Presidential action on COVID-19 in order
The lockdown imposed on Lagos and Ogun States, as well as the Federal Capital Territory, by President Muhammadu Buhari, in a broadcast on Sunday March 29, to take effect from Tuesday, March 31, has received mixed reactions.
Activists, senior lawyers and the intelligentsia have called attention to alleged flaws in the procedure adopted, presumed illegality of the presidential action, or failure to make adequate provision for the affected. Those in this group include Nobel Laureate, Professor Wole Soyinka and Messrs. Femi Falana and Ebun-Olu Adegboruwa, both senior advocates of Nigeria (SANs).
While the lawyers are concerned about the fine points of law, arguing that the President ought to have created a legal basis for his action before making the broadcast, and sending the legal document to the National Assembly immediately thereafter, Prof. Soyinka says it amounts to presidential usurpation of powers allotted to states as federating units. He called on the states to resist the attempt that could easily become a precedence for such unconstitutional acquisition of power in the future by the President.
However, Vice President Yemi Osinbajo, SAN, and professor of Law, and Attorney-General of the Federation (AGF) and Minister of Justice, Mr Abubakar Malami, SAN, have forcefully argued in favour of the lockdown. Having listened to both, we agree that the COVID-19 Regulations 2020, which the President signed on Monday, provide the necessary legal framework, for whatever emergency steps the President has taken.
Whereas the points made by the legal minds are noted, that powers should not be wilfully acquired in a democratic system, there are situations that call for urgent action by the President. Sections 3, 4 and 6 of the Quarantine Law provide sufficient cover for the President to assume the emergency powers he used. People were already dying of the COVID-19 pandemic all over the world; and the time had come to protect the citizens.
In saying this, however, we note that states have similar powers under the Quarantine Act, and indeed, states like Rivers and Osun had already invoked that power, by restricting entry into, and exit from, their territories. Lagos and Ogun, too, had imposed a partial lockdown before the presidential broadcast. Going forward, we suggest that federal and state governments should always meet to harmonize their actions. If states have power to exercise authority, the Federal Government might only need to back them up. What is required of the President, in that case, is only to make his broadcast, showing leadership and boosting confidence in the people.
A distinct feature of federalism is the distribution of power between the Federal Government and states, which are the federating units. State powers, which have been greatly eroded in Nigeria, should be jealously guarded and protected; so that we do not inadvertently slide into a unitary system. Even then, the actions of Rivers, Osun, Lagos and Ogun, among other states, even before the presidential broadcast, showed a willy-nilly operation of federal principles, even with the ballyhooed dismissal of Nigerian federal system as “unitary”, given the negative effects of long military rule, with its command and centralist mindset.
There are many things expected of the governments, in this period of global public health emergency. True, a Presidential Task Force (PTF) is in place, regularly briefing the press on evolving COVID-19 cases (new cases, successful treatment and discharges, and the number of deaths), it does not appear it is keeping pace with expectations of the people.
Basic is the need to test as many as require it. The facilities available have been unable to match the requests. Explaining this situation, the Nigerian Centre for Disease Control (NCDC) says only those who have manifest symptoms are being tested. This is certainly no way to arrest the disease before it is entrenched. Besides, tests would appear more readily available to those in office and power, than the general public, that urgently need them.
Most governors, ministers and other high public officials have gleefully announced that they and their households had tested negative. Even those like Governor Nasir El-Rufai (Kaduna), Bala Mohammed (Bauchi) and Seyi Makinde (Oyo) that tested positive all said they were yet asymptomatic. Why the discriminatory practice?
That is why President Buhari should use his wide federal powers to wade in. The PTF also said it was yet to have access to the billions of Naira contributed by captains of industry, to tackle COVID-19. This is no time to warehouse money meant to contain the disease. It should be released to increase the number and capacity of laboratories for testing the pestilence.
Nigeria, as the most populous Black country, has a duty to take steps to demonstrate our capacity to avert escalation of this disease. It is no time for people to work at cross purposes. Provisions of the Quarantine Act, and Section 305 of the 1999 Constitution, empower the President and governors to take swift and decisive actions to stop the virus, and we should be satisfied if they do so.
A lawyer is said to have filed an action challenging presidential authority in the circumstances. Others contend that only the approval of the National Assembly would make the presidential proclamation valid. Suffice it to say that neither the states nor the federal legislature, whose powers have been presumably hijacked, have complained. They are all behind the President.
The task of saving lives and property takes precedence over legalism and legal niceties. After the virus had abated, a review of steps and missteps can be undertaken. Doing so now would amount to costly distraction.
