A Nigerian lawyer has explained why Funke Akindele and JJC Skillz’s conviction for violating a lockdown order issueBreaking: Court sentences Funke Akindele, husband JJC skillsd by the Lagos state government, cannot stand in law.

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Recall Ejes Gist Nigeria reported earlier that the couple were handed a fine of N100,000 each and also sentenced to 14 days community service, three hours per day excluding Saturday and Sunday.

Constitutional Lawyer, Inibehe Effiong, who reacted to the development, pointed out the flaws in the law, which aided the conviction.

He wrote;

Why The Conviction Of Funke Akindele Cannot Stand In Law

INTRODUCTION:

The trial and conviction of actress Funke Akindele and her husband are legally flawed. The fact that they pleaded guilty does not foreclose a discussion on the case because the flaws that I intend to highlight are constitutional and jurisdictional. Issues of jurisdiction can be raised at any time.

I have read the following: The Charge Sheet filed by the office of the Attorney General of Lagos State against Funke and her husband, 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 offense. The charge sheet shows that the two defendants were arraigned on a one-count charge for gathering with more than twenty persons contrary “to the social distancing directives of Mr. Governor of Lagos State.”

DEFENDANTS CHARGED FOR AN OFFENCE THAT IS UNKNOWN TO LAW:

The charge sheet against the defendants also states that the said social distancing directive contradicted by the defendants was issued by the Governor in line with the regulations made by the Governor according 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 offense and is liable on conviction to a fine of One Hundred Thousand Naira (N100,000.00) or 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 offense 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 offense.

The Infectious Disease Regulations purport to give the Governor the power to issue the social distancing directive. The legal defect in the instruction on gathering is that it cannot be the basis for criminal liability. A subsidiary legislation like the Infectious Diseases (Emergency Prevention) Regulations 2020 derives its authority and validity from a substantive law (the principal legislation). The regulations cannot extend such influence.

Since the Quarantine Act and the Public Health Law of Lagos State specifically limit offenses to a 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 laws itself). See Din V. Attorney-General of the Federation (1988) 4 NWLR (Pt.87) 147.

An act or omission is only a crime if it is so prescribed in a written law. Under Section 36 (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person is guaranteed the fundamental right not to be convicted unless the offense is defined and the penalty is prescribed in a written law. It states as follows:

“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offense unless that offense is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of law.”

Let me reiterate that the Governor’s social distancing directive that restricts gathering in Lagos State which the defendants purportedly contravened is not an Act of the National Assembly, or a Law of the Lagos State House of Assembly, neither is it subsidiary legislation or an instrument under the provisions of the law.

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 offense.

Regulation 8(1)(a) of the Infectious Disease (Emergency Prevention) Regulations 2020 cited in the charge sheet against the defendants provides thus:

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 such gathering.”

The above provision does not codify any offense. It only empowers the governor to restrict or prohibit gathering. The Infectious Disease Regulations 2020 should have expressly and specifically prescribed that meeting is restricted and banned 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 have prescribed that gathering is an offense, 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, and that violation of the same cannot result in criminal liability.

COMPETING REGULATIONS AND DOCTRINE OF COVERING THE FIELD:

Governor Sanwo-Olu made the Infectious Disease Regulations according to Section 8 of the Quarantine Act Cap. Q2 LFN 2004 and the Public Health Law of Lagos State. 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 rules made by Governor Sanwo-Olu went into abeyance the moment the rules made by President Buhari came into effect. Both cannot coexist.

The doctrine of covering the field was applied in the case of Attorney General of Ogun State V. Attorney General of the Federation (1982) 1-2 S.C. (Reprint) 7. where the Supreme Court per Fatayi-Williams, JSC, declared that the Public Order Act 1979 repealed all existing State laws on public order.

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 State Public Health Law, the power to make regulations according to that law is expressly vested in the Commissioner for Health, not in the governor. This raises more legal severe questions on the validity of the Infectious Disease Regulations issued by the governor.

REGULATIONS REQUIRES THE APPROVAL OF THE HOUSE OF ASSEMBLY.

Section 1 (1) of the Regulations Approval Law Chapter R4 Laws of Lagos State 2015 unequivocally provides as follows:

“Notwithstanding any provision to the contrary in any Law in the State, no regulation shall affect unless laid before and approved by the House of Assembly.”

Section 3 of the Regulations Approval Law further mandate that “all regulations made according to the provisions of any enactment in the State shall be published in the Official Gazette after its approval by the House of Assembly.”

