Much of the country’s public health laws relating to infectious diseases require an update, but many Nigerians have opposed the Control of Infectious Diseases Bill 2020 recently introduced in the House of Representatives, writes Legal Editor, JOHN AUSTIN UNACHUKWU.
The Control of Infectious Diseases Bill 2020 passed second reading in the lower legislative chamber in record time – less than two weeks after its introduction.
Its sponsors, Speaker of the House of Representatives, Femi Gbajabiamila, his colleagues Pascal Obi and Tanko Sununu, have maintained that it was conceived in Nigerians’ best interest.
The long title of the Bill is “A Bill for an act to repeal the Quarantine Act, Cap. Q2, Laws of the Federation of Nigeria, 2004 and enact the Control Of Infectious Diseases Bill, make provisions relating to quarantine and make regulations for preventing the introduction into and spread in Nigeria of Dangerous Infectious Diseases, And For Related Matters (Hb.836)”.
According to Gbajabiamila, the country’s infectious diseases and public health emergency frameworks require urgent reform. He noted, for instance, that the weaknesses of the present system resulted in the government’s inability to hold to proper account those whose refusal to adhere with Nigeria Centre for Disease Control (NCDC) guidelines led to the further spread of the coronavirus in the country.
The Speaker noted that since the introduction of the Bill two weeks ago, there had been a barrage of criticisms against it, with allegations of sinister motives.
“Our current framework for the prevention and management of infectious diseases in the country is obsolete and no longer fit for purpose.
“The current law severely constrains the ability of the Federal Government of Nigeria and the Nigeria Centre for Disease Control (NCDC) to take proactive action to prevent the entry into Nigeria of infectious diseases and the management of public health emergencies when they occur.
“Even now, the government remains vulnerable to claims that some directives already being implemented to manage the present crisis do not have the backing of the law and therefore cannot withstand judicial scrutiny,” Gbajabiamila stated.
A week after Gbajabiamila’s bill, the Senate began work on a similar bill.
A similar bill titled: ‘’National Health Emergency Bill’’ was sponsored by Senator Chukwuka Utazi (PDP, Enugu-North). He is the chairman of the Senate Committee on Primary Health and Communicable Disease.
The Bill which passed first reading on the floor of the upper legislative chamber, was immediately opposed by a former Deputy President of the Senate, Ike Ekweremadu (PDP, Enugu-West).
Opposition to the Bill
Some Nigerians including lawyers, Civil Society Organisations (CSOs), human rights organisations and religious groups, have opposed both Bills, particularly the one in the House of Reps.
According to them, it is a sinister attempt to turn Nigerians into guinea pigs for medical research and take away their fundamental human rights as contained in Chapter Four of the constitution, especially right to life.
Others, referencing international doomsday conspiracy theories somehow involving the novel coronavirus, American billionaire philanthropist Bill Gates, the New World Order and a secret ‘666’ microchip, have questioned the introduction of the Bill at this time, particularly the speed at which the sponsors pursued its passage without recourse to public hearings, consultation and scrutiny by relevant stakeholders.
They also noted, among others, that the bill seemed to mostly copied from the Singapore Infectious Disease Act, 1977, without proper editing to fit local circumstances.
Some of those opposing the bill include the Peoples Democratic Party (PDP), Christian Association of Nigeria (CAN) and a former Senator representing Kogi West Dino Melaye, who has filed a suit against Gbajabiamila and the government over the bill.
Melaye’s lawyer, Nkem Okoro, stated that the former Senator has filed an application for the enforcement of his fundamental rights by asking the Federal High Court, to declare the provisions of the Control of Infectious Diseases Bill, as being draconian, authoritarian, undemocratic, unlawful and unconstitutional as the said provisions are likely to breach his fundamental rights
CAN, through its General Secretary, Joseph Daramola, said: “The question in the hearts of many people is this: Why the rush when the vaccine is not available yet?”
CAN said the bill “was initiated to destroy the Civil and Human Rights of Nigerians; that it prevents Nigerians from having a say in their own affairs.
“Among this denial of the fundamental human rights are: right to life, personal liberty, freedom from inhuman treatment, privacy, right to acquire/own property, freedom of movement and religion.
Sixty five Civil Society Organisations (CSOs) also opposed it. They included: Amnesty International, EiE Nigeria, Human and Environmental Development Agenda (HEDA), ActionAid Nigeria International Press Centre, IPC, among others.
