Adulterated Drugs and Consumable Products: Should Culprits Face Death Penalty?

For years, Nigeria has been plagued by the activities of greedy and unscrupulous persons who manufacture and distribute fake, adulterated and substandard drugs, drinks and food items. The consequences are stark: dialysis centres in hospitals across the country are overstretched, and preventable deaths continue to mount in large numbers. In response, the National Assembly has taken a significant step, by considering legislation that would impose the death penalty on those found culpable. Will the Bill scale through? Is capital punishment justified under the circumstances? Jonathan Gunu Taidi, SAN; Norrison
Quakers, SAN; George Oguntade, SAN and Ayoade Oluwasanmi examine these questions against the background of the law

Proposed Death Penalty for Counterfeit Drugs and Unsafe Food Products: A Constitutional and Legislative Appraisal

Jonathan Gunu Taidi, SAN

Introduction

The principal legislation currently governing this subject, is the Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act. The Act prohibits various activities involving counterfeit, adulterated, banned, fake, substandard and expired drugs, as well as unwholesome processed foods. Section 3 prescribes imprisonment for a term of not less than five years and not more than 15 years, a fine not exceeding ₦500,000 or both, for offences under the Act. This legislation operates alongside the NAFDAC Act, the Food, Drugs and Related Products (Registration, etc.) Act and other applicable provisions of the Penal Code and Criminal Code.

The proliferation and persistence of these criminal activities have prompted calls for more stringent punishment, including the death penalty.

 The dangers posed by fake and substandard medicines, cannot be overstated. They can result in failed treatment, organ damage, infant mortality and increased resistance to antibiotics. Members of the Senate have also linked the circulation of counterfeit medicines, to kidney failure and other serious health complications. The victims are often among the most vulnerable members of society, with little or no capacity to distinguish genuine products from dangerous imitations. The harm is frequently insidious, affecting numerous unsuspecting consumers, while those responsible knowingly exploit the market for profit.

NAFDAC has maintained that existing sanctions have proved inadequate, to deter a trade that poses grave risks to public health and human life. Proponents of capital punishment also invoke the principles of retribution and incapacitation, alongside the understandable public demand for a decisive response.

The urgency of the problem, is beyond dispute. The real question, however, is not whether a stronger response is necessary, but whether the death penalty is the appropriate and proportionate response.

Constitutionality of the Proposed Death Penalty

The starting point is Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which guarantees the right to life, but expressly recognises an exception in respect of the execution of a death sentence imposed by a court for a criminal offence of which the person has been found guilty. The Supreme Court has recognised the constitutional validity of the death penalty, within this framework.

 Accordingly, a properly enacted law prescribing capital punishment for a clearly defined criminal offence would not be unconstitutional, merely because the prescribed punishment is death.

The legislative competence of the National Assembly must, however, be considered in relation to the subject-matter of the proposed legislation.

Drugs and poisons fall within the Exclusive Legislative List, thereby giving the National Assembly the requisite legislative competence to regulate and legislate on the subject. Food, drinks and cosmetics present a more nuanced constitutional question. Federal legislative authority in these areas derives principally from its powers relating to regulation, importation and inter-State commerce, as well as the statutory mandate of NAFDAC. A constitutional argument could nevertheless, arise in respect of activities involving the production and sale of food products confined entirely within a State. To minimise the risk of such a challenge, the legislation should be carefully framed around products subject to Federal regulatory oversight, including those regulated by NAFDAC, and products involved in inter-State or international trade.

Point for Legislative Consideration

Precision in the definition of offences, is particularly important. Section 36(12) of the Constitution requires that an offence and its prescribed punishment, must be defined in a written law. Terms such as ‘fake’, ‘counterfeit’ and ‘adulterated’ must therefore, be clearly and objectively defined, especially where a conviction could result in the loss of life.

It may also be argued that, the death penalty is inconsistent with the prohibition of torture and inhuman or degrading treatment under Section 34(1)(a) of the Constitution and the African Charter on Human and Peoples’ Rights, particularly its protections of life and human dignity.

In my view, such arguments face considerable constitutional difficulty. Although the African Charter is domestically enforceable, it does not enjoy supremacy over the Constitution and cannot override the express qualification contained in Section 33(1). Nevertheless, its provisions remain relevant in interpreting the human rights safeguards, and procedural protections that must accompany any legislation of this nature.

Proportionality: A Critical Consideration

The death penalty is the most severe punishment the State can impose, and should therefore, be reserved, if at all, for the gravest forms of criminal culpability.

