*Daily Law Tips (Tip 557) by Onyekachi Umah, Esq., LLM.
ACIArb(UK)
*FAILURE TO WEAR NOSE MASK IS NOT AN OFFENCE IN
NIGERIA.
There is an urgent need for Governors to respect rule of law at
all times. Governors must stop breaching fundamental human rights
of persons in their states. States are not nursery schools for
Governors to dish out orders and criminalise actions and inactions
of persons in their state. They should rather embrace quick legal
processes and procedures for making regulations in their states
even without disturbing/engaging their Houses of Assembly.
Regulations are not made by keeping mean faces on television and
ordering the wearing of nose mask and flogging of citizens. Other
Governors (including the Presidency) should learn from Lagos State
Government in the art of making relevant regulations. More
dangerous and greater than the Coronavirus (COVID-19) is
lawlessness.
We cannot afford to plunge NIGERIA into anarchy because of
COVID-19 and failure of executive arms of government to embrace
rule of law. Are they still Attorneys General in all states across
Nigeria? Why are failure to wear nose masks, wash hands or even buy
hand sanitizers touted as offences without making laws and
regulations to criminalise such? One understands the duty of
government to protect Nigeria and Nigerians, however such must be
done without disregarding the same laws that created Nigeria and
her governments.
In all parts of NIGERIA, Offences (Crimes) are ONLY created by
written LAWS made by the legislature or by written REGULATIONS and
BYE-LAWS made by the executive. Until an action or inaction is
criminalised by written law or regulation, it is not YET an
OFFENCE. So, television or social media broadcast by any Governor,
Commissioner, Security Head or even the President, his Ministers
and agents CANNOT criminalise an action or inaction. At best, such
television and social media threats/pleas are mere policy
guidelines/protocols and directions. The Supreme Court of Nigeria
has warned that policy guidelines of government are not laws. When
government is serious with a policy guideline and wants the force
of law and compliance, it will turn its policy guideline into a
Regulation. The Quarantine Act, the COVID-19 Regulations, Lagos
State Infectious Diseases (Emergency Prevention) Regulations 2020
and no known state regulation has criminalized non-wearing of nose
mask, social distancing or non-use of hand sanitizers.
However, the writer is not unaware of the efforts of Nigeria
Center for Disease Control (NCDC), including making of guidelines
and protocols for fighting COVID-19, among others. Unfortunately,
while executive orders, regulations, rules and bye-laws are laws
(subordinate legislation), Policy Guidelines like the NCDC
Guidelines and Protocols are not laws or Regulations. Such
guidelines and protocols have no force of law and as such no person
can be arrested or charged for any offence under them. Hence,
government is advised to collaborate with NCDC and ensure that some
of their guidelines and protocols are adopted and turned into
COVID-19 Regulations. Once selected NCDC guidelines and protocols
are turned into Regulations, government will have legal grounds to
charge offenders to court and punish them accordingly based on the
regulations. The NCDC on its own with the approval of the Minister
for Health can MAKE REGULATIONS and issue guidelines to protect
Nigerians from the impact of communicable diseases of public health
importance like COVID-19. Also the Minister for Health can give
directives to the board of the NCDC to make necessary
Regulations.
Note, Laws in Nigeria are made by the National Assembly for the
entire country while Houses of Assembly in the 36 states of Nigeria
make laws for their respective states. Federal Laws and State Laws
often delegate some law-making powers to executive government for
efficient implementation of laws. In exercise of delegated
law-making powers (quasi-legislative powers), the executive arms of
government (like, the President, Federal Ministers, Heads of
Federal Parastatals, Governors, State Commissioners and Heads of
State Parastatals) make Executive Orders, Regulations and Rules for
effective and efficient implementation of existing laws.
Consequently, written Executive Orders, Regulations or Rules
legally made by an executive government are binding Law.
As at today, there is no known law or regulation in any part of
Nigeria that has made the wearing of nose masks or use of hand
sanitizers compulsory or that has criminalized the non-wearing of
nose mask. Consequently, no human rights or any right can be
restricted over mask or sanitizers unless there is a contrary
justifiable written law or state of emergency. The fight against
Coronavirus (COVID-19) requires wearing of nose masks, use of hands
sanitizers as well as social distancing among other things. A good
government needs to make relevant regulations over such actions to
ensure there is compliance and legal grounds for enforcement and
sanction. Government must learn to be strategic and thoughtful.
