A SYNOPTIC OVERVIEW OF THE QUARANTINE ACT; THE PRESIDENT’S DIRECTIVE ON STATES AND THE EXTENT OF ITS SURVIVAL UNDER THE QUARANTINE ACT 1926
BY A. EDWIN
The president of the Federal Republic of Nigeria on the 29th day of March, 2020, has invoked the provisions of the Quarantine Act on Lagos state, Abuja and Ogun State, by declaring the localities mentioned above as Dangerous Infectious Areas, since the said places did qualify as “Dangerous Infected Local Places” according to the Act.
The Quarantine Act as a matter of antecedent was enacted in 1926. The Act is made up of eight sections that form the primary legislation and a list of numerous others as part of its subsidiary legislation.However, prior to this time, it has been a law in dead letters for ages because no condition whatsoever as a matter of exigency called for its enforcement. However, this era of the global pandemic of COVID-19 has called for its invocation.
Nonetheless, it is the writer’s intention to elucidate the extent to which the directive issued by the president is one that can be qualified as an exercise of his executive power under this Act. It is also worthy to recall that the power of the Nigerian president to a great extent is unchecked in numerous ways, however that is not the purport of this work and as such it will only amount to a wide goose chase if we embark on such a journey at this point of our national interests. Hence, this article shall be divided into three parts. While the first part will be concerned with appraising the Act, the second part underscores the extent to which the president’s directive on states shall survive if put to test and the third part shall proffer recommendations and finally a conclusion.
2.0 A GENERAL OVERVIEW OF THE QUARANTINE ACT, 1926.
Although it has been vividly stated by the U.S Court in the case of Jacobson V. Massachusetts that “a preamble is not part of legislation, hence it is a common introductory note inserted by its framers to ignite or express their own intention,” the Act began with a preamble which I humbly seek your leave to reproduce:
“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.”
Furthermore, by the Provisions of Sections 2, 3, 4, 5 and 8 of the Act, which I shall also reproduce hereunder;
Section 2: Interpretation
In this Act, unless the context otherwise requires-
“dangerous infectious disease” means cholera, plague, yellow fever, smallpox and typhus, and includes any disease of an infectious or contagious nature which the President may, by notice, declare to be a dangerous infectious disease within the meaning of this Act;
“local area” means a well-defined area, such as a local government area, a department, a canton, an island, a commune, a town, a quarter of a town, a village, a port, an agglomeration, whatever may be the extent and population of such areas.
Section 3: Power to declare any place an infected local area
The President may, by notice, declare any place whether within or without Nigeria to be an infected local area and thereupon such place shall be an infected local area within the meaning of this Act.
Section 4: Regulations
The President may make regulations for all or any of the following purposes-
- prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;
- 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;
- preventing the spread of any dangerous infectious disease from any place within Nigeria, whether an infected local area or not, to any other place withinNigeria;
- preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to anyplace without Nigeria;
- prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
- 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;
- generally for carrying out the purposes and provisions of this Act.
Section 5: Penalties
Any person contravening any of the regulations made under this Act shall be liable to a fine of N200 or to imprisonment for a term of six months or to both.
Section 6: Provision of sanitary stations
The President and within each State, the Governor thereof, may provide such sanitary stations, buildings and equipment, and appoint such sanitary anchorages as he may think necessary for the purposes of this Act
Section 8: State quarantine and powers
If and to the extent that any declaration under section 2 or 3 or 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.
As perfect as the provisions of the Act may seem, it may be worthy to mention that it may likely not settle into the mole hole of modern realities. This is because, the Act was enacted at a period when the nation has not been robbed in the garb of Independence and has not gained the status of a Republic, hereby making it impossible to envisage that Nigeria at a latter period of her existence will be divided into states in its interpretative section, because what was invoked during the pre-independence era were local areas and regions.
Also, the Act went further by virtue of Section 5 to prescribe penalties of two hundred naira or imprisonment for six months or both for individuals that would disregard and disobey such directives once issued. However, it is pertinent to understand that, the penalty for the 200 naira was intended by the draftsmen at a time when the Nigerian currency was to an extent valuable in going by economic standards. This is due to the reasoning that, if the Act had intended the penalty of two hundred Naira with regard to modern realities, then it would only have amounted to an exercise in futility, as a huge number of the Nigerian population would have preferred to be liable than staying indoors, achieving nothing. More so, it was further stated in clear terms, that there shall be production of sanitary stations or anchorages in all states as may be appointed by the president, for the purposes of enforcing the provisions of this Act. Although, the Act in its definitive section was unable to give a clue on what is the meaning of a “sanitary station.” A sanitary station in our contemporary society can be described as a place solely dedicated for health and medical purposes. However, it is grossly unfortunate that at such a time like this, the nation can only boast of six centers dedicated to fight a threatening pandemic that is ravaging and wrecking the global community.
By virtue of Section 8 of the Act, powers were conferred on the Governors of the then regions to declare such places as infectious localities, where the president was unable or unwilling to Act. It is relevant to state that as at the time when this Act was enacted, Nigeria as a British colony hadno president but was only ruled by a representative of the throne (the Queen). The intendment of the draftsmen was that such power shall be exercised by the Governors who were natives of Nigeria.
