by Yusuf Oluwafemi Salako
This is no doubt a turbulent time.
We live in a time in the history of human existence where the world is afflicted by the scourges of Covid-19. This pandemic has caused seismic change in our ways of life and made us all suspected carriers of this dreadful virus. The pandemic has sworn to cause cataclysmic change in our world and efforts must be consolidated in the war against this deadly virus. In a bid to contain and curb the further spread of this virus across the globe, the law as an instrument of social engineering has been deployed to face it headlong.
After all, as argued by the learned writer, Oluwatomi Ajayi in her work “Covid-19 Pandemic and Public Health Law”, where public health is concerned, the primary attention is the health of the community and the prevention of diseases and the instrumentality of the law is used to enforce laws or regulations that give directives on how to protect health and solve community or global health issues.
As part of efforts to win the war against the pandemic, the Lagos State government issued the Infectious Diseases (Emergency Prevention) Regulations 2020 effective from 27 March 2020. Section 3 of the Regulations declares that the purpose of the regulation is to prevent and contain the spread of Covid-19 within the local areas.
Relying on these regulations, the Governor of Lagos State, Mr. Babajide Sanwo-Olu issued a directive prohibiting the gathering of more than 20 people. On the 4th of April, 2020, Nollywood star, Funke Akindele celebrated her birthday in her house with over 20 people in attendance. Part of those alleged to have been at the event is the popular Nigerian artiste, Fashola Azeez popularly known as Naira Marley.
As news of the event spread, perhaps faster than the virus, over the internet, with claims and counterclaims jostling together on the legality and morality of the action of the couple, the police were forced to act.
On the 6th of April 2020, Funke and her husband were arraigned before a magistrate court in Lagos State for acting contrary to the directive issued by the Governor pursuant to the Lagos State Infectious Disease (Emergency Prevention) Regulation 2020 and thereby committing an offence punishable under section 58 Public Health Law of Lagos State, 2015. The couple pleaded guilty and were fined and handed a 14-day community service sentence.
The trial and the eventual conviction of Funke and her husband appear to have exposed the illegality of the directive made by the governor, the dormancy of the Lagos State Infectious Disease (Emergency Prevention) Regulation 2020 and the travesty of justice epitomized by the trial and conviction of the couple.
Ultimately, it will appear that the couple had pleaded guilty to an imaginary offence. I shall expound on this forthwith.
The Charge Sheet filed by the Office of the Attorney General of Lagos State against Funke and her husband with only one count reads:
“That you(1) Funke Akindele (2) Abdul Rasheed Bello on the 4th day of April, 2020 at 9 Gbadamosi Close, Amen Estate, Ibeju Lekki in the Lagos Magisterial District gathered at the aforementioned address with over twenty persons contrary to the social distancing directives of Mr Governor of Lagos State made pursuant to Regulation 8(1)(a)(b) and 17(1)(i) of the Lagos State Infectious Disease (Emergency Provision) Regulation 2020 and thereby committed an offence punishable under Section 58 Public Health Law Cap P16 Vol. 9 Laws of Lagos State, 2015.”
From the cold words of the Charge Sheet, it is clear that the defendants were arraigned before the court for contravening the directive made by the governor and thereby committing an offence under the Public Health Law. In simple terms: the defendants were charged under the Public Health law and not under the Quarantine Act. Not to muddle things up, the claimant simply said that the defendants have violated s 58 of the Public Health Act as purportedly embodied in the directive issued by Mr. Governor. The question is, have they? For the sake of clarity, it is imperative that the texts of s 58 are reproduced verbatim. The section provides thus:
“For any contravention of the provisions of this law or any Regulation made under this law for which no other penalty is provided, the offender commits an offence and is liable on conviction to a fine of One Hundred Thousand Naira(100,000.00) or to any non-custodial sentence and if a corporate body, to a fine of Five Hundred Thousand(500,000.00).”
To be liable under section 58, the defendant must have contravened the provisions of the Public Health Act or any regulation made under it. Hence, the first course of action is to run a lens through the provisions of the Act in order to elicit the part that makes the gathering of more than twenty people an offence.
Whatever the shade and size of your spectacles may be, you cannot find any provision in the Act making the gathering of more than twenty people an offence. It is non-existent and is as imaginary as the guilt of the defendants. It goes without saying that the next course of action as envisaged by s 58 is to move the lens away from the Act to the Lagos State Infectious Disease (Emergency Provision) Regulation 2020 to see if it is a crime to be in a group of more than 20 people. In essence, to be liable under the Act you have to contravene the Act (which has been shown not to be the case in the present case) or you contravene the regulation. The question then is, have the defendants contravene the Regulations?
The Regulations in section 7 devolves upon the governor the power to direct the restriction of movement within, into, or out of the Local Area, particularly, the movement of persons, vehicles, aircraft and watercraft on waterways save for the transportation or movement of essential supplies such as food, water etc. as well as movement for the purposes of procuring essential supplies food water, pharmaceutical products etc.
