An Enugu State-based legal practitioner, Mr Chijoke
Ogbebe, tells RAPHAEL
EDE of Punch[1], that there is no
enabling law to prosecute those who brought coronavirus to
Nigeria
Do you think state governments should
press charges against people who returned from foreign trips and
refused to self-isolate thereby spreading
COVID-19?
Well, the only way the state government can do that is if there
is an enabling law. For instance, the lockdown that is going on
now; you can only prosecute those who have refused to comply with
the order to stay at home for this. But arresting those who have
been known to be infected by the virus and who have subjected
themselves to testing or isolation will require a law. You cannot
criminalise the action for now, you need to have a law that can now
make the action a criminal offence so that you can charge them.
Because if you charge them, under which offence? If it is in a
decent society, you have to come by law and that law has to be
promulgated. There is really no law on the ground that criminalises
the action in my opinion.
Does it mean that the Quarantine Act doesn’t have
punishment that will take care of this?
The Quarantine Act honestly is actually outdated. It is a law
that the colonial masters promulgated to protect themselves against
the natives, not the other way round. It is a law that was actually
used to protect the colonial masters against any diseases from the
natives. So the law itself needs to be updated to now state this
clearly. It must state the sanction for anyone who fails to declare
that he has a disease and did not declare it. So, the law itself
doesn’t have any sanction. There is no clear sanction against those
who break the provisions of the quarantine law. In the quarantine
law of 1926, there is no clear sanction against those who go
against the provisions of that law. Even that law cannot be used in
today’s Nigeria because the provisions are different from what is
going on now.
If the law is so outdated and is not meant to
protect the colonial masters as you said, does it not mean that the
provisions of that law cannot be invoked now?
It can be invoked because the constitution allows any law as
long as is not in conflict with the provisions of the constitution.
It allows any law that is already in force; it can be upgraded as
long as the law does not violate our constitution. But the law
itself is obsolete; it needs to be made to conform to present
modern demand. It is a law made to protect the colonial masters
only not for the natives.
Looking at what you have just narrated, does it mean
that there is no provision in our criminal code and penal code
under which they could be charged since they are clearly aware that
they have the virus and is contagious?
It is difficult to do that. Do you know why it is
difficult? Unless you subject yourself to a medical test
which the law recognises as the only way to prove that someone has
an illness; the person can claim not to have that illness. So,
government has to provide the facilities to test individuals
randomly. So if any person is suspected to be having an illness;
you test him and if it comes out positive and the person now
refuses to be quarantined, you can now arrest the individual based
on that. But at the same time again, you need a law that will
criminalise the action. There was a law making miscellaneous
criminal offence; now there is no way you can prepare that under
emergency bill. You can send a bill to the National Assembly and I
am sure they can give it accelerated passage. That law will
criminalise such an action but then again, you must set to have a
standard. Who tested the person to know that the person has that
illness? You cannot on your own say this person has that illness.
So the state has to provide facilities to test and after testing
and the person is proven to have that illness; if such persons
refuse to get themselves quarantined you now have the law
that makes it a criminal offence to refuse to quarantine. It is
very complex, it is not an easy thing. It is subjective unless the
person is tested through clinical method in a laboratory.
In an stance that such persons have been tested
positive and maybe they have spread it and people got it and died.
Do you still think that they should be held
responsible?
Well, I have looked at our statute books I have not seen
anywhere were you can criminalise the person. If you talk of
malicious damage, well unless you charge for an assaults or
battery; but this one is illness, knowingly that it is an illness.
Well you might do that but it might take some time because any good
lawyer can always get his client out of it; there are many
loopholes that will be explored. Unless you make a law clearly
stating that is a criminal offence.
You can do that through the National or State Houses of Assembly
but, as the law stand now it is difficult to prosecute somebody for
sharing illness knowingly because there are so many lacuna there. I
don’t think there is any law that clearly criminalise the person as
it is now.
Do you think state governments too should be blamed
for not shutting their borders in time?
I really think the federal and state governments ought to have
done what they are doing now. I am glad they are finally doing it;
it is not that late but I think they should have done it before
now. They should have taken measures to preempt this before
now.
To what extent should FG be blamed for not closing
the airports on time?
To a very large extent I think; I don’t know what they were
waiting for. The thing started in Asia and spread to the Europe. I
said that they should have been more proactive when it got to
Europe because Europe has proximity to us than Asia. Nigeria has a
large volume of passenger movement between China and Nigeria. I
think they should have shut our airports earlier than now. Do you
know that our neighbor- Niger and even East Africa- they don’t have
a single case of coronavirus because they shut their borders and
close their airports long before some countries did? They don’t
have a single case because they took action on time just in case
but Nigeria I mean I don’t know what happened and Nigerians are
known to travel widely and we have an active business relationship
between Nigeria and China.
Before shutting the airports, some people said FG
ought to have isolated returnees from foreign trips instead of
allowing them to self-isolate. What is your view on
this?
The federal government was not prepared enough at all if they
need preemptive action but they were too complacent. They should
have learn from other countries what they are doing. Italy and
United States are being blamed for the early mistakes they have
made. They should started taken any passenger from day one if you
know that you are from the troubled countries where the infection
was very high. They should have stop bringing them
immediately or 14 days isolation. If they have done that I
don’t think Nigeria will be under this pressure and stress. I
agreed with you that federal government did not prepared and they
are just being reactionary now.
