Like any other rational thinking Nigerian, I have applauded the stance of the Babajide Sanwolu-led Lagos State Government in the fight to curb the Coronavirus (referred to as COVID-19) pandemic. As such, I have, until recent deliberations, agreed with the legality of the Lagos State Infectious Diseases (Emergency Prevention) Regulation 2020 as pronounced by Mr. Governor. Hence when news started making the rounds that a prominent celebrity, in the person of Funke Akindele-Bello, threw a party, wherein a large number of persons where in attendance, I did not spare in the chastisement of the former on social media platforms. Hearing the news of the suspect’s arrest (now convict as it were) and subsequent arraignment however threw me into a state of deep thinking as I was unable to satisfy my conscience on the offence the suspect was alleged to have committed under the extant laws of the federation.
This is because Nigerian runs a democratic system of Government whereby the system of government in place is defined, limited and distributed by a body of fundamental law called the Constitution to wit: The 1999 Constitution of the Federal Republic of Nigeria. The Constitution, as been settled by plethora of Supreme Court decisions, to mean the Supreme, the Organic, and the Fundamental law of Nigeria. Also known as the grundnorm, the Constitution is also seen as the beginning and the end of the legal system. It is the barometer with which all statues are measured. It is in line with this kingly position of the Constitution, that we find the term constitutional supremacy over above all statutes, governments and individuals. This takes us to the backbone of this write-up; the salient provisions of Section 36(12) of the 1999 Constitution as amended which provides as follows:
“(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law.”
Suffice to state therefore that the benchmark for convicting any person for a crime is only where such crime/ offence is codified under a law and the penalty expressly stated therein. Anything short of Section 36(12) would be deemed inconsistent, illegal and void in law. In the extant matter, the suspect was arrested and charged to court for the offence of gathering with over twenty persons contrary to the directives/ regulations of Mr. Governor of Lagos State made pursuant to the Infectious Disease Regulation 2020. Under the aforesaid charge, the suspect’s actions were punishable under Section 58 of the Public Health Law of Lagos State 2015. In analyzing the legality of the suspect’s arrest, trial and conviction, it is noteworthy that a directive or executive order of a Governor, no matter how elegantly drafted, is not a law and the violation of same cannot attract criminal sanctions. However, to every rule there are exceptions. In this instance, where a law / Act validates a regulation and codifies a penalty for the breach of such regulation, the regulation is said to carry the force of law.
Now, there is no gainsaying that the Infectious Disease Regulation 2020, as clearly disclosed in the preamble therein, was made in pursuance to the Public Health Law and Quarantine Act. Whilst Regulation 8 is seen as the enabling regulation causing Mr. Governor to make directives restricting and prohibiting gatherings of twenty (20) and more persons in the State, Regulation 17(2) is presumed to provide the Quarantine Act and the Public Health Law as the laws prescribing the penalty/ punishment for the offence(s) committed. It is however noteworthy that the suspect in this instance was only charged under the Public Health Law of Lagos State. It is therefore safe to state that the Regulation, as pronounced by Mr. Governor of Lagos State, on which the suspect was said to have contravened stands solely on the Public Health Law and anything outside the provision of the Public Health Law must to that extent be extinguished and declared of no moment in law. Little wonder the draftsmen of Section 58 of the Public Health Law where emphatic as to the applicability of the punishment section which provides as follows:
“For any contravention of the provisions of this Law or any Regulation made under this Law for which no other penalty is provided, the offender commits an offence and is liable on conviction to a fine of One Hundred Thousand Naira (N100,000.00) or to any non-custodial sentence and if a corporate body, to a fine of Five Hundred Thousand Naira (N500,000.00).”
Conversely, a regulation can only be seen to be valid and binding when it is made in accordance to the provisions of the Public Health Law. Having diligently construed the provisions of the law, I make bold to say that the purported Infectious Disease Regulation 2020 can find no root or foundation in the Public Health Law. In ensuring the enforcers of the Public Health Law do not shy away from the provisions therein, Section 43 of the aforesaid law is explicit on the directives and regulations that can be made in pursuance of the said law. of Now what does the Public Health Law says. The Public Health Law, as disclosed from the preamble therein, is a law to provide for public health in Lagos State and for connected purposes.
