Dino Melaye upstages presidency, unsettles Osinbajo, Malami over Buhari

Senator Dino Melaye advocacy, reinforced by the argument of Olu Adegboruwa SAN, on President Muhammadu Buhari may have upstaged the Nigerian Presidency, and unsettling principal legal officers in the federal cabinet, essentially, the Vice President, Professor Yemi Osinbajo, a professor of law; and the Attorney General and Minister of Justice, Abubakar Malami.

Dino Melaye had said that President Buhari lacks the constitutional power to unilaterally order restriction of movement in any state without the approval of the National Assembly or State House of Assembly.

Senator Melaye declared that President Buhari lacks the constitutional power to take over the affairs of a state government without legislative approval.

Olu Adegboruwa SAN also questioned the constitutional power of President Buhari to order lockdown of Lagos and Ogun states.

Vice President Yemi Osinbajo SAN, in defence of President Buhari on the lockdown of Lagos and Ogun states, said the President invoked an Act of the National Assembly.

Professor Osinbajo argued that questioning the legality of the presidential order restricting movements in the FCT, Lagos and Ogun States is quite unnecessary as the action taken is not only important but very well backed by extant Nigerian laws.

“Regarding the legality of the shutdowns announced by the President – on Sunday – I think it is entirely legal. These steps are proactive, very relevant, important and backed by law.

“I am not so sure some of the people who have commented on the issue have come across the Quarantine Act.  There is a Quarantine Act of 1926, it’s been published in all of the Laws of Nigeria, every edition of the Laws of Nigeria, it is there.”

Prof. Osinbajo pointed out that, “what the Act does is that it allows the President to designate any local area, any part of the country, as a place that may be infected or under the threat of a communicable disease, and he can then make regulations of any kind.”
He insisted that   the powers come from the National Assembly because the regulation is an act of the National Assembly.

The Vice President maintained that by virtue of the constitutional rules, the 1926 Act is deemed to be an Act of the National Assembly.

“So, the President has extensive powers under the Quarantine Act of 1926. Also, Governors have extensive powers under the same Quarantine Act,” Osinbajo declared.
Furthermore, the Attorney General of the Federation and Minister of Justice, Abubakar Malami, also argued that the President acted rightfully under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN whose Long Title read thus: “An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases”.

Malami in a statement, citing Ebun Olu-Adegboruwa SAN criticism of President Buhari on restriction of movement in states, said the President did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both House of the National Assembly. The Minister argued that “even at that, Section 305(6)(b) of the 1999 Constitution (as amended) permits a proclamation of a State of Emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down.”

He faulted Adegboruwa for questioning the President’s powers to restrict movement and claiming that such powers can only be exercised by the State Governors and the respective State Assemblies.

“It is clear from the President’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious corona virus disease.

“The restriction of movement came on the heels of advice received by the President from the Federal Ministry of Health and the NCDC, the two focal agencies in the fight against COVID-19.

“It, therefore, becomes obvious and clear that the restriction order is part of a national quarantine measure.

“The correct position remains that the President acted rightfully under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN whose Long Title read thus: “An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases”.

“It is not in doubt that COVID-19 is an infectious disease of a contagious nature which the President as rightly declared under Section 2 of the Quarantine Act to be a dangerous infectious disease. Section 3 of the Act enables the President to declare any part of Nigeria as an infected area. Section 4 of the Act further empowers the President to make regulations to prevent the introduction, spread and transmission of any dangerous infectious disease. Section 6 of the Act requires the President and State Governors to provide sanitary stations, buildings and equipment.

“Thus, in recognition of the critical roles being played by the State Governors in these trying times, the Federal Government has been working with the States in line with the dictates of Section 6 of the Act.

“To this end the Federal Government is providing a financial stimulus to the Lagos State Government in the sum of N10 billion and to the NCDC in the sum of N6.5 billion for the benefit of the entire 36 States and the FCT,” Malami declared.

Malami’s statement reads in full:

It is apt to refer to excerpts of the speech thus: “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…

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.” [emphasis added] Expectedly, Mr. President’s patriotic step taken above in overriding national interest has been subjected to attack for allegedly being illegal. Ebun Olu-Adegboruwa, SAN claimed that the President lacked the powers to restrict movements in any part of the country without the consent of the National Assembly. I wish to note that he did not state any constitutional or statutory provision which the President has breached in the present circumstances.