Consider three situations: a trader who dilutes a beverage to increase profit margins; an importer who brings in improperly labelled cosmetics; and a manufacturer who knowingly introduces a toxic substance into children’s medicine. Although each situation may involve a regulatory or criminal violation, the degree of culpability and the potential consequences, are materially different.

A broadly framed provision, such as the one reportedly contemplated in the Enugu draft legislation, covering the manufacture, importation, exportation and distribution of counterfeit products, could potentially subject persons with substantially different levels of culpability to the same punishment.

The existing criminal law already provides a framework, for dealing with the most egregious cases. A person who knowingly supplies poison disguised as medicine, resulting in the death of a consumer, may, depending on the available evidence and the applicable law, be prosecuted for murder or culpable homicide, offences which attract the death penalty upon conviction.

The more difficult issue is establishing the requisite knowledge, intention and causal connection, particularly where the harmful effects are distributed across numerous victims. If the National Assembly considers it necessary to create a distinct aggravated offence, its application should be tied to a proven death and evidence that the accused knew, or was reckless as to, the likelihood of that fatal outcome. It should not be triggered merely by the commercial act of manufacturing, importing or distributing the offending product.

Whether the Death Penalty is the Appropriate Solution

The available body of research does not establish that, the death penalty is a more effective deterrent than long-term imprisonment. Research on deterrence consistently suggests that the likelihood of detection, arrest and conviction has a greater influence on criminal behaviour, than the severity of the punishment alone.

The counterfeit products trade thrives in an environment characterised by weak detection mechanisms, porous borders, inadequate laboratory capacity, poorly regulated informal markets and corruption. Increasing the severity of punishment does not, in itself, address these underlying weaknesses. Indeed, the proposed Senate legislation also contemplates measures such as tracking technology and expanded enforcement powers, suggesting that effective regulation and detection are equally important components of the response.

There is also the possibility that excessively severe punishment, could undermine effective prosecution. Prosecutors, Judges and witnesses may exercise greater caution where conviction carries the ultimate penalty, while suspects facing execution may have stronger incentives to destroy evidence or obstruct investigations. A punishment that is rarely imposed or implemented, may ultimately have limited deterrent value.

 Furthermore, enforcement efforts often expose small-scale traders and retailers more readily, than the financiers and organised networks behind the counterfeit products trade. Capital prosecutions would also depend heavily on laboratory analysis, expert testimony and the integrity of the chain of custody of exhibits, all of which require considerable institutional and technical capacity. The consequences of a wrongful conviction in such circumstances, would be irreversible.

 The Enugu draft reportedly combines the proposed death penalty with specialised courts, a 90-day trial period and asset forfeiture. While expeditious trials are desirable, particularly in cases involving serious threats to public health, they must not compromise the constitutional right to a fair hearing.

Section 36(1) of the Constitution, guarantees a fair hearing within a reasonable time. However, imposing a rigid 90-day deadline on proceedings in which the accused person’s life is at stake could prejudice the defence, particularly where sufficient time is required to examine forensic evidence, challenge expert testimony and establish the reliability of scientific findings. Any specialised court established for this purpose, must also operate within the existing constitutional framework governing the administration of justice.

Similarly, a blanket prohibition of bail raises serious concerns, under the constitutional guarantees of personal liberty and the presumption of innocence. The preferable approach would be to retain judicial discretion, guided by clearly defined statutory considerations.

Asset forfeiture provisions, must equally be carefully framed. Forfeiture should be tied to a conviction or an appropriate court-supervised process, and limited to the proceeds and instrumentalities of the offence. A provision permitting indiscriminate or total forfeiture could raise legitimate constitutional concerns under Section 44 of the Constitution, which protects the right to acquire and own property.

 Any prosecutorial powers conferred on NAFDAC, must also be reconciled with the constitutional powers of the Attorney-General under Section 174. The Deputy President of the Senate has similarly drawn attention to the need for a clear legislative relationship between the proposed framework and the existing NAFDAC Act, in order to avoid duplication and institutional conflicts.

My Overall View

A consideration of the foregoing issues leads me to the conclusion that the Constitution does not, in principle, preclude the National Assembly from prescribing the death penalty for a properly defined offence involving counterfeit drugs or dangerous food products. The public health emergency underlying the proposal is also real, and demands a decisive legislative response.

My reservations, however, are substantial.

 First, the proposed punishment raises difficult questions of compatibility with evolving international and regional human rights standards. Second, a broadly framed capital offence risks imposing a punishment grossly disproportionate to the culpability of persons, who may have engaged in unlawful commercial activities without intending or knowingly causing death. Third, the available evidence doesn’t establish that the death penalty would deliver a significantly greater deterrent effect than a robust system of detection, prosecution and enforcement. Finally, the procedural measures associated with some versions of the proposal raise legitimate concerns about fair hearing, judicial discretion and the protection of constitutional rights.

