Faced with the uncertainty as to the actual number of people infected with the COVID-19 pandemic in Nigeria, the current spike in number of infected persons (particularly in Lagos State) and the projected surge in the number of COVID-19 patients, the Governor of Lagos State made the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 (the "Regulations") a few days ago. The Regulations, aimed at preventing further spread of the virus within the state were made pursuant to the Lagos State Public Health Law, and Section 8 of the Quarantine Act, Cap Q2 LFN 2004 (the "Quarantine Act").
The Regulations give the Governor powers to take certain measures geared towards preventing and containing the spread of COVID-19, saving lives, reducing ill health and ensuring that the economy of the state is not weakened as a result of the pandemic.
We have highlighted some of the important provisions of the Regulations below.
Declaration of Dangerous Infectious Disease and Local Areas
In line with the provisions of the Quarantine Act, COVID-19 has been declared as a dangerous infectious disease which constitutes a serious and imminent threat to the public health of the people.
In view of the infectious nature of COVID-19, the following have been declared as designated local areas - all Local Government Areas, Local Development Areas, roads, bridges, pathways, waterways around Murtala Mohammed Airport Complex, Apapa Port and Tin Can Island Ports ("Local Area").
Power Over Potentially Infectious Persons
The Governor is empowered under Regulation 6 to direct any potentially infectious person within a Local Area to go to a place specified for screening and assessment. He is also empowered to direct the removal of or command any potentially infectious person to go into isolation. The Regulations also apply to a potentially infectious person who is a child.
Restriction of Movement/ Social and Religious Gatherings
To the surprise of a number of people in Lagos State, we all woke up on Saturday, 28th March 2020 to a rumour that there would be a dusk-to-dawn curfew in the state starting from Sunday, 29th March 2020 in an effort to curb the spread of COVID-19. However, the State has come out to debunk this rumour. This notwithstanding, the Regulations allow the Governor to restrict movement of residents within, into or out of the Local Area, except for transportation or movement of essential supplies such as food, water and pharmaceutical products, and the movement for the purpose of procuring these essential supplies.
The Governor is also empowered to restrict or prohibit the gathering of persons in the Local Area such as conferences meetings, religious services, event centers and bars among others. It is important to mention that the Governor had earlier banned religious or social gatherings of twenty-five (25) people or more towards the containment of the COVID-19 pandemic prior to the commencement of the Regulations. This action has been ratified by paragraph 1(2) of the Regulations.
Trade and Commercial Activities
The Regulations also give the Governor the power to restrict the conduct of trade, business and commercial activities within the Local Area for such period as he deems necessary. Note however that this power of restriction does not affect the conduct of trade or business relating to essential supplies.
Acknowledging that it is not uncommon during periods like this, for some unscrupulous individuals to hoard essential goods for profiteering, the Regulations criminalize such acts. Consequently, where any person hoards food or artificially inflates the prices of essential supplies, the Governor can direct the seizure and forfeiture of the food, drugs and further direct that such forfeited food and drugs be utilized for the purposes of alleviating the supply needs in the Local Area.
Transportation and Disposal of the Remains of Persons Infected with COVID-19
In relation to the death of an infected person, the Governor has the power to determine how the remains of the person will be transported and disposed of. He may also order that the remains be cremated in line with the provisions of the Lagos State Cremation Law, 2015.
From the wording of the Regulations, it appears that the power of the Governor will override the deceased person's faith and burial wishes, whether as a Muslim, Christian or otherwise.
Any person who fails to comply with the directives under the Regulations or fails to comply with a restriction, prohibition or does anything contrary to the Regulations may be liable to an imposition of a fine, imprisonment or to both.
" It is in light of this constitutionally permissible derogation that the Quarantine Act, for instance, was enacted. The Quarantine Act empowers the President or the Governor as the case may be to issue regulations for the safety and protection of Nigerians. Section 4 of the Quarantine Act gives the President the power to make regulations to, among others, prescribe the steps to be taken within Nigeria where there is any dangerous infectious disease and take steps towards preventing the transmission of the disease."
Are These Regulations Constitutional?
As you are reading this, you may wonder whether the Governor can wield all these powers and what happens to your constitutional rights of freedom of movement and religion. True as it is, the Nigerian Constitution guarantees your rights to free movement, freedom of religion and association. However, these rights are not absolute and there may be a derogation from these rights in the interest of public safety or public health, just as we are currently experiencing with the COVID-19 pandemic. To buttress this fact, let me draw your mind to Section 45 of the Constitution. The section provides that your rights will not invalidate any law that is reasonably justifiable in the interest of public safety or public health. I am sure you will agree with me that COVID-19 is one that affects public health and safety.
It is in light of this constitutionally permissible derogation that the Quarantine Act, for instance, was enacted. The Quarantine Act empowers the President or the Governor as the case may be to issue regulations for the safety and protection of Nigerians. Section 4 of the Quarantine Act gives the President the power to make regulations to, among others, prescribe the steps to be taken within Nigeria where there is any dangerous infectious disease and take steps towards preventing the transmission of the disease.
You may ask, what about the issue of Quarantine? Isn't that an item that only the Federal Government has the power to legislate on? Although Quarantine is an item under the Exclusive Legislative List under the Constitution (which only the Federal Government may legislate upon), this power has been delegated to the State Governor by virtue of Section 8 of the Quarantine Act. The section provides that: "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."
It appears the Governor of Lagos has made the Regulations in line with the provisions of Section 8 of the Quarantine Act, among other laws empowering him to do so, as a result of the fact the Federal Government has yet to make any declarations in this regard despite the spike in the number of confirmed cases of COVID-19 in Nigeria.
The enactment and implementation of the Regulations by the Governor are a welcome development and will go a long way towards preventing the COVID-19 virus from spreading further. Failure to identify, isolate and treat infected persons will definitely have an irreparable impact on our public health facilities and it is imperative that this is prevented from happening as much as possible.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.