An Enugu State-based legal practitioner, Mr Chijoke
Ogbebe, tells RAPHAEL
EDE of Punch[1], that there is no
enabling law to prosecute those who brought coronavirus to
Nigeria
Do you think state governments should
press charges against people who returned from foreign trips and
refused to self-isolate thereby spreading
COVID-19?
Well, the only way the state government can do that is if there
is an enabling law. For instance, the lockdown that is going on
now; you can only prosecute those who have refused to comply with
the order to stay at home for this. But arresting those who have
been known to be infected by the virus and who have subjected
themselves to testing or isolation will require a law. You cannot
criminalise the action for now, you need to have a law that can now
make the action a criminal offence so that you can charge them.
Because if you charge them, under which offence? If it is in a
decent society, you have to come by law and that law has to be
promulgated. There is really no law on the ground that criminalises
the action in my opinion.
Does it mean that the Quarantine Act doesn’t have
punishment that will take care of this?
The Quarantine Act honestly is actually outdated. It is a law
that the colonial masters promulgated to protect themselves against
the natives, not the other way round. It is a law that was actually
used to protect the colonial masters against any diseases from the
natives. So the law itself needs to be updated to now state this
clearly. It must state the sanction for anyone who fails to declare
that he has a disease and did not declare it. So, the law itself
doesn’t have any sanction. There is no clear sanction against those
who break the provisions of the quarantine law. In the quarantine
law of 1926, there is no clear sanction against those who go
against the provisions of that law. Even that law cannot be used in
today’s Nigeria because the provisions are different from what is
going on now.
If the law is so outdated and is not meant to
protect the colonial masters as you said, does it not mean that the
provisions of that law cannot be invoked now?
It can be invoked because the constitution allows any law as
long as is not in conflict with the provisions of the constitution.
It allows any law that is already in force; it can be upgraded as
long as the law does not violate our constitution. But the law
itself is obsolete; it needs to be made to conform to present
modern demand. It is a law made to protect the colonial masters
only not for the natives.
Looking at what you have just narrated, does it mean
that there is no provision in our criminal code and penal code
under which they could be charged since they are clearly aware that
they have the virus and is contagious?
It is difficult to do that. Do you know why it is
difficult? Unless you subject yourself to a medical test
which the law recognises as the only way to prove that someone has
an illness; the person can claim not to have that illness. So,
government has to provide the facilities to test individuals
randomly. So if any person is suspected to be having an illness;
you test him and if it comes out positive and the person now
refuses to be quarantined, you can now arrest the individual based
on that. But at the same time again, you need a law that will
criminalise the action. There was a law making miscellaneous
criminal offence; now there is no way you can prepare that under
emergency bill. You can send a bill to the National Assembly and I
am sure they can give it accelerated passage. That law will
criminalise such an action but then again, you must set to have a
standard. Who tested the person to know that the person has that
illness? You cannot on your own say this person has that illness.
So the state has to provide facilities to test and after testing
and the person is proven to have that illness; if such persons
refuse to get themselves quarantined you now have the law
that makes it a criminal offence to refuse to quarantine. It is
very complex, it is not an easy thing. It is subjective unless the
person is tested through clinical method in a laboratory.
In an stance that such persons have been tested
positive and maybe they have spread it and people got it and died.
Do you still think that they should be held
responsible?
Well, I have looked at our statute books I have not seen
anywhere were you can criminalise the person. If you talk of
malicious damage, well unless you charge for an assaults or
battery; but this one is illness, knowingly that it is an illness.
Well you might do that but it might take some time because any good
lawyer can always get his client out of it; there are many
loopholes that will be explored. Unless you make a law clearly
stating that is a criminal offence.
You can do that through the National or State Houses of Assembly
but, as the law stand now it is difficult to prosecute somebody for
sharing illness knowingly because there are so many lacuna there. I
don’t think there is any law that clearly criminalise the person as
it is now.
Do you think state governments too should be blamed
for not shutting their borders in time?
I really think the federal and state governments ought to have
done what they are doing now. I am glad they are finally doing it;
it is not that late but I think they should have done it before
now. They should have taken measures to preempt this before
now.
To what extent should FG be blamed for not closing
the airports on time?
To a very large extent I think; I don’t know what they were
waiting for. The thing started in Asia and spread to the Europe. I
said that they should have been more proactive when it got to
Europe because Europe has proximity to us than Asia. Nigeria has a
large volume of passenger movement between China and Nigeria. I
think they should have shut our airports earlier than now. Do you
know that our neighbor- Niger and even East Africa- they don’t have
a single case of coronavirus because they shut their borders and
close their airports long before some countries did? They don’t
have a single case because they took action on time just in case
but Nigeria I mean I don’t know what happened and Nigerians are
known to travel widely and we have an active business relationship
between Nigeria and China.
Before shutting the airports, some people said FG
ought to have isolated returnees from foreign trips instead of
allowing them to self-isolate. What is your view on
this?
The federal government was not prepared enough at all if they
need preemptive action but they were too complacent. They should
have learn from other countries what they are doing. Italy and
United States are being blamed for the early mistakes they have
made. They should started taken any passenger from day one if you
know that you are from the troubled countries where the infection
was very high. They should have stop bringing them
immediately or 14 days isolation. If they have done that I
don’t think Nigeria will be under this pressure and stress. I
agreed with you that federal government did not prepared and they
are just being reactionary now.