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 I intend to highlight are constitutional and jurisdictional in nature. 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 offence. 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 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 the 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.

Also Read: Court sentences Funke Akindele and hubby to 14 days of community service.

An act or omission is only a crime if it is so prescribed in a written law. By virtue of 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 offence is defined and the penalty is prescribed in a written. It states as follows: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence 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 a 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 offence.

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 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 have 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.

COMPETING REGULATIONS AND DOCTRINE OF COVERING THE FIELD:

The Infectious Disease Regulations was made by Governor Sanwo-Olu pursuant 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 regulations made by Governor Sanwo-Olu went into abeyance the moment the regulations made by President Buhari came into effect. Both cannot coexist. The doctrine of covering the field was applied in the case of AG of Ogun State V. AG 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 Public Health Law, the power to make regulations pursuant to that law is expressly vested in the Commissioner for Health; not in the governor. This raises more serious legal questions on the validity of the Infectious Disease Regulations.

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. 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 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).”

Also Read: Funke Akindele and hubby to be charged to court.

The trial court sentenced Funke Akindele and her husband to 14 days community service each, to start from 9.00am 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 14 days community service cum public enlightenment, and the isolation imposed on Funke Akindele and her husband can be regarded as a non-custodial sentence. It is was wrong for the trial court to additionally impose a fine of N100, 000 on each of the defendants.

CONCLUSION:

The sum total of my submission is that the conviction of Mrs. Funke 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 fresh regulations pursuant 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 pursuant 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.