Reasonable legislators may arrive at different conclusions on the appropriate penal response. Ultimately, the choice of punishment is a matter of legislative policy, subject to constitutional limitations. Whatever position the National Assembly adopts, however, the resulting legislation must contain precise definitions of offences, proportionate penalties and procedures that fully respect the guarantees of Section 36 of the Constitution.

Recommendations to the National Assembly

In considering the proposed legislation, I respectfully recommend the following:

Clearly define and distinguish the offences

The legislation should distinguish between counterfeit, fake, adulterated and substandard products, with penalties proportionate to the nature of the offence, the degree of culpability and the actual or potential harm.

Restrict any capital offence to the gravest cases

If the death penalty is retained, its application should be confined to cases in which death has resulted and the accused is proved to have known, or to have been reckless as to, the likelihood of the fatal consequence. The sentence should remain discretionary, with life imprisonment available as a severe alternative.

Protect innocent retailers and consumers

The legislation should recognise an appropriate due diligence defence, for persons who can demonstrate that they exercised reasonable care in sourcing and handling products. Strict liability or reverse burdens of proof, should not apply to offences carrying the death penalty.

Provide for corporate liability and carefully circumscribed forfeiture

The legislation should adequately address the liability of corporate entities, and their responsible officers. Asset forfeiture should be restricted to the proceeds and instrumentalities of the offence, and made subject to conviction or an appropriate judicial order.

 Safeguard the constitutional right to a fair hearing

Specialised judicial divisions and effective case-management mechanisms, may be introduced to facilitate expeditious trials. However, rigid trial deadlines that could compromise the accused person’s right to adequately prepare a defence, should be avoided. Decisions on bail, should remain within the discretion of the courts.

Ensure institutional and statutory coherence

The proposed legislation should be properly aligned with the NAFDAC Act and the mandate of the NDLEA, while ensuring that any prosecutorial powers conferred on regulatory agencies are consistent with Section 174 of the Constitution.

Undertake comprehensive stakeholder consultations and provide for periodic review

The National Assembly should conduct a public hearing to obtain the views of relevant stakeholders, including regulatory agencies, pharmaceutical manufacturers, medical practitioners, legal experts, consumer protection organisations and civil society groups. The legislation should also incorporate a review mechanism requiring periodic assessment of its effectiveness through data on investigations, prosecutions, convictions and its overall impact on the market.

Conclusion

A statutory provision prescribing the death penalty for counterfeiting and adulteration offences would arguably withstand constitutional scrutiny in Nigeria, provided it is properly framed and enacted. However, its compatibility with international and regional human rights standards remains open to serious debate, while the available evidence provides limited support for the proposition that capital punishment would achieve greater deterrence.

The more sustainable legislative response is a carefully calibrated system of penalties that reflects the seriousness of the offence and the culpability of the offender. If capital punishment is retained at all, its application should be restricted to cases involving the knowing or reckless commission of an offence that results in death.

Above all, the fight against counterfeit drugs and unsafe food products requires more than severe punishment. It demands stronger regulatory institutions, effective border controls, reliable forensic capacity, consistent enforcement and a criminal justice system capable of identifying and prosecuting those who finance and organise these dangerous activities.

The ultimate objective of the proposed legislation should not simply be to punish offenders more severely, but to protect lives, restore public confidence and dismantle the structures that sustain this dangerous trade.

 Jonathan Gunu Taidi, SAN, former General Secretary, NBA

Proposed Death Penalty for Production and Distribution of Fake, Adulterated and Counterfeit Drugs, Drinks and Food Items in Nigeria: A Critical Analysis

Norrison Quakers, SAN

Introduction

The safety of food, drugs and beverages consumed by citizens is fundamental to the survival, health and development of any nation. A society in which citizens cannot confidently purchase medicines, food or drinks without the fear of poisoning, organ damage or death is a society confronted with a serious public health and national security challenge.

The proliferation of counterfeit drugs, adulterated alcoholic and non-alcoholic beverages, substandard food products and other dangerous consumer goods in Nigeria has become a matter of considerable public concern, particularly considering the rising and alarming cases of kidney-related health challenges including cancer cases. The activities of unscrupulous manufacturers, importers, distributors and retailers have exposed millions of Nigerians to avoidable illnesses, permanent disabilities and, in some cases, death.

