Covid-19 and the conflict of executive powers




The nation received on April 8, 2020, the arrest and  arraignment of two pilots of Caverton Helicopter by men of the Nigeria Police in Rivers state for allegedly contravening the Covid-19 Regulations 2020 of Rivers state. The pilots were arrested onboard in execution of regulations made by the state government in an effort to contain the spread of Coronavirus in the state. However, there exists a constitutional crisis in exercise of the executive powers by the federal and  the state governments of the federation.It is contented that the executive powers of the federation are jointly
exercised by both federal and state governments in a manner contemplated by the 1999 of Nigeria. Section 1 (1) of the affirms the power  thus: “this is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Thus, in (3), it provides that “if any law is inconsistent with the provisions of this , this shall prevail, and that other law shall, to the extent of its inconsistency, be void.”

Section 2 (2) of the states: “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.” Accordingly, section 3 provides that there shall be 36 states in Nigeria named therein.The powers of the federation examined.
 In Part II of Chapter One of the Constitution, the powers of the Federation have been divided amongst the three organs of the government of the
federation, namely, the legislature, the executive and the judiciary
governed by section 4, 5 and 6, respectively. While the legislature is empowered to make laws, the executive maintains and executes
the laws, the role of the judiciary is to check the excesses of the legislature and executive and also has power to interpretate the laws.

By virtue of section 5 (3) of the constitution, the executive power vested in the governor of the state under (2) of the section shall not be so exercised as to; impede or prejudice the exercise of the executive powers of the federation; endanger any asset or investment of the government of the federation in that state.What is the crux of the matter between  Rivers state government and Caverton Helicopter?The following briefly are the facts;
Mr. President of Nigeria had on  March 29, 2020, exercised powers conferred on him by section 2, 3 and 4 of the Quarantine Act, Q2 LF 2004 and declared coronavirus an infectious disease. Accordingly, Mr. President made regulations restricting movements to and from in two states of the federation, Lagos and Ogun and the Federal Capital Territory Abuja in an
effort to contain the spread of COVID-19. In paragraph 3 of the
Regulations, he suspended the operation and activities of the aviation and aircraft. He further stated that permission shall be granted on needs basis.
Similarly, the Rivers state made regulations in view of the above closing the state land, sea and air borders extending the regulations in paragraph 8 to the suspension of the activities and operation of aviation industry in the state.
On April 8, 2020, two Caverton pilots who conveyed 10 passengers working in oil and gas company in the state based on the
permission granted by the Ministry of Aviation. The pilots were arrested by the police in Rivers state in company of the state governor in the execution of Executive Order on COVID-19 in the
state. Their arrest was effected despite their proofs of license by the
federal government to come to the state. This is the crux of the matter.

A glance through the charge sheet in the Caverton Helicopter Pilots’ case
reveals they were charged with four-count; disobedience to the lawful order, intentionally disobeying lawful order issued by the governor of Rivers
state, conducts amounting to breach of peace by flying and discharging passengers; and intentionally disobeying lawful order of the governor of Rivers state on restrictions of movement and flight within the state as contained in paragraph 8 of the Executive Order RVSG-01 2020.
Does Rivers state governor have powers to make regulations under the
Quarantine Act?
The answer to the above question is simply “YES.” The governor of a state
can make regulations prescribing steps that should be taken to contain the spread of infectious disease such as COVID-19 in his state if the president omits to act accordingly. Section 8 of the Act provides that, “if and to the extent that any declaration under section 2 or 3 of this Act has not been made, and to the extent that regulations under section 4 of this
Act have not been made by the President, power to make any such regulations may be exercised in respect of a state, by the governor thereof as fully as such power may be exercised by the President, and subject to the same
conditions and limitations.”
The above power of the governor of the state is exercisable in effect from the provisions of section 5 (2) of the constitution with respect to the extent of such exercise of power by the governor of the state. Examining the provisions of section 5(2)(a-b) of the constitution without
critical thinking could mislead one to believe that the Quarantine Act not
being a law validly made by the House of Assembly of a state, the governor may not execute it legally. 
Perhaps, the curious questions flowing from the foregoing could be as provided below.
Does a state governor have powers to issue order with respect to
restrictions on the activities and operations of aviation and aircraft?
The answer to the above question is simple and it is one rooted in law. No
state under the Nigerian constitution has power to regulate the activities
and operation of the aviation industry. The constitution is clear in
section 4(3) which provides that “the powers of National Assembly to make laws for the peace, order and good government of the federation with
respect to any matter included in the Exclusive Legislative List shall,
save as otherwise provided in this constitution, be to the exclusion of the Houses of Assembly of States.”
By implication, item 3 of the Exclusive Legislative List contained powers
of the National Assembly to make laws with respect to “aviation, including aircraft, safety of aircraft and carriage of passengers and goods by air.” To that effect, paragraph 8 of the Rivers State COVID-19 Regulations Order is null and void being a subsidiary legislation directing closure of
international airport in Rivers state, Airforce Base in the state
preventing the operation of aircraft being item 3 of the Exclusive
Legislative List reserved for the federal government. To such extent, the regulation is inconsistent with the provisions of the constitution and
become null and void as such.
How can Rivers state government remedy the breach of the constitution? Nigeria as a federation according to section 2 of the Constitution “is one
indivisible and indissoluble sovereign State” in control of the federal
government though has several parts. Where power to make laws and the
execution of such laws is by the constitution vested in the federal
government, no state government has power to assist the federal government in executing such laws.
In this instance, Rivers state has done well in an effort to contain the
spread of COVID-19 in the state. However, in view of the constitutional
challenges on power to close air border of the state, what is urgently needed is collaboration with the federal government.
 In my humble opinion, the state should as a matter of law withdraw its
charges against the pilots of the Caverton Helicopter and collaborate with the federal government in devising means to contain the spread of COVID-19 in the state. I am of the opinion that it is the right of the federal government to decide whether to allow the operation of aircraft and
 passengers of aircraft to and from within any part of the federation
without the consent of any authority.
If Rivers state decides not to withdraw the charges against the pilots of Caverton Helicopter, the federal government may exercise its inherent constitutional power under section 232(1) of the constitution and ask the Supreme Court for interpretation of section 5(3) of the constitution.Otiwe, a graduate of law, Kogi state University, Anyingba, writes via [email protected]

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