‘ Infectious Diseases Bill Must Conform To Rule Of Law, Human Rights Obligations’
IDEALLY,
the Control of Infectious Diseases Bill would have passed through legislative scrutiny in the House of Representatives without any hiccup.
The bill seeks to repeal the obsolete Quarantine Act of 1929 and make provisions relating to quarantine and regulations for preventing the introduction into and spread of dangerous infectious diseases in Nigeria, and for other related matters.
The bill, introduced when the House reconvened on Tuesday, April 28, 2020, as part of ongoing efforts to contain the spread of COVID- 19 pandemic was jointly sponsored by Speaker Femi Gbajabiamila; Chairman, House Committee on Health Institutions, Pascal Obi and Chairman, Health Committee on Services, Tanko Sununu.
The speedy manner the bill scaled through the first and second reading at plenary was at first considered as being in line with the desire of the House to ensure the wellbeing of the citizenry amid the COVID- 19 pandemic.
But trouble started when some people felt there was more to the proposed legislation, which was slated for the crucial third reading in the next legislative day, than meets the eye. Faceless conspiracy theorists circulated media reports that billions of naira must have exchanged hands to ensure the passage of the bill as part of the grand design to turn Nigerians willy- nilly into guinea pigs for an impending COVID- 19 vaccine bankrolled by American billionaire Bill Gates. The speculation came against the backdrop of claims by antagonists of the bill that it has so much similarity with that of Singapore, which conferred so much power on the Director General of Infectious Diseases, akin to that of a dictatorial ruler. It was said that the draft bill was 90 per cent plagiarised from Singapore’s Infectious Disease Act of 1977, which would threaten democratic rule in Nigeria by the time it becomes fully operational.
Gbajabiamila, who has since denied allegations of wrongdoing on the bill, insisted that the initiative was in the best interest of the citizenry.
Gates has also denied media reports that he offered a $ 10million incentive ( bribe) to the leadership and members of the House of Representatives to ensure the passage of the controversial bill.
The philanthropist, who was represented by the country Representative of his Foundation, Dr. Pauliu Basinga, said there was no interaction whatsoever between himself or his Foundation and the lower legislative chamber of the National Assembly.
“The Bill & Melinda Gates Foundation has recently been made aware of an allegation circulating in certain elements of the Nigerian media that the Foundation was involved in a payment purportedly made to the Nigeria House of Representatives. Any such allegations are entirely false and without merit.
“To be clear, the Foundation has not offered any financial incentives to any member of Nigeria’s legislative branch for the passage of legislation nor has it offered any grants to organisations in Nigeria in connection with the same. The Foundation adheres to strict ethical and legal guidelines across all areas of its operations,” Basinga said.
Last week, the House insisted that it would not shirk its responsibilities to consider the proposed legislation in spite of machinations by those opposed to its passage into law. Meanwhile, fresh facts have emerged that the controversial bill may have been put on hold in the Senate indefinitely.
The Senate version of the bill, National Health Emergency Bill, was sponsored by Senator Chukwuka Utazi ( PDP, Enugu State), who is the chairman of the Senate Committee on Primary Health and Communicable Disease.
The bill passed its first reading recently after which the Senate resolved to debate its general principles during the next plenary and table it for the Second Reading. This was never done. Instead, the upper legislative chamber muted the consideration of the bill and proceeded on a two- week holiday to celebrate Eid- El- Fitri. Lawmakers who volunteered information to The Guardian on the issue disclosed that advisories had been received from many prominent quarters to allow some critical issues arising from the introduction of the bill to be resolved before further work would be done on it.
A ranking member of the Senate explained the situation in these words: “As you know, the NCDC Bill first emerged from the House of Representatives. And rightly or wrongly, there was a kind of public outcry of some sorts. “Usually, there are many ways in which the National Assembly makes laws. One way is to allow the bill exhaust its processes in the House in which it was first introduced and then passed to the other House for concurrence.
