Examining The Powers of The Rivers State Government to Demolish Houses in Enforcement of COVID-19 Lockdown Directives – By Honesty Eguridu, Esq.
Rivers State, South-South, Nigeria has been in the news for some weeks now for reasons of some controversial enforcement of Covid-19 lockdown directives by the state government. Many commentators have condemned the apparent highhandedness with which the Rivers State Executive Governor has so far implemented the lockdown in the state to prevent the spread of the covid-19 pandemic. The most recent of the series of actions that drew the irk of social media commentators was the demolition of two hotels – Prodest Hotel, Eleme, and Edemete Hotel, Onne on Sunday 10th May, 2020 on the orders of Governor Nyesom Wike for allegedly flouting COVID-19 quarantine measures in the state.
The point must be made that at the inception of the fight against the covid-19 pandemic in Nigeria Governor Nyesom Wike won the heart of many Nigerians for showing a resolute determination to defeat the pandemic. Unfortunately, the Governor has lost many of his fans following events of recent weeks. I sympathise with the governor and most of his colleagues in others states and all those at the forefront of the battle who are having sleepless nights trying to save lives while a few reckless individuals sabotage their efforts.Sabotaging government’s measures to defeat covid-19 is a serious offence that puts the lives of millions of Nigerians at great risk. And it must not be condoned for any reason. I belong to the school of thought that advocates severe punishment for those flouting quarantine measures and other directives to curb the spread of the virus. However no matter the enormity of the offence and the stringent measures/penalties put in place to curb the spread of the dreaded virus, enforcement of all measures must be in line with the rule of law
The Rivers State Government is said to be empowered to demolish the hotels by the provisions of the Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020 and the Executive Order RVSG 01, 2020 purportedly made pursuant to sections 2, 4 and 8 of the Quarantine Act, Cap. Q2 LFN, 2004. The Quarantine (Coronavirus [COVID-19] and Other Infectious Diseases) Regulations (No. 2) 2020 and the Executive Order RVSG 01, 2020 shall be referred to in this article as the Regulation and Executive order respectively. Now both the Regulation and Executive Order can be said to be subsidiary legislations. The Regulation provides that any person who contravenes any regulation or any Executive Order made thereunder commits an offence and is liable on conviction to a fine of:N50,000 (fifty thousand naira) where the offender is a natural person; andN1000, 000 (one million naira) where the offender is a body corporate.The regulation also provides that a person who is convicted shall in addition to the fine forfeit to the State any vehicle or item used in the commission of the offence. Now the question that should be bugging all well-meaning learned minds in Nigeria is whether the Governor of Rivers State has the power to prescribe penalties in a subsidiary legislation above what the principal legislation envisaged or prescribed.
The Quarantine Act, Cap. Q2 LFN, 2004 is a very short legislation with just 8 sections so it is very straight to the point and devoid of any ambiguity. The relevant sections to our discourse are sections 4, 5, 7 and 8. For the benefit of doubt I intend to reproduce the relevant sections of the Act here. Section 4 of the Act stipulates seven purposes for which the president can make regulations. While section 8 empowers any state governor to make any regulation with regard to any of the seven purposes listed in section 4 if the president fails to make regulation on any of them. Sections 4 and 8 are reproduced hereunder:
“4. Regulations
The President may make regulations for all or any of the following purposes-
(a) prescribing the steps to be taken within Nigeria upon any place, whether within or without Nigeria, being declared to be an infected local area;
(b) 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;
(c) 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;
(d) 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;
(e) prescribing the powers and duties of such officers as may be charged with carrying out such regulations;
(f) 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;
(g) generally for carrying out the purposes and provisions of this Act.”
“8. State quarantine and powers
If and to the extent that any declaration under section 2 or 3 or 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.”
Section 5 of the Quarantine Act prescribed the penalties for contravening any of the regulations made under the Act thus:
“5. Penalties
Any person contravening 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”.
The pertinent question here is where does the Governor of Rivers State derive the power to prescribe penalties to impound and auction cars and demolish buildings of contraveners of his regulations and executive order? The Quarantine Act is very explicit on the penalties for contravening any of the regulations made under the Act. The punishment is a fine of N200 or imprisonment for a term of six months. The Act never envisage nor empower the President or any Governor to prescribe any penalty in any of the regulations contemplated under the Act.It is trite that “while the sentence of the Court must be in accordance with that prescribed by the statute creating the offence, a Court cannot impose a higher punishment than that prescribed for the offence”. See ONAH v. FRN (2017) LPELR-43535(CA). What this means is that no authority while purporting to enforce the provisions of a piece of legislation can impose a punishment higher than what is prescribed by the enabling legislation. See also the case of AGBITI v. THE NIGERIAN NAVY (2007) LPELR – 4893 (CA) and ALI v. FRN (2016) LPELR – 40472 (CA).
