Background:
Lagos State (the “State”) currently has about 50% of the COVID-19 cases in Nigeria. Considered the 5th largest economy in Africa, the State with its estimated 20 million population, which is about 10% of Nigeria’s population, is a significant stakeholder in Nigeria’s ability to stem the tide of the COVID-19 Pandemic. In this brief, we review the State’s Infectious Diseases (Emergency Prevention) Regulations 2020 (the “Regulations”) which became effective on March 27, 2020, following the approval and signature of Mr. Babajide Olusola Sanwo-Olu, Lagos State’s Executive Governor.
A. Highlights + Features: |
||||
Title: |
The
Infectious Diseases (Emergency Prevention) Regulations, 2020. |
|||
Principal Purpose: |
a)
To
ratify all acts done and geared at curtailing the spread of COVID-19 prior to
the commencement of the Regulations. b)
To
prevent and contain the spread of COVID-19 within the defined areas (“Local
Area”). |
|||
Application |
Lagos
State, Nigeria. |
|||
No. of Sections: |
18 |
|||
B. Summary of Major Provisions of the Regulations and Remarks: |
||||
S/N |
Relevant Provisions |
Synopsis of the Provision |
Remarks |
|
1. |
Section 4 |
The applicable Local Area includes the
following, that is, all: a.
Local
Government Areas (LGAs) and Local Development Areas (LDAs) in
the State; b.
areas
surrounding the Murtala Mohammed Airport Complex, especially the international,
domestic, cargo and private wings; c.
areas
surrounding both the Apapa Port, Tin Can Island Port and the Apapa and
Kirikiri Lighter Terminals; d.
jetties
and other ports within the geographical boundaries of the State; and e.
entry
ports into the State within the meaning of the Federal Quarantine Act. |
||
2. |
Section 5 |
COVID-19 is labelled a Dangerous Infectious
Disease which constitutes a serious and imminent threat to the public health
of the people in the Local Area. |
Section 2 of the Federal Quarantine Act
sets out Dangerous and Infectious Diseases in Nigeria. The Regulation has declared
COVID-19 as one of such in Lagos State. |
|
3. |
Section 6 |
The
Governor may direct that: a.
a
person who is potentially infectious including a child should report at a
designated place for screening and assessment; b.
a
potentially infectious person who fails or refuses to go to a place specified
for screening and assessment be forcefully removed; and c.
a
potentially infectious person including a child should go into isolation for
an initial period of 14 days. In
the case of an order against a child, the Governor’s directions are to be
carried out by the child’s parent or guardian. While provisions for the
proper care of potentially infectious persons placed in an isolation center are
to be borne by the State, this will not be the case in the instance of a
person or child that is forcefully removed as both the cost of removal and
isolation will be borne by the person or child’s parent/guardian. |
The Governor is empowered to, where
necessary, direct that anyone who is potentially infectious, be forcefully
removed and placed in an isolation centre or other designated place. The question, who is a “potentially
infectious” person has apparently been left to the Governor to decide. |
|
4. |
Sections 7, 8, 9 and 10 |
The Governor may: a.
restrict
movement within, into, or out of the Local Area, except for the
transportation, movement or procurement of medical supplies, other essential
supplies and essential services personnel; and b.
restrict
and prohibit gatherings; c.
impose
requirements for obtaining written approval for gatherings; d.
order
the temporary closure of public places where gathering of persons occur; e.
order
the temporary closure of markets save for essential needs markets, and impose
restrictions on the number of persons that may be present in the public
place; f.
direct
a relevant security agency to breakup any gathering of persons in the Local
Area and take all persons who do not comply with the Governor’s directives
into custody for the purpose of screening, assessment or isolation; g.
restrict
the conduct of trade, business and commercial activities for such period as
may be deemed necessary; h.
order
the closure of public, educational and vocational institutions for such
period as may be deemed necessary. |
This is largely a derogation from the
fundamental right to free movement within Nigeria. Such derogation is
constitutionally-recognized under Nigerian law. |
|
5. |
Section 11 |
The Governor may give direction against
the offence of hoarding of or refusal to supply food, drugs and other
essential goods and services. Such direction may include that such food,
drugs and other essential goods be seized, forfeited or used for alleviating the
supply needs in the Local Area. |
Save for the application of Regulation
17, it would appear that the Regulations creates an offence in Regulation 11 for
which it has not prescribed a conventional punishment for. It is noteworthy
however that relevant provisions of the
Federal Competition and Consumer Protection Act, 2018 may, where the
facts are right, be invoked to punish an offence of the conspiracy or
arrangement to unduly enhance the price of any goods or services. |
|
6. |
Section 12 |
The Governor can specify what manner and
conditions which the remains of a person infected with COVID-19 shall be
transported, stored and disposed of, including an order for the cremation of
the remains. |
||
7. |
Section 13 |
The Governor may prohibit the
transmission or dissemination of false information on COVID-19. The Governor
may also prohibit persons from promoting unverified or unapproved cures,
vaccines or similar medicinal items that purport to cure, alleviate or reduce
instances of persons infected or believed to be so affected. |
||
8. |
Section 14 |
The Governor may direct that medical
practitioners and health workers notify the Governor, through the Ministry of
Health or other designated health officer, of persons with COVID-19 symptoms. |
||
9. |
Section 15 |
Other than the express powers so far
highlighted, the Governor has the general powers to impose any restriction,
requirement or give any directive he deems necessary to curtail the spread of
COVID-19 and may particularly in this regard: a.