Section 8(1)(a) of the Regulations by the same stretch confers on the governor the power to restrict the gathering of persons in the local areas such as conferences, meetings, festivals, private events, religious services, public visits and such other events, save where the written approval of the governor is obtained for such gathering. Section 17(1)(2) then provide that any person who fails to comply with a restriction, prohibition or requirement imposed under the regulation shall be liable under the Quarantine Act, Public Health Law of Lagos State, 2015 and any other existing law to fine or imprisonment in accordance with extant laws.
What can be made of these provisions is that the governor has been empowered by the regulations to restrict the gathering of persons without a written approval from the governor.
Also, anyone that contravenes any restrictions made in line with this regulation can be prosecuted under the Quarantine Act or the Public Health Law of Lagos. The Lagos State government has elected to bring the action under the Public Health Law, 2015. The conclusion would then seem to be that anyone who contravenes the restrictions will be liable under section 58 of the Act.
It is duly advised that whoever has followed that trajectory should pause to catch his or her breath and examine the wordings of section 58 once again. According to the texts, one can only be liable where one has contravened either the Act or the regulation. This, it is submitted means that if the gathering of more than 20 people is to be made an offence, the Regulations must expressly state so.
What we have in the regulations is simply an enabling provision that gives the governor the power to restrict the movement of the people in the local areas; nowhere did the Regulations made such an offence, instead it said liability will be as provided by the Public Health Act which as earlier remarked did not make it an offence to be in a gathering of more than 20 people.
In essence, the Act and the Infectious Disease Regulation have not criminalized the gathering of more than 20 people, and it will appear that the only instrument that has criminalized this is the directive issued by the governor which in itself is incapable of making this a crime as held by the court of Appeal in the case of Okafar v Governor of Lagos State & Anor, (2016)LPELR-410669(CA) that the directive or order of a governor is not a law and that violation of same cannot result in criminal liability.
Against the foregoing analysis, it is clear that the Public Health Law and the Infectious Disease (Emergency Prevention) Regulations 2020 have not made the gathering of more than 20 people a crime. This means the defendants have not contravened the provisions of s58 of the Act. Essentially, the little exercise of looking through the provisions of the Law and the Regulations has revealed that there is no crime against the gathering of more than 20 people.
Even as I write, I am minded by the possible argument that since the Regulations have provided in section 17(1) (2) that anyone who fails to comply with any restrictions shall be liable under the Act, the Regulation has indirectly created an offence.
In essence, arguments might turn on the point that since the regulations give the governor the power to make restrictions and that anyone that contravenes that restriction will be liable under the Law, it then means that the moment anyone contravenes the restriction, it is contravening the Law which has then provided for liability under the Act.
To dispose of this conundrum, it is pertinent to clarify that the Regulation is a delegated legislation which must always derive legal force or authority from the substantive enabling law such as the Constitution or Act or law of the Legislature.
Delegated Legislations are thus seen as law and its legal status as law has been confirmed in a plethora of cases. See A.G Ogun v A.G Federation (1982) 1-2 S.C; Simeon Oladoye v The Administrator, Osun State(1996) LPELR-2552(SC) In principle, the governor can make subsidiary legislations when empowered by an enabling law. In other words, the Regulation is a law and has a binding force.
What is however important to us right now is the trite principle of law that a delegated legislation cannot have wider binding force or effect than the enabling statute. Essentially, there cannot be a conflict between the enabling statute and the delegated legislation. Where there is a conflict, such conflict must be resolved in favor of the enabling statute. See Doherty v Balewa(1963) 1WLR 494.
To drive this point home, the trite principle is that the Regulations of 2020 cannot conflict with the enabling statute, Public Health Law of Lagos State and as such cannot make an offence what the Law has not made an offence. By implication, the Regulations, although may be able to bestow on the governor the power to make directives that will restrict the movement of people as that is permitted by the Law. What the Infectious Diseases Regulations cannot do is to empower the Governor to issue a directive and then purport to use such directive as a basis for criminal responsibility.
This is because a subsidiary legislation must always derive validity from the substantive law. Hence, since the Public Health Law has limited offences to contravention of the Law and Regulations made by the Governor, it is clear that it is illegal to charge the defendants under the directive made by the Governor which is not covered by the Regulations.
If the defendants have not committed a crime under the Law or Regulations and with the directive of the governor adjudged not to be a law, the question then is what offence have the defendants committed? The basis for criminal responsibility in Nigeria is the constitution as captured by the provisions of section 36(12) CFRN. This section provides that every person is not to be convicted of any offence unless the offence is defined and the penalty is prescribed in a written law. This section defines written law to be an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of the law.