The inescapable consequence of the above condition stipulated in Section 1 (1) of the Regulations Approval Law is that the Infectious Disease (Emergency Prevention) Regulations 2020 issued by Governor Sanwo-Olu to tackle coronavirus pandemic has not taken effect since it is yet to be laid before and approved by the Lagos State House of Assembly.

Since the charge against the defendants was brought under a regulation that has not been approved by the House of Assembly as required by law, the entire cast – from the charge sheet to arraignment, conviction, and sentencing of Funke and her husband, is a nullity.

We can put something on nothing. This singular point is enough to nullify the conviction.

PUNISHMENT IMPOSED EXCEEDS THE LAW:

Apart from the above legal flaws, the punishment imposed on the defendants by the trial court is overreaching and illegal. Section 58 of the Public Health Law of Lagos State under which Funke Akindele and her husband were convicted provides for only two forms of punishment. It 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 offense and is liable on conviction to a fine of One Hundred Thousand Naira (N100,000.00) or any non-custodial sentence and if a corporate body, to a fine of Five Hundred Thousand Naira (N500,000.00).”

The trial court sentenced Funke Akindele and her husband to 14 days community service each, to start from 9.00 am to 12 noon each day during which they are to sensitize the public on the COVID-19 pandemic in ten major areas of the state. They are also to pay a fine of N100, 000 each after which they would observe the period for isolation.

The implication of the expression “OR” as used in Section 58 of the Public Health Law is that the court can either impose a fine or a non-custodial sentence; the trial court cannot impose both.

The 14 days community service cum public enlightenment and the self-isolation imposed on Funke Akindele and her husband can be regarded as a non-custodial sentence. It was wrong for the trial court to additionally impose a fine of One Hundred Thousand Naira (N100, 000.00) on each of the defendants.

CONCLUSION:

The total of my submissions is that the conviction of Mrs. Funke Akindele and her husband cannot stand in law. They have the right to appeal against the judgment of the Magistrate Court to the High Court. I believe that the appellate courts will set aside the conviction.

Two possible options are available to the Lagos State Government if the restriction of movement is to be enforced through prosecution of offenders:

It is either the State Commissioner for Health issues current regulations according to Public Health Law (this may be susceptible to the doctrine of covering the field) or the Attorney General of Lagos State invokes the COVID-19 Regulations made by President Buhari according to the Quarantine Act to punish subsequent violators.

Notwithstanding the above, the judgment of the Magistrate Court remains binding until it is set aside on appeal.

Nigerian lawyer argues why Funke Akindele and JJC Skillz
He also insisted that no law in the constitution can dictate what citizens should or should not do in the privacy of their homes. Effiong stated that Section 37 of the Constitution guarantees the right to privacy at home, and COVID-19 cannot take away this right.

He wrote in a rejoinder post;

Let’s assume for a second that Funke Akindele and her husband pleaded NOT GUILTY to the charge, I firmly believe that beyond the constitutional and jurisdictional defects that I articulated in my article, it would have been trying for the Lagos State Government to secure a conviction.

I have tried unsuccessfully to understand their offense.

No government in Nigeria can dictate what citizens should or should not do in the privacy of their homes. Section 37 of the Constitution guarantees the right to privacy at home. COVID-19 cannot take away this right.

Is the problem with her husband’s birthday party or the fact that the husband posted the video of the party on social media? Was she convicted of inviting people to the party? We should stop this mob mentality. Are we saying that families cannot host parties in their homes? That will be ridiculous.

The purpose of social distancing is for people to stay at home. The social distancing does not stop families from mingling while at home, except where a member of the family shows symptoms or had a travel history or came in contact with an infected person.

I believe there’re large families in Lagos and other states with more than twenty members that are presently living together. Are we saying that it is a crime for such households to hold family prayers, meetings, or parties within the confines of their houses during this period?

It would have been a different thing if Funke Akindele and her husband hosted the birthday party in a public place. I agree that the guests who attended the party may have violated the social distancing directive (that does not automatically mean that they’re guilty of a crime).

There’s no evidence that the guests were dragged to the party. Funke and her husband were not charged for inviting people to the party. They were also not charged for posting the video of the party online. They were charged for gathering in their home, which is ridiculous.

Did the Lagos State Government expect Funke and her husband to gather in the bush? If it is a crime for couples to hold parties in their homes during this pandemic, then the government can as well arrest couples that have sex during this pandemic. After all, COVID-19 is sexually transmitted.

Public figures are not above the law. But the code should also not be applied differently to them. I cannot, in all honesty, support the treated meted on Funke Akindele and her husband. In this same Lagos, movement though restricted is still feasible.

The government is not sincere.

 

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