Against this background, calls have emerged for the National Assembly to introduce the death penalty as the ultimate punishment for persons who deliberately manufacture, distribute or sell fake and adulterated drugs, drinks and food products.

The proposal raises an important question of public policy and criminal justice: Is the death penalty an appropriate, necessary and effective response to the menace of counterfeit and adulterated consumer products, or would it constitute an excessive and potentially counterproductive punishment?

This question deserves serious examination, beyond public anger and political expediency. It must be considered from the perspectives of public health, constitutional law, criminal justice, deterrence, human rights and the practical realities of law enforcement in Nigeria.

The Merits of Imposing the Death Penalty 

There are compelling arguments in support of a severe punishment, for persons who deliberately manufacture and distribute dangerous counterfeit products.

Protection of human life and public health

The strongest argument in favour of the proposal, is the need to protect human life. A person who deliberately manufactures counterfeit medicines, adulterates alcoholic beverages or introduces poisonous substances into food products, is potentially exposing hundreds or thousands of unsuspecting consumers to serious injury or death.

Unlike many conventional crimes, the consequences of these activities may extend far beyond the immediate victim. A single production facility can distribute dangerous products across several States, affecting entire communities.

Fake medicines may result in treatment failure, organ damage, antimicrobial resistance and death. Adulterated drinks and contaminated food may cause acute poisoning, and other serious health complications.

It is therefore, arguable that individuals who knowingly engage in these activities for financial gain, despite being aware of their potentially fatal consequences, should face the severest possible criminal sanctions.

The argument is that, the law must demonstrate that commercial profit cannot be placed above human life.

Deterrence of prospective offenders

The second argument is that, the possibility of capital punishment may discourage individuals and organised criminal networks from engaging in the production and distribution of counterfeit products.

Where the existing penalties are perceived as insufficient, offenders may regard the business as a profitable venture, in which the financial benefits outweigh the risks of prosecution. The introduction of a severe penalty, may increase the perceived consequences of engaging in such criminal activities.

It may also send a strong message that the Nigerian Government will not tolerate the deliberate endangerment of citizens, through the production and distribution of dangerous consumer products.

The protection of innocent and vulnerable consumers

Consumers generally have no practical means of determining whether a medicine, bottle of drink or packaged food is genuine, merely by examining its appearance. Counterfeiters frequently imitate established brands, reproduce labels and packaging, manipulate expiry dates, and use sophisticated distribution networks to deceive unsuspecting members of the public.

Children, elderly persons, pregnant women and individuals suffering from serious illnesses, are particularly vulnerable.

The law must therefore, recognise that the deliberate production of dangerous consumer products constitutes a serious violation of the rights and welfare of the public.

Protection of legitimate businesses and the Nigerian economy

Counterfeiting does not only injure consumers; it also undermines legitimate businesses.

Manufacturers who invest in research, quality control, regulatory compliance, product development and proper distribution, are placed at a competitive disadvantage when counterfeiters flood the market with cheaper and inferior products. This practice damages established brands, discourages investment, reduces consumer confidence and threatens the survival of genuine manufacturing enterprises.

Severe penalties may therefore, serve as part of a broader strategy to protect legitimate businesses, encourage investment and strengthen confidence in Nigerian-made products.

Demonstration of governmental commitment

The introduction of stringent punishment would demonstrate the determination of the National Assembly and the Federal Government to confront a problem that has persisted, despite the existence of regulatory institutions and criminal laws. It would also communicate that the production and distribution of dangerous counterfeit products, should no longer be treated as ordinary commercial or regulatory misconduct.

Where offenders knowingly and systematically expose the public to potentially fatal products, the State has a legitimate responsibility to intervene decisively.

The demerits and dangers of imposing the death penalty

Notwithstanding the foregoing arguments, the introduction of capital punishment raises serious legal, constitutional, moral and practical concerns.

The death penalty is irreversible

Perhaps, the most compelling objection is the irreversible nature of capital punishment.

The Nigerian criminal justice system is not immune from investigative errors, unreliable witnesses, inadequate forensic facilities, corruption, mistaken identification and wrongful convictions.

In cases involving counterfeit drugs, food and beverages, scientific evidence will frequently be central to establishing whether a product is adulterated, contaminated, poisonous or otherwise unsafe. Questions may arise, concerning the source of the product, the person responsible for its manufacture, the knowledge of the accused, the chain of custody of samples and the scientific reliability of laboratory findings.

There may also be situations in which a distributor or retailer, unknowingly sells a counterfeit product supplied by another person. If such a person is wrongfully convicted and executed, no subsequent discovery of the truth can restore the person’s life.

