1926 Quarantine Act cannot legalise restriction of movement ― Adegboruwa
Lagos-based activist and legal practitioner, Ebun-Olu Adegboruwa (SAN), on Tuesday, stated that the Quarantine Act, on which President Muhammadu Buhari based his order to restrict movements, has no provision for the restriction of the movement of any citizen as a fundamental right expressly granted by the constitution cannot be taken away by assumption, inference or deductions.
Adegboruwa, who made this assertion in response to the statement of the Attorney-General of the Federation, Abubakar Malami (SAN) and the Special Adviser to the President on Media and Publicity, Mr Femi Adesina, said Section 41 (1) of the 1999 Constitution expressly dictates freedom of movement to all citizens and it cannot be taken away by way of executive proclamations or regulations, as an executive regulation cannot in law take away a fundamental right granted by the constitution.
According to him, the Quarantine Act of 1926, as its name and provisions connote, is meant for the isolation, care and treatment of victims of infectious diseases for the purpose of isolating them away from interacting with other members of the public, generally.
He explained that a law enacted for the benefit of those not infected by any disease cannot and should not be twisted to restrain them, adding that, “for the president to be entitled to make any regulation under Sections 4 and 8 of the Quarantine Act, he must have complied with the conditions precedent laid down in Sections 2 and 3 of the said Act.”
Adegboruwa said for the Act to be relevant, the president must first make a declaration of an infectious disease, by a notice duly published in the Official Gazette, stating such to be an infectious disease within the meaning of the Quarantine Act, adding that “the president must also make another declaration, by notice in the Official Gazette, stating the particular place affected as an Infected Local Area and such must be a well-defined area, such as a local government, a town or a community, and not just a blanket tag.
“This has not been done. How then do we lockdown citizens and detain them forcefully for two weeks, in one single spot, without any charge or offence alleged against them? The only regulation so far made under the Quarantine Act is the Quarantine (Ships) Regulations of December 4, 1968, containing 28 sections and 8 Schedules. There is no single provision therein, restricting the movement of persons.
“This is because the practice of quarantine has nothing to do with restricting movement of persons but rather to isolate those carrying infectious diseases. So, even under the Quarantine Act, the President has acted illegally. The President cannot by mere executive regulation, take away the freedom of movement, expressly granted under the Constitution. In any event, the regulations anticipated under sections 4 and 8 of the Quarantine Act are limited to those infected with infectious diseases for the purpose of their quarantine,” he said.
He explained further that there is nowhere in Sections 4 or 8 of the Quarantine Act that it is stated or anticipated that the president or governor could make regulations for the restriction of movement of persons on account of infectious diseases, against persons not so infected.
“Regulations in relation to quarantine are always limited to the infected persons. Laws purporting to infringe upon or derogate from the fundamental rights of citizens must be express, explicit, unambiguous and not subject to personal considerations and permutations, to prevent abuse. The Quarantine Act does not contain any provision expressly authorising the restriction of movement of citizens and such power must not and cannot be assumed by the president.
“We cannot take away the fundamental rights of citizens through executive proclamations made on the altar of some exigency or self-induced necessity, as the president had enough time since COVID-19 broke out, to have taken all reasonable steps within the law, to address it,” he said.
Adegboruwa concluded that he is not opposed to the steps taken by the president and some governors to address the COVID-19 pandemic, adding that, “I align myself totally with these measures for the safeguard of citizens; however, my primary concern is not to resort to a violation of the constitution under the guise of exigency, as that could well be a dangerous signal for perpetrating illegality, even in the time of peace.”