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. Read more