged by the Vice-President as acting President in accordance with section 145 of the 1999 Constitution.

The National Assembly salvaged the situation by invoking the Doctrine of Necessity as a panacea to the constitutional crisis created by the failure of the then President to comply with the constitutional handover of power and thus filling up the lacuna created by the long absence of the then President from office.

In the present circumstances of the Covid-19 pandemic, it became a matter of necessity to order a lockdown of the nation and restrict movement. As noted in the article referenced above, “The doctrine of necessity though, politically necessary in some situation, it should not be seen or regarded as the best solutions to all problems; hence politicians will always see it as the most convenient way to abandon the constitution, an action that  may escalate into the violation of the rule of law and human rights.”

The gravest concern was that, given the dictatorial antecedent and propensity of President Buhari, critics were concerned that this present directive might be a reference point for Mr President or his successor(s) to unjustifiably restrict movement or order lockdown in future, hiding under the Doctrine of Necessity. While this concern is appreciated, what is surprising is the threat by some lawyers to challenge the present directive in court, even in the face of the grave concern and ravaging effect of Covid-19. To borrow the words of Tobi, JSC (of blessed memory) in Ugwu v. Ararume (2007) All FWLR (Pt. 377) 807 at 862, para. B, “It is this type of thing that makes the Hausa man exclaim Haba!”

As things were, Mr President could not explore the emergency power option under section 305 of the 1999 Constitution of Nigeria because the National Assembly is also on lockdown. It impossible to declare a state of emergency, when the National Assembly is on Covid-19-induced recess. Since declaration of emergency has become impossible, the directive on lockdown and restriction of movement becomes necessary to save the country of the Covid-19 pandemic.

Unfortunately, too, the National Assembly was quick to pack up without trying to put a quick law in place to help in containing and cushioning the effect of the pandemic. If they had made any such law empowering Mr President to issue such directive on lockdown and restriction of movement, such law would have been justifiable under section 45 (1) (a) of the 1999 Constitution of Nigeria and any executive directive in the nature of the present one will have a legal backing.

Conclusion

In the present Nigerian circumstance, the directives on lockdown and restriction of movement in the wake of Covid-19 is justifiable and excusable under the Doctrine of Necessity. It is also commendable, especially, as it is one of the measures recommended by the World Health Organisation (WHO) for controlling and preventing the spread of Covid-19.

There is also no doubt that, if these directives are challenged by way of lawsuit, the courts will either hold same to be legal under the Covid-19 Regulations 2020 (and other regulations that may be issued); or validate the directives under the Doctrine of Necessity. After all, even the courts and our judges are also ‘beneficiaries’ of the lockdown and restriction of movement.

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