A prison sentence, however severe, can at least be reviewed, commuted or reversed, where fresh evidence establishes a miscarriage of justice. Execution cannot.

The principle of proportionality of punishment

Criminal punishment must bear a reasonable relationship to the seriousness of the offence, the culpability of the offender, and the circumstances in which the offence was committed.

There is a fundamental distinction between:

A person who deliberately manufactures poisonous drinks, with the intention of causing harm. A manufacturer who knowingly adulterates food products, for financial gain. A distributor who knowingly supplies counterfeit medicines. A retailer who unknowingly, purchases and sells counterfeit products. A manufacturer who commits a regulatory breach, without an intention to deceive or endanger consumers. 

These persons cannot reasonably be treated, as having the same degree of criminal responsibility.

The imposition of a mandatory death sentence across these different categories of conduct, would offend the principle of proportionality.

The law should distinguish between deliberate and reckless conduct, negligence, regulatory violations and innocent involvement.

A punishment that fails to distinguish between the levels of culpability of offenders, risks becoming an instrument of injustice, rather than an instrument of justice.

The constitutional implications

Section 33(1) of the 1999 Constitution of the Federal Republic of Nigeria, guarantees the right to life but recognises an exception where life is taken pursuant to the sentence of a court in respect of a criminal offence for which the person has been found guilty.

Accordingly, the death penalty is not automatically unconstitutional in Nigeria.

The Supreme Court recognised the constitutional validity of capital punishment in Onuoha Kalu v. State (1998) 13 NWLR (Pt. 583) 531.

Nevertheless, the constitutional permissibility of capital punishment does not mean that every offence should attract it.

Any proposed legislation must also comply with section 36 of the Constitution, particularly the rights to fair hearing, presumption of innocence, adequate facilities for defence and the principle that no person may be convicted of an offence unless the offence and its punishment are prescribed by written law.

The introduction of capital punishment would therefore require particularly rigorous safeguards to prevent arbitrary convictions and executions.

The death penalty may not necessarily deter crime

One of the assumptions underlying the proposal is that the threat of execution will automatically discourage counterfeiting.

However, the relationship between the severity of punishment and the prevention of crime is not that straightforward.

A criminal enterprise driven by enormous financial returns, organised criminal networks, weak enforcement and corruption may not be sufficiently discouraged by the existence of the death penalty.

An offender who believes that the possibility of arrest is remote may continue the illegal business irrespective of the punishment prescribed by law.

The National Human Rights Commission has previously expressed the view that the death penalty, as a retributive measure, may not necessarily serve as a deterrent to crime. It has also highlighted the need for caution in its application, considering the challenges within the Nigerian criminal justice system.

The problem of ineffective enforcement

Nigeria already has laws prohibiting counterfeit drugs, and unwholesome processed food.

The Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act, Cap. C34, Laws of the Federation of Nigeria, 2004, and the National Agency for Food and Drug Administration and Control (NAFDAC).

The persistence of counterfeit products raises a more fundamental question: Is the problem primarily the inadequacy of the punishment prescribed by law, or the failure to effectively enforce existing legislation?

If offenders can operate illegal factories, procure counterfeit packaging materials, manipulate product registration numbers and distribute dangerous products through established commercial channels without being detected, increasing the punishment alone may not solve the problem.

A death penalty that is rarely enforced may have less practical impact, than a properly enforced law prescribing substantial imprisonment, financial penalties and asset forfeiture.

Potential abuse of the criminal justice system

Capital punishment carries a heightened risk where investigative and prosecutorial institutions are vulnerable to corruption, political interference or improper influence.

There is a danger that innocent distributors, employees, transporters or business competitors may be implicated in criminal proceedings arising from commercial disputes or regulatory disagreements.

The severity of the proposed punishment may also create opportunities for intimidation, extortion and manipulation of investigations.

This is not an argument for leniency, towards genuine offenders. Rather, it is an argument for ensuring that the criminal justice system is sufficiently reliable before the State is empowered to take a person’s life.

The possibility of driving the illegal trade underground

An excessively punitive approach, particularly where it is not accompanied by effective regulation and enforcement, may drive illegal activities further underground. This could make investigations more difficult, and encourage offenders to operate through more sophisticated and concealed distribution networks.

The better approach is to dismantle the entire criminal supply chain, identify the financiers and beneficial owners, trace the proceeds of crime, and prosecute those who control the operations.

The critical issue: Should the death penalty apply only where the offence results in death?

This is perhaps, the most important consideration that the National Assembly must address.

There is a significant difference between the deliberate manufacture of a dangerous product, and the manufacture of a product that actually causes death.

