Constitutional or unconstitutional; the arrest, arraignments and remand of Caverton Helicopter Pilots?
Introduction:
The nation received on 8th April, 2020 the arrest and arraignment of the two Pilots belonging to Caverton Helicopter by the men of Nigerian 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 Pandemic 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 the state governments in a manner contemplated by the 1999 Constitution of the Federal Republic of Nigeria.
Brief overview of the 1999 Constitution of Federal Republic of Nigeria.
Supremacy
Section 1 subsection 1 of the Constitution affirmed the power of the 1999 Constitution of the Federal Republic of Nigeria in the following words; “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” Thus in subsection 3 of section 1, it provides that “if any law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
The extent of the Federation defined.
Section 2 subsection 2, of the Constitution states to the effect that “Nigeria shall be a Federation consisting of States and a Federal Capital Territory.” Accordingly, section 3 of the Constitution provides that there shall be thirty six 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 vis-a-vis the legislature, the executive and the judiciary governed by section 4, 5 and 6 of the Constitution respectively. While the legislature is empowered to make laws, the executive maintain and execute 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.However, the law making powers for the Federation is vested in the National Assembly comprising of the Senate and the House of Representatives. Te States Houses of Assembly make laws for parts of the Federation.
Exclusive Legislative Powers reviewed.
The Constitution in section 4 subsection (2) and (3) vests the National Assembly with law making powers for the Federation with respect to any matter included in Exclusive Legislative List set out in Part I of the second schedule to the Constitution and in exercising that power, it shall be to the exclusion of the Houses of Assembly of States.
Concurrent Legislative Powers Examined.
In section 4 subsection 4 paragraph (a) of the Constitution, it vests the National Assembly with power to make law with respect to any matter contained in the Concurrent Legislative List set out in the first column to part II of the second schedule to the Constitution.Accordingly, in section 4 subsection 7 paragraph (a), the States Houses of Assembly is vested with powers to make laws for the States with respect to matter contained in the Concurrent Legislative List set out in part II to the second schedule to the Constitution. However, by virtue of section 4 subsection 5, the States Houses of Assembly shall not make any law which is inconsistent with any valid law made by the National Assembly as such other law made by the States Houses of Assembly shall be void to the extent of the inconsistency.
Examing the Meaning and Nature of Executive Powers.
The Black’s Law Dictionary defines executive powers to mean the power to execute law or to carry them into effect. The implication of this definition is that executive power is in the enforcement of a validly made law.
By virtue of section 5 of the CFRN, in subsection 1 and in paragraphs (a) and (b), the executive power of the federation is vested in the President who may exercise it directly or through the functionaries of the federal government and the power shall extend to the execution and maintenance of the Constitution, all laws made by the National Assembly and to all matters with respect to which the National Assembly has, for the time being, power to make laws.
In subsection (2) of section 5, the executive power of the State is vested in the Governor of that State who may exercise directly or through the functionaries of the State government and the power shall extend to the execution and maintenance of the Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws.
Evaluating the relationship between the federal and State executive powers in exercises.
By virtue of section 5 subsection 3 of the Constitution, it provides that the executive power vested in the Governor of the State under subsection (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 29th March, 2020 exercised powers conferred on him by section 2, 3 and 4 of the Quarantine Act, Q2 LF 2004 and declared Coronavirus 19 (COVID-19) an infectious disease. Accordingly, Mr. President made regulations restricting movements to and fro 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 aircrafts. He further stated that permission shall be granted on needs basis.
Similarly, the Rivers State made a 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 8th of April, 2020, two Caverton Helicopter pilots who conveyed ten 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 men of Nigerian police in Rivers State command in company of the Rivers 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.
Looking at the Charge Sheet
A glance through the charge Sheet in the Caverton Helicopter Pilots’ case reveals they were charged on four count charges vis-a-vis the following;disobedience to the lawful orderintentionally disobeying lawful order issued by the Governor of Rivers Stateconducts 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 has 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. In section 8 of the Act, it 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 of the Constitution and section 5 subsection 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. On the contrary, I will reproduce section 5(2)(b) hereunder for clarity purpose. Thus;”Subject to the provisions of this Constitution, the executive powers of a State shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and all matters with respect to which the House of Assembly has for the time being power to make laws (underlined for emphasis).
From the foregoing, it therefore becomes obvious that “the execution and maintenance of this Constitution” by the State includes the execution of the Quarantine Act made pursuant to the provisions of the Constitution to which the State is empowered to execute under the Constitution and the Act.
So perhaps, the curious questions flowing from the foregoing could be as provided below.
Does a State Governor has powers to issue order with respect to restrictions on the activities and operations of Aviation and Aircrafts?
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 aircrafts, safety of aircrafts 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 aircrafts being item 3 of the Exclusive Legislative List reserved for the federal government. To such extent, the Regulations 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 aircrafts and passengers of aircraft to and from within any part of the Federation without the consent of any authority.
Conclusion and the Way ForwardAs noted from the foregoing, if Rivers State decides not to withdraw the charges levied against the Pilots of Caverton Helicopter and secure their release from the correctional center as remanded, the Federal government may exercise it’s inherent constitutional power under the provisions of section 232(1) of the Constitution and ask the Supreme Court for determination of the extent of the rights a State executive to issue order which in view of section 5(3) of the Constitution as such exercise of power by the State impedes or prejudice the exercise of the executive powers of the federation which extend to the execution of a valid law made by the National Assembly to the exclusion of the State House of Assembly on the item 3 set out in the Exclusive Legislative List contained in part I to the second schedule the Constitution. Also the default on the side of Rivers State government to allow agents of the Federal government to operate the aircrafts carryout the exploration of oil in Rivers State endangered the asset and investment of the Federal government in that State which is prohibited under Section 5(3)(b) of the Constitution.
Otiwe, a graduate of law from Kogi State University, Anyigba, writes via [email protected], 08064188686
