By Inibehe Effiong and samuel ihensekhien esq.
The trial and conviction of actress Funke Akindele and her husband is legally flawed. The fact that they pleaded guilty does not foreclose a discussion on the case because the flaws.the Public Health Law Cap. P16 Vol. 9 Laws of Lagos State, 2015; and the Lagos State Infectious Disease (Emergency Prevention) Regulations 2020.I submit that Funke Akindele and her husband (the defendants) were convicted for a non-existent offence.
DEFENDANTS CHARGED FOR AN OFFENCE THAT IS UNKNOWN TO LAW:
The charge sheet against the defendants also state that the said social distancing directives contravened by the defendants were issued by the Governor in line with the regulations made by the Governor pursuant to the Public Health Law. In other words, the defendants were not charged under the Quarantine Act.They were charged under Section 58 of the Public Health Law of Lagos State. For clarity, Section 58 of the Public Health Law cited in the charge sheet provides as follows:“For any contravention of the provisions of this Law or any Regulation made under this Law for which no other penalty is provided, the offender commits an offence and is liable on conviction to a fine of One Hundred Thousand Naira (N100,000.00) or to any non-custodial sentence,,and if a corporate body, to a fine of Five Hundred Thousand Naira (N500,000.00).”The defendants were convicted for gathering with more than twenty persons. The material question is: is it an offence under the Public Health Law or Infectious Disease Regulations to do so?..There is no provision under the Public Health Law or Infectious Disease Regulations that makes gathering with more than twenty persons a criminal offence.The Infectious Disease Regulations purport to give the Governor the power to issue the social distancing directives.The legal defect in the directive on gathering is that it cannot be the basis for criminal liability. A subsidiary legislation like the Infectious Disease…(Emergency Prevention) Regulations 2020 derives its authority and validity from a substantive law (the principal legislation). The regulations cannot extend such authority.Since the Quarantine Act and the Public Health Law of Lagos State specifically limit offences to
contravention of regulations made by the governor, it is outright illegality to charge Funke Akindele and her husband for contravening a directive of the Governor (which is outside the regulations itself). See Din V. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147.Therefore, by the authority of Section 36 (12) of the Constitution, and the Supreme Court decision in Aoko V. Fagbemi & Ors. (1961) 1 All NLR 400, the conviction of Funke Akindele and her husband is unconstitutional.As I contended earlier, there is no provision in the Public Health Law of Lagos State or the Infectious Disease Regulations that makes a gathering of more than twenty persons or any gathering for that matter a criminal offence.Regulation 8(1)(a) of the Infectious Disease (Emergency Prevention) Regulations 2020 cited in the charge sheet against the defendants provides 8(1) “The Governor may –(a) restrict or prohibit the gathering of persons in the Local Area, such as conferences, meetings, festivals, private events, religious services, public visits, and such other events, save where the written approval of the Governor is obtained for “for such gathering.”The above provision does not codify any offence. It only empowers the governor to restrict or prohibit gathering. The Infectious Disease Regulations 2020 should have expressly and specifically prescribed that gathering is restricted and prohibited in Lagos State before it can be relied upon to convict a violator in line with Section 36 (12) of the Constitution.Since neither the Public Health Law of Lagos State nor the Infectious Disease Regulations has prescribed that gathering is an offence, the purported directive of Governor,,Sanwo-Olu remains an advisory.The Court of Appeal in the case of Faith Okafar V. Governor of Lagos State & Anor. (2016) LPELR-41066 (CA) made it abundantly clear that the directive or order of a governor is not a law & that violation of same cannot result in criminal liability.However, Section 8 of the Quarantine Act only empowers the governor to make such regulations where the President fails to do so.On 30th March, 2020, President Buhari issued the COVID-19 Regulations. In his regulations, the President made specific provisions restricting movement and imposing a lockdown in Lagos State. By the constitutional doctrine of covering the field, the regulations made by Governor Sanwo-Olu went into abeyance the moment the regulations made by President Buhari came into effect. Both cannot coexist.
THE GOVERNOR HAS NO POWER TO MAKE REGULATIONS UNDER THE PUBLIC HEALTH LAW.
It should be further noted that under Section 53 of the Lagos Public Health Law, the power to make regulations pursuant to that law is expressly vested in the Commissioner for Health; not in the governor.
PUNISHMENT IMPOSED EXCEEDS THE LAW:
Apart from the above legal flaws, the punishment imposed on the defendants by the trial court is clearly overreaching and illegal. See Section 58 of the Public Health Law of Lagos State under which Funke Akindele and her husband were convicted.Hence is safe to conclude that Funke Akindele and co were convicted illegally.