Furthermore, the Act did not provide for the requirement and training of medical and health workers or remuneration or at least a compensation scheme, for those whose lives may be lost in the circumstances. Thus, it is my humble submission on the grounds above that the Quarantine Act with all intents and purposes is due for amendment, and such must not only be done effectively, but must also be achieved with efficiency and specialty.
3.0 TO WHAT EXTENT WOULD THE PRESIDENT’S DIRECTIVES TO THE STATES INVOLVED SURVIVE?
During his address, President Muhammadu Buhari issued a directive, that the states (Lagos, and Ogun) as well as the Federal Capital Territory are hereby pronounced as “Infectious Local Areas” and there should be a cessation of movement for fourteen days.However, it is clear that the validity or survival of such directives in line with this Act can be argued from both sides of the coin, being the ideological divides of constitutional zealotry and conventional realism. On the one hand, one may be tempted to submit that the directives issued by the president, if founded upon the Provisions of this Act, will amount to an act in futility. This is because, the provisions of this Act can only be invoked in cases of dangerous infectious diseases like cholera, smallpox, yellow fever, typhus, etcetera, and according to the rules of construction, and as encapsulated in the Latin Maxim “expresiounis est exclusio alterius (the express mention of one (thing) is the exclusion of another). In Udoh V O.H.M.B , the Supreme Court held: “it is well settled principle of construction, that where a section names specific things among many other possible alternative, the intention is that those not named are not intended to be included.” Thus, one can humbly submit that, the pronouncement issued on Lagos state, Ogun state and Abuja does not qualify as the exercise of an executive power under the Act. However, this argument no matter how sound to the other school of thought, may not survive even on the basis of the Quarantine Act. This is because, by virtue of Section 2 of the Act, “the president may by notice declare any disease of an infectious or contagious nature within the provisions of this Act.” Thus, placing reliance on the Ejusdem Generis rule, they have strongly opined that, by the express provisions of the Act, the directive can survive because the president by the provisions of the same Act declare any disease as “dangerously Infectious” hereby making such pronouncement valid in law.
More so, it is also argued by the first school of thought that, assuming without considering the fact that the president can pronounce a disease to be “dangerously Infectious” he has no power to declare state of emergency without following due process as laid down in the Constitution of the Federal Republic of Nigeria. The President has not followed any of the stipulations of the law: he has not published in any Official Gazette in this respect neither has the National Assembly ratified it. They have also argued that an executive fiat is not the same as an Official Gazette publication and would equally not take the place of ratification of the National Assembly. Interestingly, the President has not issued any regulation in the form of subsidiary legislation as provided for under section 4 of the Quarantine Act and in both the realms constitutional and administrative law, executive fiats cannot take the place of statutory notices and regulations. However, this argument according to the other school can be jettisoned on the grounds of necessity because necessity is not birthed by law. Thus, extreme situations demand extreme measures and that is what the president has done. They further argued that, the pronouncement was not an exercise of executive fiat but a statutory right adorned on the president, thus, the argument of it being an executive fiat holds no water in law, and the statute did not stipulate that such a regulation should be made subject to ratification by the National Assembly.
Thirdly, the constitutional zealots have further argued that assuming without conceding that the exercise of such power is one that is prescribed by the Act, they have submitted that the power was rather exercised too late, in that the Governors of the affected states and the minister of the Federal Capital Territory have acted timeously, thus, placing the president in a position where such an exercise would be futile or better put, in want of his executive responsibility.For instance, the Lagos State House of Assembly has even enacted a law that will enable the Executive Governor of the state contain the dreaded COVID-19. Also, Ogun State and almost all states in the federation have locked up their respective borders. Hence, leaving them to ask, what the value of the directives is issued by the President during his address yesterday, since it mostly amounts to a repetition of existing directives. However, the argument on the other side of the divide (conventional realism)seems to have discountenanced the validity of this school, because according to the them, they opined that the action of the President does not derive validity from the pronouncements of the state Governors and that the states have acted timeously does not in anyway rip the president of his power to make regulations in accordance to the Act. Hence, placing reliance on the “Doctrine of covering the field” and finally submitted that the declaration of the President will take precedence.
4.0 RECOMMENDATIONS AND CONCLUSION
With respect to the overview, the following steps are hereby recommended to enable the country arrive in a state of preparedness to fight against the Coronavirus pandemic:
- The Quarantine Act 1926 should be amended with immediate effect since it does not cover the relevant actions to be taken at such a time as this. And this must be done by putting together all the necessary sectors in concern.
- That, if an amendment is not possible, the National Assembly should follow the stride of the British parliament and enact a law that will fit into modern realities.
- That, provisions for grabbing and equipping medical personnel, building of new infrastructure or renovation of the ones in the country to International standards should be incorporated in the Act.
- Create and dedicate more than six centers nationwide for the fight against the COVID-19 pandemic.
- And any other further steps that will enable the country emerge triumphantly in this battle against the COVID-19 pandemic.
In conclusion, I share the same view with the conventional realist, that this is not a point in our national lives where we should test every actions by its legality, but that all hands must come together as one nation, one hope and one people to do everything necessary to ensure that we emerge victorious, because at the end, what counts is the peace of a nation and not the legality of an act that was birthed by a law that did not foresee the manifold situations that may arise in the future.