The law should not automatically equate the two.

For instance, where an individual knowingly manufactures and distributes poisonous alcoholic beverages which cause the death of several consumers, the gravity of the conduct is substantially different from a situation where counterfeit products are discovered before they are consumed.

Similarly, where a manufacturer deliberately introduces poisonous substances into food products, knowing that the products may cause serious injury or death, the offender’s conduct may justify a substantially more severe punishment than an ordinary regulatory violation.

I would therefore, suggest a graduated system of punishment based on the following considerations:

1. Ordinary regulatory violations: Substantial fines, suspension or withdrawal of licences and appropriate custodial sentences.

2. Deliberate counterfeiting without proven injury: Lengthy imprisonment, substantial fines, confiscation of proceeds and forfeiture of equipment and premises used for the illegal business.

3. Reckless or intentional adulteration causing serious bodily injury: Significantly enhanced imprisonment, compensation and asset forfeiture.

4. Deliberate adulteration or counterfeiting resulting in death: The severest available criminal punishment, with capital punishment considered only where the prosecution establishes the necessary elements of an existing or properly defined capital offence, or where a constitutionally valid new offence is created with appropriate safeguards.

This approach would ensure that the punishment reflects the seriousness of the conduct, and the actual degree of criminal responsibility.

What should the National Assembly prioritise instead?

In my view, the National Assembly should focus on a comprehensive legislative and enforcement framework, rather than making the death penalty the central feature of the proposed reform.

The following measures deserve serious consideration:

Strengthening NAFDAC’s enforcement capacity

NAFDAC should be adequately funded and equipped with modern laboratory facilities, product-tracking technology, forensic investigation equipment and trained enforcement personnel.

The Agency should have the capacity to detect counterfeit products at the point of manufacture, importation, distribution and sale.

Criminal prosecution of the entire supply chain

The law should not concentrate exclusively, on the person found manufacturing the counterfeit product. It should also target the financiers, importers, warehouse operators, distributors, suppliers of counterfeit packaging materials, and other persons knowingly facilitating the illegal business.

The objective should be to dismantle the criminal enterprise, rather than merely arresting its operatives.

Mandatory asset forfeiture

Where a person is convicted of deliberately manufacturing or distributing counterfeit products, the court should have the power to confiscate the proceeds of the criminal enterprise and property used in furtherance of the offence, subject to appropriate legal safeguards.

This is particularly important, because many of these criminal activities are financially motivated.

The confiscation of illegally acquired wealth may be a more effective economic deterrent, than punishment directed solely at the individual offender.

Victim compensation

The proposed legislation should provide effective mechanisms for compensating victims and the families of persons who die or suffer permanent disabilities, as a result of counterfeit or adulterated products.

It is not sufficient for the State to prosecute an offender, while leaving victims and their families to bear the financial and emotional consequences.

Compensation should be considered, alongside criminal punishment.

Protection of whistleblowers

Employees and insiders who expose illegal manufacturing facilities, distribution networks and regulatory violations, should be protected.

A confidential reporting system, supported by appropriate witness protection measures, would assist regulatory agencies in uncovering criminal operations.

Strengthening border and market surveillance

The Nigeria Customs Service, NAFDAC, the Standards Organisation of Nigeria, the Nigeria Police Force and the Federal Competition and Consumer Protection Commission, should develop a coordinated enforcement strategy.

The illegal importation and distribution of counterfeit medicines, drinks and food products, must be addressed through intelligence-led surveillance and effective border controls.

Expedited trials and effective prosecution

One of the major weaknesses of criminal justice administration, is the delay between arrest, prosecution and conviction.

The proposed legislation should establish effective mechanisms for speedy trials, without compromising the constitutional rights of accused persons. A criminal law that prescribes severe punishment, but cannot secure timely and successful prosecution, will have limited deterrent value.

The international human rights perspective

The death penalty remains legally permissible in Nigeria under Section 33(1) of the Constitution, subject to the conditions prescribed by law.

However, international human rights standards, increasingly encourage the restriction and eventual abolition of capital punishment.

Article 6 of the International Covenant on Civil and Political Rights recognises the right to life, and places restrictions on the circumstances in which countries retaining capital punishment may impose it. 

The United Nations Human Rights Committee has interpreted the concept of the most serious crimes restrictively, generally limiting it to crimes of extreme gravity involving intentional killing.

This raises an important question, about whether every form of counterfeit drug production, food adulteration or beverage counterfeiting, could properly be classified as an offence warranting capital punishment.

It would be difficult to justify treating every such offence as deserving of execution, particularly where there is no proven death or intention to kill.