The Public Health Law is a law within this definition. The Regulations are laws within this definition. However, the directive is not a law. And as it has been shown, both the Public Health Law and the Regulations have not made the gathering of more than 20 people an offence. The directive that has done so is not a law within the contemplation of the constitution. The defendants cannot be prosecuted except under a written law which is non-existent in this case. See Aoko v Fagbemi & Ors (1961) 1 All NLR 400.
One further point that deserves mention is the fact that the Infectious Disease Regulations cannot be used as the basis of criminal liability at present. This is because the Regulations are now hanging in abeyance consequent upon the issuance of Covid-19 Regulations by President Buhari pursuant to the Quarantine Act on the 30th of March, 2020. Section 8 of the Quarantine Act provides as follows:
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.
The legal implication of these provisions is that the governor can only make the regulations where the President fails to do so. By the doctrine of covering the field, the Covid-19 Regulations made by the President covering the same area as covered by has hung the regulations made by Sanwo-Olu in abeyance. In this regard, the defendants cannot be liable under Regulations that are in abeyance. The legal effect of the foregoing exposition is that Funke would not have been liable even if the Regulations and the Law had provided for an offence within the lifespan of the Covid-19 Regulations made by the President. This is the case for everyone who attended the party including Naira Marley. Should Naira Marley and the other attendees be arraigned before the court on similar charges as the couple’s, they are advised not to plead guilty for a man cannot be guilty of an imaginary offence.
Perhaps this is a convenient point to address the issue with charging Funke and her Husband under the Covid-19 Regulations made pursuant to the Quarantine Act. Would she and her husband have been liable? It will appear that the answer is in the negative. Pursuant to section 5 of the Quarantine Act, any person that contravenes 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. Covid-19 Regulations imposing a lockdown in Lagos State is a Regulation under the Quarantine Act.
The question however is whether the Regulations made by the President prohibit the gathering of more than 20 people? A careful perusal of the 7 Regulations issued by the President will reveal the truism that not one criminalizes the gathering of more than 20 people as purportedly done by the directives from Sanwo-Olu. With respect to the shutdown, Regulation 1 only prohibits movement, not the gathering of people. This is what has been termed the stay-at-home order in local parlance.
The implication is that as long as you are staying at home, you have not contravened this regulation. Funke and her husband had the party at home. There is no evidence to suggest that they moved out of their house. Even if people, as many as one-third of the population of the world were gathered in their house, it is submitted that this is not a contravention of the order to stay at home.
This defence might not be available to attendees like Naira Marley who would have had to move to Funke’s house thereby contravening the order to stay at home. Perhaps events might turn to be interesting if Naira Marley and others can show that as at the time Covid-19 Regulations were made by the President, they were in Funke’s house. That means there was no movement as envisaged by the Regulations. Funke’s home, for the purpose of the Regulation, is their home.
However, this may not be possible seeing as the Police have confirmed that Naira Marley was not at Funke’s place when she and her husband were arrested, suggesting that he left already and thus incriminating him under the Quarantine Act. Perhaps this would have been the time to remain calm and not fret than to bolt away. Whatever the case may be, what is clear is that Funke and her Husband are not guilty of any offence whether under the Quarantine Act, Covid 19 Regulations, Public Health Law of Lagos State, Infectious Disease (Emergency Prevention) Regulations 2020 or the directives issued by the Governor.
Should the couple appeal the decision after pleading guilty to the charge? That is a matter for the couple to decide. However, it is important to pass one or two comments on what the position of the law is on this aspect. The Supreme Court in Nkie v FRN(2014) LPELR – 22877(SC) held that the appellant, having voluntarily pleaded guilty to the charge at the trial court, he cannot be heard to be making a different case on appeal.
He should not be allowed to approbate and reprobate in the same breath. In IDRIS v FRN(2018) LPELR-44713(CA), the court clarified that there are generally only two circumstances in which an appeal against conviction upon a guilty plea can be entertained. First, that the appellant did not understand and appreciate the nature of the charge when he pleaded guilty. Secondly, that upon the facts as admitted by the accused person, he could not in law have been convicted of the offence charged.
Perhaps nothing would have burrowed the furrow with the conviction of Funke if one had watched it on Africa Magic as fictional projects thrive in that clime. However, to watch Funke being prosecuted love for an imaginary offence calls for more to desire.
There is a place where a thick line is drawn between fiction and reality, fact and farce. That said, the whole incident seems to be a caricature. One begins to wonder why and how , Funke Akindele, a successful actress and lawyer could easily plead guilty without putting up some legal fights. Another factor that makes the whole incident look more of a comedy is the prevarication of the Police with the whereabouts of Naira Marley.
Today they are in search for Naira Marley; tomorrow he has turned himself in. Now the Police are saying they are still in search of Naira Marley. The day Funke and her husband were convicted, we saw people in court, and it makes one laugh at the whole event.
Salako is a 500 level student of the Faculty of Law, University of Lagos.