Governors must listen to their Attorneys General especially on
issues of law and not to their instincts. Good Governors (like
Lagos State Governor) make regulations to control the affairs of
state and not just dish out illegal commands through social media
and television. By the way, lawyers that join in enforcement of
non-existing laws and crimes are warned to be professional at all
times.
The writer is not unaware of COVID-19 pandemic and governments
interventions to end it. The security and welfare of the good
people of Nigeria are the primary purpose of government. However
government must be lawful and law abiding in achieving such
purpose. It is advised that constitutional procedures and statutory
processes should be engaged at all times to avoid causing more
problems in attempting to solve one. We must conquer COVID-19
without violating fundamental human rights of Nigerians even where
such rights may be restricted. Stay at Home and Stay Healthy!
My authorities are:
1. Sections 1, 4(3), 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41,
42, 43, 44, 45, 305, of the Constitution of the Federal Republic of
Nigeria, 1999.
2. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act of 1926.
3. Sections 1, 3, 4, 24, 25, 27 and 28 of the Nigeria Center for
Disease Control and Prevention (Establishment) Act, 2018.
4. Sections 12, 17, 18 and 39 of the Interpretation Act, 1964.
5. Provisions of the COVID-19 Regulations 2020.
6. Regulations 1, 2, 3, 4, 5, 7 and 8 of the Lagos State Infectious
Diseases (Emergency Prevention) Regulations 2020
7. Sections 53 and 58 of the Lagos State Public Health Law, Cap Ch.
P16, Laws of Lagos State 2015.
8. Rules 30, 32, 56 and 57 of the Rules of Professional Conduct for
Legal Practitioners, 2007.
9. The Supreme Court judgment on “Offence Unknown To Law” in the
case of CHIEF OLABODE GEORGE v. FRN(2013) LPELR-21895(SC)
10. The Court of Appeal judgment on “Offence Unknown To Law” in the
case of OMATSEYE v. FRN (2017) LPELR-42719(CA)
11. The Supreme Court judgment on “Meaning of Regulation” in the
case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006)
LPELR-3161(SC)
12. The Court of Appeal judgment on “Meaning of Executive
Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL
SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
13. The Supreme Court judgment on “Policy Documents/Guidelines” in
the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER
ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
14. The Supreme Court judgment on “Policy Documents/Guidelines” in
the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG.
ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.
#SabiLaw
#DailyLawTips
#SabiBusinessLaw
#SabiElectionLaws
#SabiHumanRights
#SabiLawOnBeatFm
#SabiLawLectureSeries
#CriminalJusticeMonday
#SabiLawVideoChallenge
Speak with the writer, ask questions or make inquiries on this
topic or any other via info@LearnNigerianLaws.com or
onyekachi.umah@gmail.com or +2348037665878. To receive our free
Daily Law Tips, follow our Facebook Page:@LearnNigerianLaws,
Instagram:
@LearnNigerianLaws and Twitter: @LearnNigeriaLaw
Please share this publication for free till it gets to those
that need it most. Save a Nigerian today! NOTE: Sharing, modifying
or publishing this publication without giving credit to Onyekachi
Umah, Esq. and “LearnNigerianLaws.com” is a criminal breach of
copyright and will be prosecuted.
This publication is the writer’s view not a legal advice and
does not create any form of relationship. You may reach the writer
for more information.
Powered by www.LearnNigerianLaws.com {A Free Law Awareness
Program of Sabi Law Foundation, supported by the law firm of
Bezaleel Chambers International (BCI).}
*Daily Law Tips (Tip 557) by Onyekachi Umah, Esq., LLM.
ACIArb(UK)
*FAILURE TO WEAR NOSE MASK IS NOT AN OFFENCE IN
NIGERIA.