The National Assembly must therefore, consider Nigeria’s international obligations, and the constitutional implications of any proposed amendment.

My Position: Tougher Punishment, but not necessarily the Death Penalty 

I strongly support the introduction of substantially tougher penalties for individuals and organisations deliberately engaged in the production and distribution of fake drugs, adulterated drinks and dangerous food products.

Indeed, the deliberate poisoning of consumers for financial gain, is an exceptionally grave form of criminal conduct.

However, I do not consider the automatic imposition of the death penalty on everyone convicted of counterfeiting or adulteration, to be the most appropriate legislative response.

My position is informed by three fundamental considerations.

First, the sanctity of human life must be protected, not only against private individuals who engage in criminal activities, but also against the possibility of wrongful or unjustified State execution.

Second, criminal punishment must be proportionate to the nature of the offence, the intention of the offender, the consequences of the conduct, and the degree of participation.

Third, the effectiveness of criminal legislation should be measured by its ability to prevent crime, identify offenders, secure convictions and protect society, rather than merely by the severity of the punishment it prescribes.

There is little value in prescribing the death penalty, where the institutions responsible for detecting and prosecuting offenders are incapable of effectively enforcing the law.

The National Assembly should therefore, concentrate on creating a legal framework that makes it virtually impossible for counterfeiters to operate profitably and with impunity.

Conclusion

The law must protect life, not merely threaten death

The fight against counterfeit drugs, adulterated beverages and unsafe food products is a fight for the survival, health and dignity of Nigerians.

No individual or business enterprise, should be permitted to turn the lives of innocent citizens into instruments of commercial exploitation.

Those who deliberately manufacture poisonous products, falsify medicines and distribute dangerous consumables for financial gain must face severe consequences.

Nevertheless, the wisdom of legislation is not determined by the harshness of its punishment, but by its fairness, effectiveness and capacity to achieve its intended objectives.

The death penalty may appeal to public sentiment, in the face of disturbing revelations about counterfeit products. But, public anger, however justified, should not become the sole foundation of criminal legislation.

The objective of criminal justice should be to prevent the loss of innocent lives, not merely to create additional opportunities for the State to take lives.

The National Assembly must therefore, strike a balance between the protection of public health, the deterrence of criminal conduct, the rights of accused persons and the administration of justice.

A properly designed law prescribing lengthy imprisonment, substantial fines, forfeiture of criminal proceeds, compensation for victims and effective prosecution may offer a more sustainable response, than an indiscriminate death penalty.

Ultimately, what Nigeria needs is not simply a law that threatens counterfeiters with death, but a system that ensures that counterfeiters are detected, arrested, prosecuted, convicted and deprived of the financial benefits of their criminal activities.

The greatest deterrent to crime is not necessarily the severity of punishment; it is the certainty that the law will catch up with the offender.

Recommendations to the National Assembly

1. The National Assembly should resist an indiscriminate death penalty provision, covering all forms of counterfeiting and adulteration.

2. The proposed legislation should distinguish between intentional adulteration, reckless conduct, negligence and innocent commercial involvement.

3. The law should prescribe particularly severe penalties for deliberate adulteration that causes death or serious bodily injury, while respecting the legal requirements for establishing a capital offence.

4. There should be mandatory forfeiture of proceeds and instruments of criminal activity upon conviction, subject to due process.

5. Corporate directors and beneficial owners who knowingly authorise or facilitate these activities, should be held personally accountable.

6. NAFDAC and other regulatory agencies should receive adequate funding, technological support and prosecutorial cooperation.

7. There should be a comprehensive product-tracking and consumer-reporting system.

8. The legislation should provide for compensation to victims and their families.

9. Specialised and expedited procedures should be introduced, for prosecuting serious counterfeit-product offences without compromising fair hearing.

10. The National Assembly should establish an effective monitoring mechanism, to assess the implementation and impact of the legislation.

Norrison Quakers, SAN, Constitutional Lawyer, Lagos

NASS Should Consider Life Imprisonment Instead of Death Penalty

George Oguntade, SAN

This proposed Bill by the National Assembly raises a profound question about the relationship between morality, criminal responsibility, the sanctity of human life and the limits of State punishment.

 A legal system is not necessarily more effective, because it prescribes death for more offences. Its effectiveness lies in its ability to detect crime, secure reliable evidence, prosecute offenders, obtain convictions and impose appropriate punishment.

The function of the law is to be uncompromising in punishing those who knowingly trade in human lives, but the State must not sacrifice the principles of proportionality, fairness and the sanctity of human life, in its determination to punish them.

