Nigeria

Nigeria’s National Interest Cannot Be At The Peril Of The Wellbeing Of The People Of Rivers State

Lloyd F. Ukwu and Bruce DelValle

Governor Wike declared a lockdown in Rivers State as did other states. Yesterday one Calverton helicopter brought in 10 persons into the city Port Harcourt in direct disregard for the health of the people of Rivers State. The Governor ordered for the arrest of the ferried workers and the two pilots that flew them in. They have been charged to court and are currently held in custody, awaiting trial.

This morning the Minister of Aviation announced on television that he, the Minister, authorized the flight. He argued that because Aviation is exclusively under the purview of the federal government, the Governor has no power to stop them from breaching the lockdown order, talk less arrest them. He cited national security interest. Specifically he stated that due to the fall in oil price the federal government needed to keep the oil industry revenue flowing.

I find the Minister of Aviation’s argument nauseating but not surprising given how reckless the Nigerian government sees Rivers State, the region that sustains the economy of Nigeria.

The Minister needs to understand that for obvious reasons, the President of the Federal Republic of Nigeria has less inherent authority to respond to pandemics than governors. In order words, the Governor of a state and his people are closer to each other and are at the receiving end of the pandemics.

The Federal Republic of Nigeria’s constitutional powers arise as enumerated powers—it has only the powers granted it by the Constitution. The Constitution of the Federal Republic of Nigeria 1999, schedule 2, parts I and II enumerate the powers expressly reserved to the federal government. Although“Quarantine” is one of the Enumerated Powers, see Constitution of the Federal Republic of Nigeria 1999, schedule 2, part I, paragraph 54; “Quarantine” has been used only once in Nigeria’s history, never since independence, and arises from the 1926 Quarantine Act to authorize or require port health officers to take a host of measures to prevent the importation into and spread of infectious diseases within Nigeria.

“Quarantine” as referenced in the laws of Nigeria and the Constitution of the Federal Republic of Nigeria 1999, schedule 2, part I, paragraph 54 are inapplicable to the current dispute regarding the powers of H.E. Governor Wike to issue orders to protect the health and safety of the citizens of Rivers State. That power arises from what is known as the “Residual Powers List”, which though not expressly provided for in the Constitution, captures the residue, that is, all that is not specified in the Exclusive and Concurrent Lists. The Nigerian state governments have absolute authority to legislate on those issue. See AG Abia State v AG Federation (2006) 16 NWLR (Part 1005) 265 at 380-381, paras. D-C, per Ngwuta JSC.

Significantly, the Nigerian Supreme Court held that unlike State orders or laws involving matters of concurrent or exclusive jurisdiction where the State legislative or executive action cannot run counter to the federal action, the doctrine of covering the field does not apply to state action in residual matters. AGF v. AG Lagos, Suit No. SC 340/2010 [2013], 16 NWLR (Part 1380) 249.

The states, by contrast, possess a general police power—an inherent authority that is then limited by both the state and federal Constitution. A governor or state legislature can often act without a specific grant of power. The power to act is presumed, absent a specific limitation. That is the essence of a federal system.

The United States has a more well-defined and historically robust federal system than does Nigeria. However, Nigeria is still a federal Republic and the centralization of power is not unchecked. Just as it would horrify many in Aso Rock if it were determined that religious observations and customs -including Sharia Law, for instance were banned because the federal government has exclusive constitutional authority in that sphere, so should the federal government stand down in this Calverton Helicopter Incident. In 1824, the U.S. Supreme Court observed in Gibbons v. Ogden that sovereign state authority includes the authority to enact “quarantine laws” and “health laws of every description.”

It may be useful to address the question thusly: just as Nigeria’s president and the federal government in general are acting at the peak of their powers during times of war when national security is threatened, Nigeria’s governors are often at the peak of their power when public health is at stake.

Rivers State is “at War” with COVID-19. H.E. Chief Nyesom Wike is entrusted with the health and well-being of the citizens of Rivers State and he has the power to impose a lockdown and arrest or thwart anyone that threatens Rivers State during this health crisis – even if that threat is employed by or excused by the federal government. The COVID-19 virus does not know the difference, and neither must Chief Wike if he is to win this War against COVID-19 and the real threat of a pandemic that could kill hundreds of thousands of Rivers’ people.

Clearly, Governor Wike’s lockdown is not a regulation of aviation or the oil industry but an evenhandedly applied health and safety response to the pandemic, just as the lockdown’s prevention of political rallies or attendance at football matches are not regulations of free speech and association or sport. The incidental effects of a lockdown cannot invalidate its compelling and urgent legitimate objective. Otherwise, government would be helpless in fighting pandemics that threaten all. No constitution should be interpreted to make it a suicide pact.

The federal government and the Ministry of Aviation cannot want to improve oil revenue at the expense of the health and well-being of the citizens of Rivers State. The Minister has taken the joke too far. He wants to kill Rivers people simply because he needs oil revenue. The Minister should listen to himself again.

*Lloyd F. Ukwu, a lawyer writes from Port Harcourt

and

*Bruce Delvalle, a constitutional law expert writes from Washington DC, USA.