It must also be emphasized that the Regulation and Executive Order of the Rivers State Governor are mere subsidiary legislations which derive their validity from the Quarantine Act. Even though a subsidiary legislation has the force of law, it cannot override the provisions of its enabling law. The Regulation and Executive Order can therefore not impose penalties outside of and higher than what the Quarantine Act prescribes or envisage. Furthermore, the rule of law implies the separation of power. As Baron Montesquieu rightly observed centuries ago, the only way to guarantee the liberty and freedom of the people is to ensure that power is not concentrated in one person or organ. If the entire power of government is concentrated in one person or organ, then, there is strong possibility of abuse and tyranny. Today, all constitutional democracies have settled on separation of power as a fundamental cornerstone of the rule of law.
The Nigerian Constitution gives an elaborate expression to this fundamental idea by separating the legislative, executive and judicial powers and vesting each on three different organs whose personnel should not be comingled. Of course, this strict separation is moderated by checks and balances that allow different organs of government to support one another for effective administration. I am of the view that the Rivers State Governor while purporting to curtail the spread of the covid-19 pandemic in his state assumed the functions of the three organs of government. He usurped the powers of the State House of Assembly and enacted the Regulation and Executive Order prescribing draconian penalties. He went further to accuse and convict contraveners of the Regulation and Executive Order thereby usurping the powers of the Court to try and convict offenders in the State. He went further to personally supervise the execution of his judgment which is the demolition of the hotels allegedly used in contravening the provisions of his Regulation and Executive Order.
Section 7 of the Quarantine Act under which the Rivers State Governor purportedly derives his powers to legislate his draconian Regulation and Executive Order provides thus:
“7. Jurisdiction of magistrates
Proceedings for imposing any fine or imprisonment under this Act or for recovering any expenses incurred or charged by the Government in carrying out the provisions ofthis Act may be commenced before and determined by any magistrate.”
The Quarantine Act expressly provides that it is only the court of law that can impose any punishment on the violators of any Regulation made under the Act. It goes without saying that the actions of the Rivers State Governor chronicled in this article amount to flagrant violation of the sacred provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which he swore to defend. And this must be condemned by all well-meaning Nigerians and all good people all over the world.
It is however pathetic that some senior members of the Bar have risen to defend these acts of lawlessness of the Rivers State Government forobvious reasons of partisan interests. I stumbled on an article credited to the Hon. Attorney General of Rivers State, Prof. Zacchaeus Adangor titled “The Emerging Dictatorship in Rivers State ─Adegboruwa, SAN blast Gov. Wike: A Rejoinder By River State Attorney General, Prof. Zacchaeus Adangor”. By the said article the learned Attorney General rose in fierce defence of the Regulation and Executive Order and all the actions and measures put in place to enforce them. He justified the constitutionality of the provisions of the Regulation and Executive Order by stating that they provides for summary trial and that the forfeiture provided for under the Regulation is a court-ordered forfeiture and that no vehicle could be auctioned without an Order of the trial Magistrate Court following conviction of the owner thereof. With due respect to the learned Attorney General of Rivers State, his attempt to dress the unconstitutionality of the Regulation and Executive Order and all the steps taken by the executive arm of Rivers State Government in that respect with a garb of legality is futile and smacks of acover up of the illegality and executive violation of the fundamental rights of the citizens of Rivers State.
Interestingly the Hon. Attorney General of Rivers State acknowledged that there is a place for the court in determining the guilt or otherwise of persons accused of committing an offence and in determining the appropriate sanction for the alleged offence. Why didn’t the Hon. Attorney General advise his boss to charge the hoteliers to court for the alleged breach rather than taking the laws into his hands to demolish their properties without the benefit of fair hearing? There is no doubt that the Rivers State Government has violated the rights to property of some Rivers State indigenes explicitly guaranteed under section 44 (1) of the 1999 Constitution (as amended). There is also a clear violations of the rights to fair hearing and fair trial of the alleged offenders guaranteed under section 36 of the 1999 Constitution (as amended). Section 36 (12) of the 1999 Constitution provides that no person shall be convicted of any criminal offence unless the offence is defined and the penalty therefore prescribed in a written law. It is clear from the foregoing that the Governor has no power to prescribe any punishment under the regulations and executive ordermade pursuant to the Quarantine Act. So the punishment prescribe under his regulation and executive order are not enabled by any written law and therefore violate the provisions of section 36(12) of the 1999 Constitution (as amended).
The executive government of Rivers State has acted ultra vires its powers and has breached the constitutional tenets of the Rule of Law and respect for civil liberties. The Hon. Attorney General of Rivers State and all those in position to render legal advice to the Governor have a binding moral and constitutional obligation to advise the Governor to jettison the offending provisions of the Regulation and Executive order and allow for the reign of rule of law in the state. There is no better time than now for the Governor to make restitutions to forestall a situation where the current administration will incur liabilities in litigation costs and damages for the tax payers and good people of Rivers State.
Honesty Eguridu, Esq is a Legal Practitioner based in Lagos.
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