Falana, Sagay disagree
Senior Advocates of Nigeria (SANs), Dr. Olisa Agbakoba and Mr Femi Falana however looked at the controversy surrounding the bill, from different perspectives.
Agbakoba, a former President of the Nigerian Bar Association (NBA) said: “The bill has a variation in the Senate whose purpose is to broaden the Quarantine Act of 1926. A lot of suspicion about the new Act, including compulsory vaccination is complete rubbish. Vaccination in relation to infectious diseases is compulsory.
“There is no section of the human rights provision in Chapter Four of the constitution that is not elevated above public interest.
I dealt with infectious diseases in 1984 when a client of mine was compelled to take vaccination for heart disease and I told him that, if in the opinion of the doctor you are required to take it in the overall public interest, you must take it. An infected person doesn’t have a choice to say no, he must take it.”
But Falana described the proposed Infectious Diseases Bill as superfluous, illegal and unconstitutional.
He said efforts to replace the Quarantine Act was a waste of time, adding that the Nigeria Centre for Disease Control, NCDC, Act of 2018 has taken care of what the legislators are trying to achieve.
“It is pertinent to inform Nigerians that in November 2018, a law was enacted in this country – the Nigeria Centre for Disease Control (NCDC) Act, which has taken care of infectious diseases in the country.
“So, it is not correct, in fact, it is misleading on the part of the House of Representatives to say that it is amending the 1926 Quarantine Act because there is already a development between 1926 and now. You had the 2018 Act which has taken care of the entire provisions of the new bill.
“The new bill, as far as the law is concerned, is superfluous. Its provisions are largely illegal and unconstitutional.” Falana stated
Problematic sections of the bill
Mr Ogundu Kingsley Chinda, who represents Obio-Akpor Federal Constituency, of Rivers State in the House of Representatives, outlined several areas where the bill is problematic.
Chinda said: “While the short title is ‘Infectious Diseases Act 2020’, a closer look at the content of the Bill reveals that the title of the Bill is deceptive. Whereas it purports to regulate ‘infectious diseases’, it actually goes beyond infectious diseases and regulates diseases of any nature, depending on the discretion of the Minister – Section 5(1)(b) of the Bill.
“The short title of the Bill should actually be Control of Diseases Bill 2020 rather than ‘Control of Infectious Diseases Bill, 2020’ as contained in Section 81 of the Bill.”
“The power to administer the Bill is vested in the Director-General (DG) of Nigeria Centre for Disease Control (NCDC) under the directive of the Minister. Please note that the office of the DG was created by another Act, the Nigeria Centre for Diseases Control Act,/ 2018 with powers and functions bestowed on him under that law.”
According to him, the powers vested in these political appointees are humongous and bound to be abused. More so, they are accountable to their appointer and take instructions from him and not from the Nigerian people.
He continued: “The NCDC Act that created the office of the DG gave him powers and also gave some powers to the Board of NCDC. Some of the functions of the Board under the NCDC Act are given to the Director under this current Bill.
“The Bill as stated in the introductory paragraphs above, failed to take cognisance of our local circumstances, consequently, the Bill has some serious constitutional and statutory contradictions. Several sections that are the life wire of the Bill conflict with existing laws and the 1999 Constitution.
“The federal system of government in Nigeria was not considered in the Bill, thus there are no role(s) for other tiers of government- (states and local governments), particularly the states as a federating unit. This is more serious, recognising the fact that health is an item in the concurrent legislative list in the 1999 Constitution.
“The powers of governors to take steps and come up with executive orders in times of public health emergencies contained in the Quarantine Act sought to be repealed were jettisoned. Thus, state governors have no role and are merely at the mercy of the DG, NCDC and the Minister of Health. This is abnormal and would be counterproductive.”
According to him, all state governors are today relying on the Quarantine Act to come up with executive orders to manage the COVID-19 peculiar situations in their respective states.
“If this power is removed, it means that the DG, NCDC has to micro- manage all the states and local government areas in the country in times of health crises (as we have now). This will be most inefficient,” he added.
