Learned friend @RayNkah,
I read reply your as published by the @thecableng. Like most lawyers that disagree me, you missed the real points.
I observed sadly, that you mischaracterized and misrepresented my views on Funke's conviction.
I will summarise the errors you committed.
I read reply your as published by the @thecableng. Like most lawyers that disagree me, you missed the real points.
I observed sadly, that you mischaracterized and misrepresented my views on Funke's conviction.
I will summarise the errors you committed.
First, your allusion to the "directive" of the governor is misplaced. I have challenged anyone to produce the directive. No one has done that. But even if it exist, the directive of the governor cannot be the basis for criminal liability - Faith Okafor V Governor of Lagos State.
Second, you avoided a vital question of whether a directive is a written law as defined in Section 36 (12) of the Constitution. The simple answer is that it is not. A written law is constitutionally defined as: an Act; a Law; a Regulation or an Instrument made pursuant to a Law.
Gov. Sanwo-Olu's directive is not an Act of the National Assembly; it is not a Law of the Lagos State House of Assembly; it is not a Regulation and is certainly not an Instrument made pursuant to a Law. So what is the basis for conviction based on the Social Distancing Directive?
You confused the Social Distancing Directive with the Infectious Disease Regulations. I agree that the Regulations gives the governor the power to issue directives. But such directive is only Advisory. Section 58 Public Health Law specifically limits offences to Regulations.
The Governor cannot create offences outside the regulations. Your reference to the Quarantine Act in relation to Funke's conviction is misplaced. Funke was not charged under the COVID-19 Regulations made by President Buhari neither was the Quarantine Act mentioned in the Charge.
The regulations issued by the President does not make a gathering of more than twenty persons or any gathering a crime. It only prohibits movement. Funke and her husband held a party in their house. There is no law that prohibits that. They were not charged for inviting guests.
Third, your argument that the doctrine of covering the field does not apply in this case is shaky and does not take cognizance of the fact that the power of governors to make regulations under Section 8 of the Quarantine Act is conditional; only when the President fails to do so.
President Buhari did not only make regulations on 30/3/2020, he made regulations specifically for Lagos, Ogun and Abuja. Having exercised his power, the regulations earlier made by Gov. Sanwo-Olu went into abeyance and cannot compete with the President's own. It is that simple.
Fourth, you conceded that under the Public Health Law of Lagos State, the power to make regulations is vested in the Commissioner for Health. But you argued strangely, that since the Commissioner is appointed by the Governor, the governor can make the regulations. That is funny.
It is correct as you opined that the Constitution vest the executive power of a state in the governor and gives the governor the power to delegate same to Commissioners. But you failed to recognise that the power to make regulations under the Public Health Law is statutory.
The Governor cannot repeal the provisions of a statute by fiat. Regulations are subsidiary legislations.
Fifth, I observed painfully, that you conveniently avoided an important aspect of my submissions on the application of the Regulations Approval Law of Lagos to this case.
Fifth, I observed painfully, that you conveniently avoided an important aspect of my submissions on the application of the Regulations Approval Law of Lagos to this case.
The Regulations Approval Law expressly requires all regulations in Lagos to be laid before and approved by the House of Assembly before it can take effect. The Infectious Disease Regulations has not met this mandatory requirements. This point alone makes your article flawed.
Sixth, your reply to my submission on the excessive punishment imposed by the court is non sequitur. I never said that the excessive punishment rendered the trial a nullity. You're the one that invented that line of argument. I pointed it out as one of the many flaws in the case.
Instead of conceding that the Magistrate erred when he imposed a fine & a non-custodial sentence contrary to Sec. 58 of the Public Health Law (which only allows for one of them), you went on a voyage by arguing that it can be remedied by an appellate court. Did I argue otherwise?
I am therefore constrained to say respectfully, that the arguments you proffered in your article are predicated on conjectures and do not derogate from my submissions. A defendant can only plead guilty to a crime. A conduct is only a crime if it so defined in a written law.
We cannot live in a country where citizens can be arrested and convicted for violating the words of a governor. We live in a constitutional democracy. In a constitutional democracy, only the Constitution is sovereign. Sanwo-Olu swore to uphold the same Constitution.
The law says that offences are to be created by regulations. Sanwo-Olu cannot use by regulations, give himself the power to create offences through directives. That will lead to anarchy. The Regulations Approval Law was validly enacted to check abuse by the executive.
Instead of relying on morality or expediency to support the unconstitutional conviction of a citizen for on conduct that no law has prohibited, it our duty as lawyers to defend the Constitution. Defending the rule of law is still the motto of the Nigerian Bar Association.