Section 43 stipulates that:
The Commissioner may make regulations – for isolating all persons suffering or suspected to be suffering from infectious diseases; for anyone brought into contact with any such person; for inspecting and granting permits to persons travelling by sea or land from a place where an infectious disease has occurred, and for disinfecting their clothes and personal effects; for closing, destroying, disinfecting, cleaning or otherwise rendering harmless, houses, buildings, latrines, wells, dust-bins, dumping grounds and any place that by reason of the existence of infectious disease may be deemed advisable to so deal with; for prohibiting the removal of property from infected houses; for prescribing the mode of burial or disposal of the bodies of persons dying from infectious diseases; for the removal of persons from an infected area(s) in which the Commissioner has ordered evacuation; for establishing a cordon around any place where an infectious disease has occurred or otherwise preventing persons departing from or going to any such place; prescribing a list of ingredients that are hazardous to human consumption; for declaring whether compensation shall be paid out of the general revenue of the State or out of the funds of a Council; for the publication within the area affected of any notice under Section 21 or rule made under this Section; and generally for the enforcement of any of the provisions of this Law relating to infectious diseases.
Without a doubt, the Commissioner or his principal, Mr. Governor of Lagos State is empowered to make laws in respect of persons suffering from infectious diseases in order to isolate and evacuate them accordingly. It cannot be stretched to mean the prohibition or restriction of persons who have not be diagnosed with any infectious diseases (in this instance the COVID-19). This is where the canon of interpretation of statutes comes into effect. It is well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included, Hence the latin maxim ‘Expressio unius est exclusion alterius’ meaning the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication.
It is noteworthy that Mr. Governor of Lagos State is empowered by the provision of Section 43 of the Public Health Law to make regulations in respect of areas declared as Infected Areas as stipulated under Section 21 of the Public Health Law. Now section 21 (1) of the Public Health Law provides that the Commissioner may by notice or announcement declare any place or portions thereof an infected area and may order the evacuation of the whole or any part of such infected area. It is my humble submission that the use of the word may in Section 21 of the aforesaid Health law is obligatory and not discretional to the Commissioner in extension Mr. Governor of Lagos State. This is because the use of the term ‘may’ in the aforesaid statute is to effectuate a legal right on the Lagos State Government. Surprisingly, Mr. Governor of Lagos State has not made a public notice prescribing an area of Lagos State as an Infected Area under the Public Health Law. Hence by implication, Mr. Governor can only set out to make regulations in respect of infectious diseases upon the condition precedent of declaring in a gazette an Infected Area.
What then is the effect of the arraignment and conviction of the suspect under a regulation which was not made in accordance to a subsisting law? Such arraignment on such regulation must evidently give way and crumble as it is fine law that you can not place something on nothing and expect it to stand, it is surely to crumble. In the extant case, the Public Health Law relates to infectious areas as pronounced by the Lagos State Government and does not relate to social gathering of people who have not been presumed to infected with an infectious disease. Any directive criminalizing such acts without been backed by any clear act or law is to such extent inconsistent with the provisions of Section 36(12) of the 1999 Constitution and ought to be quashed. Ultimately, the actions of the Lagos State Government in making executive directives against social gathering is fraught with serious legal impediments and any conviction on such impediments is liable to be set aside by an appellate court.
It is my humble opinion that the Lagos State Government, though with the best of intentions, cannot use morality in legalizing the stay at home order and unless the full measure of either amending the Public Health Law or passing a whole new law to implement the prohibition of social gatherings along side other laudable measures, the directives so taken all amount to half measures which shall eventually collapse on the barometer of the constitutional rule and supremacy of the law.
Tosin Adesioye, Esq is a Lagos based Legal Practitioner and an Associate in the law firm of Ebun-olu Adegboruwa (SAN) & Company.