“On the other hand, both chambers can decide to work separately on the bill and come up with separate versions, which would be harmonised later. The last option was what happened in this case.
“What I do know is that as important and urgent as the problem which the bill was intended to cure is, there are issues of public perception and we in the National Assembly, having been elected by the people, owe it a point of duty to be very careful. So, I think we should be commended for slowing down a little to gauge the mood of the public to our actions.”
President of the Senate, Ahmad Lawan, had in the face of antagonisms to the bill promised to allow a thorough debate on the bill before the Second Reading is passed.
The Senate had introduced its version of the bill, which it called “National Health Emergency Bill” at the peak of the intense criticisms that trailed the introduction and speedy consideration of the bill in the House of Representatives
Former Deputy President of the Senate, Ike Ekweremadu, immediately opposed the bill. Relying on Order 41 of the Senate Standing Rule, Ekweremadu noted that the bill was already generating controversies in the House of Representatives and insisted that as a senator, he has the privilege of going through the bill before it passes the second reading.
He said: “I rely on Order 41 of the Senate Standing Rule. As a senator, I am entitled to know the details of this bill. We want to have copies of the gazetted copy. There is controversy over the same bill in the House of Representatives.
“We don’t want to have the same issue here. We need to be guided to avoid any backlash. I need to read it and prepare ahead of time.” Intervening to save the bill from immediate death, Lawan assured that copies would be given to members. He added that the second reading would be taken the following week, while senators go through it.
“The copies are ready and everybody will get a copy. We are not taking the second reading immediately. That will be done next week. So, members will have the time to read the contents of the bill,” he added.
Contentious Provisions
There are many contentious issues in the versions of the bill introduced in both Senate and the House of Representatives. Below are the controversial provisions:
– The NCDC DG shall be responsible for the Act and shall appoint any public officer or employee of a prescribed institution, to be a Health Officer.
– The president may ( by an order) declare a public health emergency if he is satisfied that there is an outbreak or imminent outbreak of an infectious disease that could be fatal to humans or the country.
– The president may declare an area as a restricted zone. He may also restrict entry, stay, public meetings or other gatherings in that area.
– Such order will remain for 14 days and can be renewed by the president from time to time.
– The National Assembly can pass a resolution to annul the president’s order and it ( the order) will cease to have an effect.
– An authorised public officer or police officer may direct people at a public gathering within the restricted area to disperse. And anyone who fails to comply without reasonable excuse may be arrested without a warrant and may be removed from the place. – Medical practitioners, laboratory workers, anyone aware of a carrier of an infectious disease or one who dies from such disease, must inform the NCDC DG. Failure to do so, such person will be tried in court for knowing about a disease – until he/ she proves otherwise.
- Autopsy report/ disposal of corpses, animals etc.
– The DG may order an autopsy report when a person dies of an infectious disease or suspected to have died of the disease.
This will be done to determine the cause of death or investigate any outbreak or suspected outbreak as well as prevent possible spread.
– Healthcare professionals are required to provide the DG with information of their
patients for the purpose of investigating or preventing spread or possible outbreak of an infectious disease. Anyone who fails to comply shall be found guilty of an offence.
– The DG may prohibit the wake- keep over an infected ( or suspected) corpse. Or impose conditions fit for removal or disposal of the corpse.
– The DG may also order the destruction of any animal and the disposal of any food or water if he considers such animal, food or water to be a source for the transmission of an infectious disease.
- Failure to comply makes a person guilty. And a health or police officer may, without a warrant and necessary force, enter the premises and take the necessary course of action. – The DG may also order anyone affected ( or suspected) of an infectious disease to be detained and isolated in a hospital or other place for such period of time and subject to such conditions he may determine. Same applies for anyone who has recently recovered from or been treated for such disease.
And where it is a minor, a parent or guardian may be asked to accompany such person to the isolation centre.
