Covid-19 And Issues Around Federalism

By Emmanuel Onwubiko 
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The emergence of the CORONAVIRUS PANDEMIC IN NIGERIA has brought with it some issues with deep rooted underlying political undertones one of which is the separation of powers between the National and by-national political institutions.

To put it in a very plain language, the coming of the health challenge and the consequential declarations of lockdown across the Country has raised the question of where the boundary lies between the exercise of Presidential power and gubernatorial powers and functions.

Another underlying political development that has evolved since the advent of the series of curfews and shutdowns both by President Muhammadu Buhari and the governors is the need to properly dissect the possibilities of conflicts between the quarantine Act of 1926 and the Grund Norm of Nigeria which is the Constitution of the Federal Republic of Nigeria of 1999 as amended.

However, what is not debatable is that there is no way any smaller legislation or statute will edge out the Nigerian Constitution in the hierarchy of powers because the Constitution which is interpreted as the Supreme law of Nigeria spells out clearly that should there be conflict of that shape then the Constitution automatically overrides the other law to the extent of the irregularities. This is why the primacy and supremacy of the Constitution is unambiguously highlighted in section 1 of the Constitution of the Federal Republic of Nigeria.

As a student of politics and an observer of politicians, I was worried when the President unilaterally declared a total shutdown of some states such as Lagos and Ogun State even before he went back to the Presidential legal archives to extract the relevant sections of the Quarantine Act of pre-independence epoch to cite as the authority for making such a blanket declaration. His declaration was not captured under section 305 of the 1999 Constitution which Provides for the imposition of a State of emergency in the Country or any part thereof . The section empowers the President to issue the declaration of emergency by way of official Gazette.

I sensed that there was conflict as soon as the President finished his pre-recorded television broadcast because since Nigeria runs a FEDERALISM which includes the center and the component parts which have some levels of autonomy, I had expected at least a conference call from President Muhammadu Buhari and these Governors to so reach a determination because the Constitution recognises the governors as the political heads of their respective states and unless there is a national EMERGENCY declaration made by the President and passed by the National Assembly in line with the relevant constitutional provisions, the President can not just sit in his office in Abuja and shut down Lagos or indeed any other states within the Federal structures when there is no war.

This is because Nigeria does not run a UNITARY SYSTEM OF GOVERNMENT.

The signs that there was some silent angst emerged when the Ogun State governor did not begin the implementation of the LOCKDOWN from that same date like Federal Capital Territory but moved it to Friday to give the residents of Ogun State the opportunity to stock up their kitchens and then join in the total lockdown.

But the Lagos state governor decided to abide by the declaration made by the President and on two occasions stated that only the President who made the declaration of the curfew can decide otherwise.

This attitude of the Lagos state governor interrogated the place of FEDERALISM in all of these scenarios. This would later be manifested when the Federal and state MIGHT clashed between the Rivers State Government and the Federal Government in which case the former arrested two Pilots for flouting the Rivers State's executive order limiting movements into Rivers State even as the Federal government overshot herself when the ministry of aviation which had shut all airports later authorised some helicopters to fly in crude oil workers into Rivers State without regards to the extant executive order by the Rivers State's government. We will return to the issue but let us look at the powers of state governors bus a bus the powers of Mr President to rely on the Quarantine Act of 1926 to declare a lockdown.

Specifically, Chapter 1, part 2, section 5 of the Constitution of the Federal Republic of Nigeria of 1999 as amended states: “(1) Subject to the provisions of this Constitution, the executive powers of the Federation: (a) shall be vested in the President and may subject as aforesaid and to the provisions of any law made by the National Assembly, be exercised by him either directly or through the Vice-President and Ministers of the Government of the Federation or officers in the public service of the Federation; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws. (2) Subject to the provisions of this Constitution, the executive powers of a State: (a) shall be vested in the Governor of that State and may, subject as aforesaid and to the provisions of any Law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or officers in the public service of the State; and (b) shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws. (3) The executive powers vested in a State under subsection (2) of this section shall be so exercised as not to: (a) impede or prejudice the exercise of the executive powers of the Federation; (b) endanger any asset or investment of the Government of the Federation in that State; or (c) endanger the continuance of a Federal Government in Nigeria. (4) Notwithstanding the foregoing provisions of this section:- (a) the President shall not declare a state of war between the Federation and another country except with the sanction of a resolution of both Houses of the National Assembly, sitting in a joint session; and (b) except with the prior approval of the Senate, no member of the armed forces of the Federation shall be deployed on combat duty outside Nigeria. (5) Notwithstanding the provisions of subsection (4) of this section, the President, in consultation with the National Defence Council, may deploy members of the armed forces of the Federation on a limited combat duty outside Nigeria if he is satisfied that the national security is under imminent threat or danger: Provided that the President shall, within seven days of actual combat engagement, seek the consent of the Senate and the Senate shall thereafter give or refuse the said consent within 14 days.”