It is important to inform the discerning members of the public that the President did not make a declaration of a State of Emergency under Section 305(1) of the 1999 Constitution (as amended) which would have required the concurrence of both House of the National Assembly. Even at that Section 305(6)(b) of the 1999 Constitution (as amended) permits a proclamation of a State of Emergency to run for a period of 10 days without the approval of the National Assembly when the parliament is not in session as in the present situation wherein the National Assembly has shut down. The learned silk also goofed when he questioned the President’s powers to restrict movement and claiming that such powers can only be exercised by the State Governors and the respective State Assemblies. It is clear from the President’s broadcast that what His Excellency sought to address is a public emergency occasioned by a dangerous and infectious corona virus disease. The restriction of movement came on the heels of advice received by the President from the Federal Ministry of Health and the NCDC, the two focal agencies in the fight against COVID-19. It, therefore, becomes obvious and clear that the restriction order is part of a national quarantine measure.

The correct position remains that the President acted rightfully under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN whose Long Title read thus: “An Act to provide for and regulate the imposition of quarantine and to make other provisions for preventing the introduction into and spread in Nigeria, and the transmission from Nigeria, of dangerous infectious diseases”. It is not in doubt that COVID-19 is an infectious disease of a contagious nature which the President as rightly declared under Section 2 of the Quarantine Act to be a dangerous infectious disease. Section 3 of the Act enables the President to declare any part of Nigeria as an infected area. Section 4 of the Act further empowers the President to make regulations to prevent the introduction, spread and transmission of any dangerous infectious disease. Section 6 of the Act requires the President and State Governors to provide sanitary stations, buildings and equipment. Thus, in recognition of the critical roles being played by the State Governors in these trying times, the Federal Government has been working with the States in line with the dictates of Section 6 of the Act. To this end the Federal Government is providing a financial stimulus to the Lagos State Government in the sum of N10 billion and to the NCDC in the sum of N6.5 billion for the benefit of the entire 36 States and the FCT. I also wish to draw the attention of the public to the provisions of Section 8 of the Quarantine Act which clearly gives high precedence to the President above State Governors in responding to matters of public health. No role is even conferred on the State Houses of Assembly under the Act. Section 8 provides thus:

“If and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this Act have not been made by the President, power to make any such declaration and to make such regulations 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.”

The President has notified the concerned States and the total restriction of movement as ordered by the President has not been previously made or implemented in any of the affected areas (Lagos, Ogun and FCT). It is therefore erroneous and mischievous for anyone to claim that the President is usurping the powers of State Governors and State Houses of Assemblies. The foregoing is strengthened by the fact that Quarantine is one of the items under the Exclusive Legislative List under the 1999 Constitution which means that a State House of Assembly cannot legislate on it. The above notwithstanding, going by the doctrine of covering the field, the President did not violate any law. The provisions of the Quarantine Act above enjoys constitutional backing under Section 45(1)(a) of the 1999 Constitution being a law that is reasonably justifiable in a democratic society in the interest of public health. Furthermore, it is common knowledge that the COVID-19 is a global pandemic that is crippling nations and economies, therefore, stringent measures at the national level are required. This is not a situation whereby the Federal Government is expected to wait for State Governments to act first. International Treaties to which Nigeria is signatory to recognizes the need to depart or derogate from fundamental rights (especially freedom of movement) obligations in deserving situations (such as public health) – see Article 4 of the International Covenant on Civil and Political Rights, Article 11 of the African Charter on Human and Peoples’ Rights It is also remarkable to note that the President has so far acted in accordance with the executive powers of the Federation conferred on him under Section 5(1) of the 1999 Constitution (as amended) as well as the provisions of Section 14(2)(b) which provides that the security and welfare of the people shall be the primary purpose of government. In the same vein Section 20 of the 1999 Constitution (as amended) requires the State to protect the environment and safeguard the water, air and land of the country.

This is not the time for technicalities or legal theatrics rather it is a time to stay safe and stay alive. I therefore enjoin all persons, entities and authorities to ensure strict compliance with the restriction order and the exemptions thereto as issued by the President in the overall good of our people and dear nation.

Signed
ABUBAKAR MALAMI, SAN
Hon. Attorney General of the Federation
And Minister of Justice

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