Like the CSOs noted, the lawmaker also observed that the Bill attacks the rights of citizens under Chapter 4 of the Constitution dealing with Fundamental Human Rights, and also the African Charter on Human and Peoples’ Right (Ratification and Enforcement) Act, Cap. A9 Laws of the Federation of Nigeria, 2004: the United Nations Declaration on Human Rights, 1948 and International Convention on Civil and Political Rights, 1976 which are ratified by Nigeria and are thereby local legislations.
The Bill also conflicts with the Environmental Health Officers (Registration ETC) Act 2002. The DG is empowered in Section 2 of the Bill to determine who a Health Officer is against the clear provision of sections 13(1) and 14 of the Environmental Health Officers Act which outlaws any practice or provision of health services in Nigeria without certification by the Council – Health Officers are professionals and cannot be picked discretionally by any individual.
Compulsory testing and other rights violations
One area of concern among Nigerians is the requirement of compulsory testing.
Chinda observed that Section 6 of the Bill provides for compulsory testing based on mere suspicion by the DG, NCDC. Failure to test at one’s own cost, attracts legal sanctions, including a conviction.
He said: “This provision can and would be abused by power drunk officers without an option of legal challenge to such abuses. There are people whose religion does not permit injections or blood test or transfusion. This could thus be a breach to the right to freedom of thought, conscience and religion in Section 38 of the 1999 Constitution.
“Section 7 of the Bill empowers the DG, NCDC to order a post-mortem test, based on suspicion. No exception was considered and it is entirely at the discretion of the DG. This could breach the right to freedom of thought, conscience and religion in Section 38, 1999 Constitution.”
He notes further that Section 8 of the Bill removes the fiduciary relationship (the duty of confidentiality) between patients and their personal physicians on mere suspicion. The Nigerian Health Act still protects this relationship and is therefore in conflict with this Bill.
The lawmaker adds: “This can only be reasonable after a test is carried out and the person is confirmed to be infected. A citizen can be subjected to inhuman treatment and denied his right to privacy by publishing his/her medical history without his/her consent and refusal is a crime.
“Section 12 of the Bill empowers the DG on mere suspicion to stop a wake and prohibit the burial of a deceased by his/her family. This again violates Sections 34 and 38 of the Constitution on the Citizens’ Right to Human Dignity and Right to Thought, Conscience and Religion. Burial rites are mostly cultural or religious-based. This would be reasonable if it is confirmed that the corpse is infected. Even at that, the infected corpse does not need to be present at the wake.
“Section13 empowers the DG on mere suspicion to detain a citizen as long as he wishes without an order of a competent Court of law and he, of course, cannot be sued even where his suspicion turns out afterwards to be false or wrong, as Section 70 protects the DG and his agents from personal liability.”
According to him, this runs fowl of the victim’s fundamental Right to Liberty (S.35) and movement (S.41) of the Constitution.
“Also, note that Section 35 (e), which provides an exception only contemplates those suffering from a disease not “suspected” as provided in the Bill. Thus, the Bill tends to surreptitiously amend Section 35 (e) of the Constitution through the back door.
What should the National Assembly do?
Last Tuesday, Gbajabiamila said the reps had taken note of the criticisms.
“The Control of Infectious Diseases Bill will be put forward to a public hearing where stakeholder contributions will be sought to make improvements to the Bill before it is reviewed and debated by the Committee of the whole.
“It is from the accumulation of these myriad views, suggestions and good faith critiques from within and outside the House that we will arrive at final legislation that meets the present and future needs of our country, and which we all can support in good conscience,” he said.
In the light of the lawmakers’ new stance, the 65 CSOs, in a statement, made several recommendations to the National Assembly, with respect to the bills.
They are: The House of Representatives should provide information on the committee responsible for the coordination of public hearing; Communicate a practical schedule for public engagement on the Bill; hold a virtual and physical public hearing: Multi-layered stakeholder consultations and intensify publicity on the Bill.
It added: “Considering the sensitivity of the Control of Infectious Diseases Bill, we cannot afford a rushed or haphazard process.
“It is important that the National Assembly prioritise and invest in building public trust and confidence to limit the spread of disinformation or misinformation on the Bill.
“The legislature remains the legitimate core of democracy and must therefore represent the voices of WE the people. The Control of Infectious Diseases Bill must be comprehensive, futuristic in nature, and in conformity with; the Constitution, Nigeria’s international human rights obligations, and democratic principles.
“Any legislative process that does not guarantee the active and free participation of the people fails in its purpose and will not be accepted.”