– The minister may declare any premise( s) to be an isolation area and that declaration shall be effective until the expiration of such period or until it is revoked by the minister.
– No one shall enter or leave the area without the permission of the DG who can also restrict movement of persons and goods in the area.
– If the DG feels a building is overcrowded and may cause the risk of an infection to the occupants, the DG may direct the occupier to abate the overcrowding or to close the building or part.
Anyone who fails to comply is guilty of an offence. And a health or police officer may take necessary measures without warrant and with the force required.
– Any person who is aggrieved by the order, may within seven days from the date of the notice, appeal to the minister whose decision shall be final.
– Also, if the DG feels that a premise is at risk of infectious disease, he may order the closure of the premises for a period not exceeding 14 days or prohibit the sale or distribution of food or water in the premises.
The DG may also order that the place be disinfected.
This applies to trades or businesses that the DG feel could pose a threat.
- An enforcement officer may place a mark on or about a premises in which any case of infectious disease has occurred and may keep such mark affixed for such time as necessary.
Any person removing mark without the authority of an enforcement officer commits an offence and is liable on conviction to a fine of N100,000 or to a non- custodial sentence. - An enforcement officer may obtain an order of court to destroy any building in which a case of infectious disease has occurred, or of any article or thing, which may be considered necessary in the interest of the public health.
* Prevention of international spread
– The president can declare an area ‘ an infected area’ where he believes an infectious disease may be introduced into the country. He may also issue an order prohibiting entry into the country.
* Vaccination and other prophylaxis
– Every person leaving or arriving Nigeria must have undergone vaccination against all or any of the diseases as may be prescribed and produce valid international certificates of vaccination to a Health Officer.
– Notwithstanding, a Health Officer may require such person to undergo vaccination and may subject him to isolation as he thinks fit. He may also return any non- citizen ( who fails to comply) to their place of origin, if he thinks fit.
– No person shall import into Nigeria any vectors capable of transmitting a disease without first obtaining the written permission of the DG and offenders shall be liable on conviction to a fine not exceeding N5 million or imprisonment for a term not exceeding 12 months or to both.
– No corpse other than cremated ashes, shall be brought into or exported from Nigeria, unless accompanied by a medical certificate or other evidence showing the name of the deceased, the date and cause of death and the measures adopted to preserve the body.
– The DG may order all or any persons arriving in Nigeria to undergo any medical examination specified in the order. On vaccination, the Bill states that in an outbreak ( or suspected) of any infectious disease, the DG may order any person not protected or vaccinated against the disease to undergo vaccination.
– All vaccinations shall be carried out by a medical practitioner, nurse or any other suitably trained person.
– An exemption from vaccination may be granted where there is a valid medical reason.
Grounds For Opposition By CSOS
Although some Civil Society Organisations ( CSOS) in the country have also thrown their weights behind the current effort to provide a comprehensive legal and policy framework for the management of infectious diseases in the country, others expressed concern over the decision by the House to give the bill an accelerated passage without consultation and inputs from relevant stakeholders. They argued that the development runs contrary to the principles of effective and inclusive law making.
They pointed out that the passage of the bill could lead to threats to human rights and abuse of power as it vests overbearing discretionary powers on the Director General of the Nigeria Centre for Disease Control ( NCDC), while making no provision for reviewing and controlling the exercise of such powers.
The noted: “The Bill empowers the NCDC to restrict fundamental rights and freedoms at will, and abuse constitutionally established institutions and processes, without any form of accountability.
“For instance, Section 10 ( 3) gives the Director
General express powers to use force to enter any premises without warrant; Section 19 confers the Director General with powers to prohibit or restrict meetings, gatherings and public entertainments; Section 15( 3e) also gives powers to the director to authorise the destruction and disposal of any structure, goods, water supply, drainage etc.
“In addition, Section 47( 1) confers discretionary powers on the Director General to order any person to undergo vaccination or other prophylaxis.
