The Attorney General of the Federation, Abubakar Malami, has defended the action of the President, Muhammadu Buhari, who ordered a total lockdown of movement and activities in the Federal Capital Territory, Lagos and Ogun State.
The President had made this order on the recommendation of the Ministry of Health as a necessary measure to contain the continuous spread of Coronavirus in Nigeria, particularly in the three states with the highest number of infection.
However, Femi Falana, SAN, human rights lawyer and Prof Wole Soyinka, Nobel laureate faulted the move of the president.
According to Falana, the move of the President to order a lockdown and restrict movement is not legally enforceable.
He argued that the decision has no legal backing hence unconstitutional.
Falana said,
“No doubt, the President is empowered to adopt any measures deemed fit to combat the dangerous disease but such measures have to be spelt out in a regulation made pursuant to section 305 of the Constitution or under the Quarantine Act.
“Otherwise the presidential order on restriction of movement in the affected areas cannot be enforced by the police.
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Soyinka, in a statement on Monday titled, ‘Between COVID-19 and constitutional encroachment’ held that the move of the president was drastic, irrational as the country is not in a war emergency.
He said,
“Constitutional lawyers and our elected representatives should kindly step into this and educate us, mere lay minds. The worst development I can conceive is to have a situation where rational measures for the containment of the corona pandemic are rejected on account of their questionable genesis. This is a time for unity of purpose, not nitpicking dissensions.
“So, before this becomes a habit, a question: ‘does President Buhari have the powers to close down state borders?’ We want clear answers. We are not in a war emergency.
“Appropriately focused on measures for the saving lives and committed to making sacrifices for the preservation of our communities, we should nonetheless remain alert to any encroachment on constitutionally demarcated powers.
“We need to exercise collective vigilance, and not compromise the future by submitting to interventions that are not backed by law and constitution.”
In response, the AGF, in a statement on Monday, said that the move of the President was not an encroachment on any provisions of the law.
He argued that the order for lockdown did not amount to a declaration of the state of emergency as prescribed by section 305(1) of the constitution as amended which required the approval of the National Assembly.
Malami said,
“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 coronavirus 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.”
Malami reiterated that the President acted rightfully under the powers conferred on him by the Quarantine Act 1990 CAP 384 LFN which has the title: “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”.
He stated further that “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.”