order
any person to stay at home for a defined period; b.
deploy
law enforcement agents to enforce directives on restriction of movement or
access to public places; c.
allocate
spaces for or construct isolation centres and sanitary stations or
anchorages; d.
subject
to the payment of adequate compensation, take over possession of any property
to use as isolation centres and as storages for pharmaceutical and medical
equipment or supplies. |
||
10. |
Section 16 |
The
Governor may exercise any of his powers directly or through any person
authorized in writing. The powers may be exercised orally, in writing or in
any other manner the Governor considers necessary. |
||
11. |
Section 17 |
The Regulations creates 4 categories of
offences which are each punishable with a fine and or imprisonment under the
existing laws including the Federal Quarantine Act and Lagos State’s Public
Health Law. The offences are, the: a.
failure
to comply with a restriction, prohibition or requirement imposed under the
Regulations; b.
provision
of false or misleading information (whether recklessly or intentionally) with
a view to causing panic or disaffection among members of the public; c.
obstruction
of any person from carrying out his duties under the Regulations; and d.
doing
anything contrary to the Regulations. |
It
is arguable if the Regulations can create offences under any substantive law,
particularly where the substantive law has not expressly provided that
offences can be so created by Regulations.
While the Governor may immediately
enforce his powers or directives by seizures, forfeitures or direction
for the utilization of seized goods to alleviate supply needs as provided by
Regulation 11, it is a different case where a court of record is called upon
to convict a person further to the provision of Regulation 17. |
Our Thoughts in Conclusion:
The Preamble
to the Regulations sets out the facts that informed the Regulations. From
February 27, 2020 when the first COVID-19 case was identified in Ogun State, Nigeria
and the index patient was brought to Lagos State for treatment, to March 21,
2020 when COVID-19 cases in Lagos State began to spike on account of a number
of persons who flew back into Nigeria between March 13, 2020 and the said March
21, 2020 when the Nigeria’s international airspace was finally closed to the
landing of passenger flights into Nigeria; the Governor had tried to manage the
COVID-19 Pandemic with his admonitions, suggestions and directives, especially
on social distancing, respiratory hygiene, hand-washing and other World Health
Organisation recommendations. Thus, it was that by March 27, 2020, exactly one
month after the index case, the number of COVID-19 cases were on the rise while
the medical and related facilities/infrastructure for handling the Pandemic
remained inadequately constant. The Governor required a more stringent
approach, hence the Regulations; with the objective to save lives, reduce
ill-health and relatively preserve the State’s economy.
The
foregoing explains the mischief of the Regulations, but it may not save it,
where issues bothering on some fundamental rights are concerned. These
fundamental rights are, the: right to
life, right to dignity of person, right to personal liberty, right to fair
hearing, right against discrimination, and the right to acquire and own both
immovable and moveable property in Nigeria; all of which rights cannot be
derogated from by the Regulations. Even an Act of the National Assembly of Nigeria
is severely limited on the extent to which it can derogate from the rights to
life and personal liberty. Accordingly, it is important that the Regulations be
carefully administered, otherwise, where the stated fundamental rights are
unlawfully infringed as to occasion quantifiable damage, the State risks having
to settle established legal claims or judgments in the aftermath of COVID-19. Indeed,
it is hoped that COVID-19 should find no ally in legal claims in its current
onslaught on the economy of Nigeria’s Centre of Excellence.
For further information on the foregoing (none of which should be taken as legal advice), please contact:
Bidemi Olumide (bidemi.olumide@ao2law.com) or
Kitan Kola-Adefemi (kitan.kola-adefemi@ao2law.com) or
Arinze Ezeagu (arinze.ezeagu@globalrecoverylimited.com)
with the subject: “Briefing Note: Lagos State’s Infectious Diseases (Emergency Prevention) Regulations 2020”