There is an urgent need for Governors to respect rule of law at
all times. Governors must stop breaching fundamental human rights
of persons in their states. States are not nursery schools for
Governors to dish out orders and criminalise actions and inactions
of persons in their state. They should rather embrace quick legal
processes and procedures for making regulations in their states
even without disturbing/engaging their Houses of Assembly.
Regulations are not made by keeping mean faces on television and
ordering the wearing of nose mask and flogging of citizens. Other
Governors (including the Presidency) should learn from Lagos State
Government in the art of making relevant regulations. More
dangerous and greater than the Coronavirus (COVID-19) is
lawlessness.
We cannot afford to plunge NIGERIA into anarchy because of
COVID-19 and failure of executive arms of government to embrace
rule of law. Are they still Attorneys General in all states across
Nigeria? Why are failure to wear nose masks, wash hands or even buy
hand sanitizers touted as offences without making laws and
regulations to criminalise such? One understands the duty of
government to protect Nigeria and Nigerians, however such must be
done without disregarding the same laws that created Nigeria and
her governments.
In all parts of NIGERIA, Offences (Crimes) are ONLY created by
written LAWS made by the legislature or by written REGULATIONS and
BYE-LAWS made by the executive. Until an action or inaction is
criminalised by written law or regulation, it is not YET an
OFFENCE. So, television or social media broadcast by any Governor,
Commissioner, Security Head or even the President, his Ministers
and agents CANNOT criminalise an action or inaction. At best, such
television and social media threats/pleas are mere policy
guidelines/protocols and directions. The Supreme Court of Nigeria
has warned that policy guidelines of government are not laws. When
government is serious with a policy guideline and wants the force
of law and compliance, it will turn its policy guideline into a
Regulation. The Quarantine Act, the COVID-19 Regulations, Lagos
State Infectious Diseases (Emergency Prevention) Regulations 2020
and no known state regulation has criminalized non-wearing of nose
mask, social distancing or non-use of hand sanitizers.
However, the writer is not unaware of the efforts of Nigeria
Center for Disease Control (NCDC), including making of guidelines
and protocols for fighting COVID-19, among others. Unfortunately,
while executive orders, regulations, rules and bye-laws are laws
(subordinate legislation), Policy Guidelines like the NCDC
Guidelines and Protocols are not laws or Regulations. Such
guidelines and protocols have no force of law and as such no person
can be arrested or charged for any offence under them. Hence,
government is advised to collaborate with NCDC and ensure that some
of their guidelines and protocols are adopted and turned into
COVID-19 Regulations. Once selected NCDC guidelines and protocols
are turned into Regulations, government will have legal grounds to
charge offenders to court and punish them accordingly based on the
regulations. The NCDC on its own with the approval of the Minister
for Health can MAKE REGULATIONS and issue guidelines to protect
Nigerians from the impact of communicable diseases of public health
importance like COVID-19. Also the Minister for Health can give
directives to the board of the NCDC to make necessary
Regulations.
Note, Laws in Nigeria are made by the National Assembly for the
entire country while Houses of Assembly in the 36 states of Nigeria
make laws for their respective states. Federal Laws and State Laws
often delegate some law-making powers to executive government for
efficient implementation of laws. In exercise of delegated
law-making powers (quasi-legislative powers), the executive arms of
government (like, the President, Federal Ministers, Heads of
Federal Parastatals, Governors, State Commissioners and Heads of
State Parastatals) make Executive Orders, Regulations and Rules for
effective and efficient implementation of existing laws.
Consequently, written Executive Orders, Regulations or Rules
legally made by an executive government are binding Law.
As at today, there is no known law or regulation in any part of
Nigeria that has made the wearing of nose masks or use of hand
sanitizers compulsory or that has criminalized the non-wearing of
nose mask. Consequently, no human rights or any right can be
restricted over mask or sanitizers unless there is a contrary
justifiable written law or state of emergency. The fight against
Coronavirus (COVID-19) requires wearing of nose masks, use of hands
sanitizers as well as social distancing among other things. A good
government needs to make relevant regulations over such actions to
ensure there is compliance and legal grounds for enforcement and
sanction. Government must learn to be strategic and thoughtful.
