NIGERIA HAS NO LAW AGAINST PUBLIC GATHERING DURING COVID-19 ERA.* Daily Law Tips (Tip 547) by Onyekachi Umah, Esq., LLM. ACIArb(UK)

“LAW” is not the heartbeats, whispers and wishes of lawmakers, it is not the policy guidelines, television and social media threats or plea of executives nor the prayers/common opinions of the people, rather Law is specific, organic, certain and often written (like, in Nigeria) impositions with sanctions by appropriate legislators or their delegates through appropriate legislative procedures in exercise of appropriate powers over certain issues, conducts and affairs of life. Laws are not mere wishful thinking and social media rantings or religious preachings.

In the wake of the Coronavirus pandemic in Nigeria, there has been several clamours for lockdown and prohibition of public gatherings. Federal Government in Nigeria, has ordered lockdown in major cities in Nigeria and some state governments have added their voices in support. So far, few Nigerians have been prosecuted and convicted for participating/organising public gathering. However, some elementary questions have not been answered, like, is there a law (federal or state) against pubic gathering in Nigeria? What is Public Gathering? (Note, there is uncertainty as to what a public gathering is in Nigeria, the number oscillates between 20 to 50 persons).

Well, my answer to the first question is in the negative with the following points of mine. First of all, prior to COVID-19 era, there was never an issue of Public Gathering Limitation in Nigeria. Hence, agitation for and against Public Gathering Limitation crept in with the COVID-19 pandemic and best practises for prevention of COVID-19. Consequently, our body of laws prior to COVID-19 era is not in issue here, hence the few laws and regulations made since March 2020 to April 2020 in prevention of COVID-19 will be examined.

Laws in Nigeria, are made by the National Assembly for the entire country and Houses of Assembly in the 36 states of Nigeria make laws for their respective states. Federal Laws and State Laws often delegate some law-making powers to executive government for efficient implementation of laws. So, in exercise of delegated law-making powers (quasi-legislative powers) the executive arms of government (like, the President, Federal Ministers, Head of Federal Parastatals, Governors, State Commissioners and Head of State Parastatals) make Executive Orders, Regulations and Rules for effective and efficient implementation of existing laws. Consequently, Executive Orders, Regulations or Rules legally made by an executive government is binding Law. Also, in Nigeria, offences are created by written laws/regulations. And, laws/regulations must clearly state the ingredients/substance (makeup) of an offence as well as penalty/sanction/punishment for the offence without leaving anything to conjecture.

With the index case of COVID-19 on 27 February 2020, Nigerians quickly remembered the outdated but binding federal law (Quarantine Act of 1926). The said Act regulates the prevention and control of dangerous infectious disease in Nigeria. Ahead of every other government in Nigeria, the executive Governor of Lagos State, relying on the Quarantine Act and the Lagos State Public Health Law, made the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 on 27 March 2020. Days after this, exactly on 30 March 2020, the President of Nigeria, relying on the Quarantine Act, made the COVID-19 Regulations of 2020. So far, drawing powers from the Quarantine Act of 1926, Nigeria has two (2) new sub-legislations in the nature of Regulations for the prevention and management of COVID-19.

Examining the Regulations according to their dates of birth, the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020 comes top with 18 paragraphs/sections (regulations). The Lagos State Regulation merely mentioned that the Governor of Lagos State “MAY” restrict or prohibit gathering of persons except where a written approval of the Governor is obtained. There is no place in the Lagos State Regulation or in any other subsequent Regulation of Lagos State, where the Governor of Lagos State restricted or prohibited public gathering in any part of Lagos State. Hence, while the powers of the Lagos State Governor to regulate, restrict, limit and even prohibit public gathering at the time of pandemic is not in doubt, the Governor is yet to exercise his powers on such. In restricting and prohibiting public gathering, when the Governor decides to make a Regulation on such (assuming it can still make such Regulation, even after the President has made Regulations), it will contain specific and certain number of persons that will be deemed to be public gathering as well as specific sanction for such. At the moment, there is no law or regulation that criminalises public gathering in Lagos State.

The COVID-19 Regulations of 2020 is for the entire Nigeria, being a Federal government Regulation. All through the 7 paragraphs/sections of the COVID-19 Regulations, there is no express or implied, direct or indirect creation of an offence on public gathering in any part of Nigeria. There is no definition of public gathering or sanction for same. Hence, no person can be arrested or prosecuted based on the COVID-19 Regulations for an alleged offence of public gathering. It must be emphasized that even the Quarantine Act does not restrict or prohibit public gatherings rather empowers the President and Governors to make necessary Regulations. Consequently, in Lagos and across Nigeria, there is no law/regulation (whether State or Federal) that prohibits public gathering. Social distancing is yet to be incorporated into our laws, although there is an urgent need for it. Until social distancing is provided in laws/regulations and breach of same is criminalised, there will be no legal basis for arrest and prosecution of persons who participate or organise public gatherings during pandemics.

It must be mentioned that mere television/radio comments, policy documents/broadcasts, social media posts or pubic threats and pleas of President, Governor or their agents is not law or regulation. At best, such threats/pleas are policy guidelines/directions and in Nigeria, policy guidelines of government are not laws. Unlike Executive Orders, Regulations or Rules which are law and having the force of law, policy documents/guidelines of government and other comments of government are not Law. Consequently, it is unlawful, illegal and unconstitutional for any person to be arrested or prosecuted for non-existing offence or crime. Offences must be clear and can only be created by law or regulation and not by common sense, inference, wishes, conjecture, popular opinion, judicial rascality or executive abracadabra.

Law enforcement agents must learn to wait for actions or inactions to be created as offence before enforcement and prosecution no matter how immoral or uncommon such actions and inactions may be. Nigeria is governed by written laws and not by wishful thinking and public opinions. By the way, persons that are arrested, harassed, prosecuted or convicted for non-existing offences, may approach court for their conviction to be quashed (rejected) and for serious monetary compensation running into million of Naira to be awarded against all persons that partook in such pungent glaring injustice. Lawyers who partake in such ignominious procedures should beware of the Rules of Professional Conduct of Legal Practitioners.

The writer is not unaware of COVID-19 pandemic and governments interventions to end it. The security and welfare of the good people of Nigeria are the primary purpose of government, however government must be lawful and law abiding in achieving such purpose. It is advised that constitutional procedures and statutory processes should be engaged at all times to avoid causing more problems in attempting to solve one. We must conquer COVID-19 without violating fundamental human rights of Nigerians. Stay at Home and Stay Healthy.

My authorities are:

1. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act of 1926.

2. Provisions of the COVID-19 Regulations 2020.

3. Regulations 1, 2, 3, 4, 5, 7 and 8 of the Lagos State Infectious Diseases (Emergency Prevention) Regulations 2020

4. Lagos State Public Health Law, Cap Ch. P16, Laws of Lagos State 2015.

5. Rules 30, 32, 56 and 57 of the Rules of Professional Conduct for Legal Practitioners, 2007.

6. The Supreme Court judgment on “Offence Unknown To Law” in the case ofCHIEF OLABODE GEORGE v. FRN(2013) LPELR-21895(SC)

7. The Court of Appeal judgment on “Offence Unknown To Law” in the case of OMATSEYE v. FRN (2017) LPELR-42719(CA)

8. The Supreme Court judgment on “Meaning of Regulation” in the case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006) LPELR-3161(SC)

9. The Court of Appeal judgment on “Meaning of Executive Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)

10. The Supreme Court judgment on “Policy Documents/Guidance” in the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).

11. The Supreme Court judgment on “Policy Documents/Guidance” in the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG. ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.

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