The Quarantine ACT section 4 states: “. Regulations: The President may make regulations for all or any of the following purposes(a) (b) (c) (d) (e) (f) (g) 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 within Nigeria; preventing the transmission of any dangerous infectious disease from Nigeria or from any place within Nigeria, whether an infected local area or not, to any place 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.”

Others are: Section 22. Infected local area in Nigeria When the Minister has in the Federal Gazette declared any local area in Nigeria to be infected with a quarantinable disease, the following provisions shall operate in relation to any ship departing from any port specified by the Minister to any other port either within or outside Nigeria(a) (b) (c) (d) (e) the port health officer may and if so requested by the master shall examine any person who proposes to embark or is already on board the ship; the port health officer may require any part of a ship which is infected to be disinfected to his satisfaction; an authorised officer shall inspect any clothing, bedding or any person on the ship and which, in the opinion of the officer, may have been exposed to any infection and may require the disinfection or destruction of any such clothing, bedding or article, and the master shall disclose to the authorised officer any relevant circumstances; no person shall take or cause to be taken on board the ship any article which, in the opinion of the authorised officer, is capable of carrying infection unless that officer is satisfied that that article has been disinfected and, where necessary, disinfected; if the port from which the ship is leaving has been declared to be infected with plague, and if there is reason to believe that there are rodents on the ship, the port health officer shall cause the ship to be deratted or direct it to proceed to the nearest designated approved port convenient to the ship for deratting.

Section 23. Surveillance (1) Where these Regulations permit a port health officer to place a person under surveillance, the period of such surveillance shall not exceed such of the following periods as may be appropriate.

Then down the line the Quarantine Act stated as follows: (2) Proceedings for imposing any fine or imprisonment under these Regulations or for recovering any expenses incurred or charged by the Government in carrying out the provisions of these Regulations may be commenced and determined by any magistrate.

But as I said, there are lingering issues of where the powers of each between the governor and the President begins and ends especially in the case like now that we have a President that is authoritarian. The conflicts brewing between the Rivers State Government and the Federal Government of President Muhammadu Buhari tells you that there is the need for better understanding amongst all arms of governments and also for the National interest to override political party affiliations. To think that because the Rivers State's government under Mr. Nyesom Wike of the peoples Democratic Party (PDP) decided to insists in the enforcement of a state-wide curfew and the Aviation minister Hadi Sirika authorised some helicopters to violate the state made law and then the Inspector General of Police Mohammed Adamu dabbled into the political arena to withdraw the Rivers State's COMMISSIONER of Police Mustapha Dandaura for enforcing a legally enforceable law of Rivers state government. This has made the Rivers State Government to set up a parallel border security team of its own to enforce the state law. This is legally permissible because the state house of assembly is permitted by the constitution to make law for the protection of the public security and punlic good of their people.

The Rivers State Governor, Nyesom Wike, said on Monday that the state government would establish a task force to replace federal security agencies manning its borders.

Wike explained that the establishment of a task force to man the borders became necessary because of the likelihood of sabotage from federal security agencies.

The governor, who disclosed this on Monday while signing the Executive Order RVSG-02 No. 3 -2020 at the Government House, Port Harcourt, said, “This is the third Executive Order that I will be signing since the coronavirus pandemic started. This third Executive Order is very important.

“We suspect there will be sabotage on the part of the security agencies. That is why we are appointing a task force to man our borders. We owe our people a duty to protect them. There is likely to be sabotage. Our Task Force will be at the borders to protect our people.”

Wike maintained that the laws on the restriction of movement must be implemented for the safety of everyone..

Also, Attorney-General of Rivers State, Prof. Zaccheus Adangor, said the two legal instruments signed by the governor would help in the fight against coronavirus.

He said the Quarantine (Coronavirus (COVID-19) and other infectious diseases) Regulations (No. 2-2020) stipulates non-custodial sentences for offenders, adding that individuals will be fined N50,000 while corporate organizations will be N1million.

Adangor said that the regulations directed the Chief Judge of Rivers State to assign a judge or magistrate to try offenders.

The intriguing thing is that after this lockdown is over and the CORONAVIRUS challenge is defeated, Nigeria needs to be governed in accordance with the extant laws. I see a possibility that if not for the strong resolve of Governor Wike, this CORONAVIRUS PANDEMIC IN NIGERIA would have impeded on the essence of FEDERALISM.

Emmanuel Onwubiko is the Head of the Human Rights Writers Association of Nigeria [email protected] ; www.emmanuelonwubikocom; ; [email protected]

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