Governors must listen to their Attorneys General especially on
issues of law and not to their instincts. Good Governors (like
Lagos State Governor) make regulations to control the affairs of
state and not just dish out illegal commands through social media
and television. By the way, lawyers that join in enforcement of
non-existing laws and crimes are warned to be professional at all
times.
The writer is not unaware of COVID-19 pandemic and governments
interventions to end it. The security and welfare of the good
people of Nigeria are the primary purpose of government. However
government must be lawful and law abiding in achieving such
purpose. It is advised that constitutional procedures and statutory
processes should be engaged at all times to avoid causing more
problems in attempting to solve one. We must conquer COVID-19
without violating fundamental human rights of Nigerians even where
such rights may be restricted. Stay at Home and Stay Healthy!
My authorities are:
1. Sections 1, 4(3), 14, 20, 33, 34, 35, 36, 37, 38, 39, 40, 41,
42, 43, 44, 45, 305, of the Constitution of the Federal Republic of
Nigeria, 1999.
2. Sections 1, 2, 3, 4, 6 and 8 of the Quarantine Act of 1926.
3. Sections 1, 3, 4, 24, 25, 27 and 28 of the Nigeria Center for
Disease Control and Prevention (Establishment) Act, 2018.
4. Sections 12, 17, 18 and 39 of the Interpretation Act, 1964.
5. Provisions of the COVID-19 Regulations 2020.
6. Regulations 1, 2, 3, 4, 5, 7 and 8 of the Lagos State Infectious
Diseases (Emergency Prevention) Regulations 2020
7. Sections 53 and 58 of the Lagos State Public Health Law, Cap Ch.
P16, Laws of Lagos State 2015.
8. Rules 30, 32, 56 and 57 of the Rules of Professional Conduct for
Legal Practitioners, 2007.
9. The Supreme Court judgment on “Offence Unknown To Law” in the
case of CHIEF OLABODE GEORGE v. FRN(2013) LPELR-21895(SC)
10. The Court of Appeal judgment on “Offence Unknown To Law” in the
case of OMATSEYE v. FRN (2017) LPELR-42719(CA)
11. The Supreme Court judgment on “Meaning of Regulation” in the
case of AG LAGOS STATE v. EKO HOTELS LTD & ANOR (2006)
LPELR-3161(SC)
12. The Court of Appeal judgment on “Meaning of Executive
Order/Regulation” in the case of ELEPHANT GROUP PLC v. NATIONAL
SECURITY ADVISER & ANOR (2018) LPELR-45528(CA)
13. The Supreme Court judgment on “Policy Documents/Guidelines” in
the case of COMPTROLLER GENERAL OF CUSTOMS & ORS v. COMPTROLLER
ABDULLAHI B. GUSAU (2017) LPELR-42081(SC).
14. The Supreme Court judgment on “Policy Documents/Guidelines” in
the case of UNION BANK OF NIGERIA PLC & ANOR. v. IFEOLUWA NIG.
ENTERPRISES LTD (2007) 7 NWLR (Pt.1032) 71 at 84.
#SabiLaw
#DailyLawTips
#SabiBusinessLaw
#SabiElectionLaws
#SabiHumanRights
#SabiLawOnBeatFm
#SabiLawLectureSeries
#CriminalJusticeMonday
#SabiLawVideoChallenge
Speak with the writer, ask questions or make inquiries on this
topic or any other via info@LearnNigerianLaws.com or
onyekachi.umah@gmail.com or +2348037665878. To receive our free
Daily Law Tips, follow our Facebook Page:@LearnNigerianLaws,
Instagram:
@LearnNigerianLaws and Twitter: @LearnNigeriaLaw
Please share this publication for free till it gets to those
that need it most. Save a Nigerian today! NOTE: Sharing, modifying
or publishing this publication without giving credit to Onyekachi
Umah, Esq. and “LearnNigerianLaws.com” is a criminal breach of
copyright and will be prosecuted.
This publication is the writer’s view not a legal advice and
does not create any form of relationship. You may reach the writer
for more information.
Powered by www.LearnNigerianLaws.com {A Free Law Awareness
Program of Sabi Law Foundation, supported by the law firm of
Bezaleel Chambers International (BCI).}