“All these powers can be abused for political and economic reasons if not properly checked. Section 71 of the bill absolves the Director General, any health officer, any Port Health officer, any police officer or any authorised person of any liability when ‘ acting in good faith and with reasonable care.’ The use of ‘ good faith and reasonable care’ is ambiguous and subject to misuse, manipulation, and misinterpretation for personal gain.
“While the threat of infectious diseases may be apparent, measures deployed for their prevention must be within the ambits of the law and must protect citizens from willful abuse of rights.
“It is important to note that the spirit of Section 45 of the 1999 Constitution of Nigeria ( as amended) validating laws that may restrict the exercise of certain human rights requires that such laws must be reasonably justifiable in a democratic society and also, must be subjected to judicial review.
“This bill, in its proposed form, fails to meet this standard, as it is not reasonably justifiable in a democratic society.” They further alleged that there was ambiguity and lack of clarity, which violates key principles of legislative drafting mandating laws to be simple, clear and unambiguous, saying: “This leaves room for significant amount of discretion on the part of the implementing authorities and limits the rights of citizens and respective institutions to question decisions taken in the exercise of the powers provided in the bill.
“There is therefore the need to clearly define terms used, extent of powers granted, and penalties for breach.
For instance, the proposed bill makes an attempt to define ‘ surveillance’ in its interpretation section but fails to provide a clear definition on the reach and extent of the power to demand public health surveillance programme and regulating framework.
“Throughout, the bill is referred to as an “Act” implying that the proposed document is already an enacted legislation ( Act). In addition, the bill does not define who constitutes a health worker, which, as defined in the bill, is anyone appointed by the Director General.
“In addition, we have concerns with Clause 74( 1) and ( 2), which deals with the collection of fees, charges and moneys, and some payments to be made to the Consolidated Fund or the agency.
“This creates a discrepancy in the coordination and management of public funds. It also raises the question of why some payments are collected by Directors and the Director– General, but with different destinations.”
They also raised the alarm of the likelihood of worsening inter- agency conflicts and jurisdictional rivalries among government and security agencies in the country when the bill is passed into law.
“The Bill, under Section 55 and 57, confers the power of investigation and arrest on any health officer authorised in writing by the Director- General or a police officer.
“We fear these provisions will create jurisdictional disagreements between the Nigerian Police and the NCDC. Arrest and investigation are statutory functions of security agencies; therefore, foisting similar powers to the DirectorGeneral of the NCDC or a health worker amounts to duplication and poses threats to national security and human safety.”
They also identified lack of public scrutiny, stakeholder review and engagement as part of the drawbacks of the proposed legislation.
“A bill as sensitive and crucial as the Control of Infectious Diseases Bill must be subjected to public scrutiny on the contents of the bill, and to proper debates on the legality, constitutionality and other aspects of the bill.
“This includes providing citizens and relevant stakeholders with the opportunity to make inputs in the bill.
Considering the sensitivity of the bill, the National
Assembly must ensure careful consideration and aggrega
Civil Society Organisations ( CSOS) have thrown their weights behind the effort to provide a comprehensive legal and policy framework for the management of infectious diseases in the country. But they said the bill must have input from relevant stakeholders in accordance with the principles of effective and inclusive law making
tion of diverse voices.”
To this end, they demanded that as a matter of urgency, the House of Representatives should subject the bill to public scrutiny by embarking on stakeholder consultations and a public hearing to harness public inputs into the legislation. “The House should utilise the opportunity provided by the reviewed lockdown policy to consult with relevant stakeholders and the people; and review all provisions of the bill that foster inter- agency conflicts and abuse of power and undermine constitutionally guaranteed rights and are contrary to the rule of law and Nigeria’s international human rights obligations.
“It is important to note that while we understand the importance of a legislative framework that guarantee effective response to pandemic/ public health crises, we must do so within the rule of law and in conformity with the Constitution and Nigeria’s international human rights obligations,” they noted.