Ultimately, morality should inform the law, but it should not become an excuse for abandoning the rule of law.

 The National Assembly should instead of the proposed Death Penalty Bill, consider a graduated punishment regime:

– Life imprisonment for exceptionally grave cases involving deliberate manufacture and distribution of poisonous products, subject to constitutional and international law.

– Long-term imprisonment for knowing and deliberate counterfeiting.

– Enhanced punishment where the offence results in death or serious bodily injury, with prosecution for homicide where the elements of that offence are established.

 – Mandatory forfeiture, following conviction and due process, of proceeds and assets acquired through the criminal enterprise.

 – Personal criminal liability for directors, promoters and financiers who knowingly participate in the criminal enterprise.

 – Victim compensation, including compensation to families of persons who die as a consequence of the offences.

– Specialised prosecution and expedited trials, with adequate forensic facilities and protection against interference.

George Oguntade, SAN, Lagos

Curbing Nigeria’s Counterfeiting N1.5 Trillion Industry: Is the Death Penalty the Solution?

Ayoade Oluwasanmi

According to quick Google search, Nigeria’s counterfeit product industry is worth N15 trillion per year, factoring in lost tax revenues, destruction of legitimate industry, and healthcare costs. According to an article by the Sicuro Group.

The figures came from a report published by the DAWN Commission, a technocratic institution set up by Governments of the Southwest States, for the sustainable development of the region. According to the article, one of the conclusions is that, “Southwest Nigeria is the epicentre of Africa’s largest counterfeit consumer goods economy”. The article also mentioned that based on the level of counterfeiting going on, Nigeria could legitimately meet all the pharmaceutical needs of West Africa. The size of the counterfeit industry is estimated to be 57.4% of Nigeria’s GDP.   

According to the DAWN Commission report quoted by the Sicuro Group article, 40% of general consumer goods in major markets are counterfeit or substandard.

These are huge numbers by any metric. N15 trillion cost to the economy. 57.4% of Nigeria’s GDP. 40% of consumer goods are counterfeit or substandard. Those are very scary numbers. Its almost as if there are no legitimate products being made in the country, and that counterfeiting is what powers the Nigerian economy. 

There are urgent solutions that the Nigerian government and other stakeholders need to come up with, to help sanitise the manufacturing industry. However, if reports are to be believed, the National Assembly is considering passing a law to impose the death penalty on product counterfeiters. 

According to a report in Sahara Reporters, sometime in October 2026, the Forum of Former Members of the Enugu State House of Assembly sent a legislative memorandum and draft bill — Counterfeit Products (Special Penal Provisions and Fast-Track Judiciary) Act, 2026 — to the President, and senior members of the National Assembly and security agencies. The Bill allegedly proposes capital punishment, non-bailable status, total asset forfeiture, and 90-day fast-track trials for manufacturing or distributing counterfeit drugs, falsified consumables, and hard drugs. Also in July of this year, according to an article in The Cable, the Senate passed for second reading, the Counterfeit Medical Products, Fake Drugs and Unwholesome Processed Foods (Prohibition and Control) Bill, 2026, which currently proposes a 15-year prison term, asset forfeiture, and victim compensation, rather than the death penalty. 

To put this in perspective, there are laws in certain States that impose the capital punishment for kidnapping, terrorism and other offences, but these heinous acts are still being carried out. Why? The people involved consider the monetary rewards from carrying out these heinous acts, greater than the risk involved. Even when they fully understand the risk, they convince themselves they can either beat the system by being smarter and one step ahead, or finding a way to corrupt the system.

Without mincing words, while I do believe that those who counterfeit or adulterate consumable goods or pharmaceuticals are despicable human beings who deserve lengthy prison sentences, I am not sure the death penalty is the cure-all they want to make it out to be. I am not a manufacturer and I do not claim to have all the answers, but I do have a few thoughts as to how Nigerian can tackle the issue of counterfeit products. 

Tackling Counterfeit Products 

The first thing is that, the Federal Government needs to fix the economy and the education system as a matter of urgency. While it is not my intention to try and humanise or condone illegal actions, it would be foolish to ignore the fact that people are making choices about whether to engage in illegal acts or not, based on their access to education and the opportunities open to them in the economy based on their education or lack of it. I understand that some will make the argument that there are those who have no education and have limited economic choices as a result of that, and do not make the choice of a life of crime, that taking to a life of crime is a choice these counterfeiters make. However, no one can deny that education opens up people’s horizons, and allows them to see opportunities or create opportunities. The Government also, as a matter of urgency, needs to create policies that will help grow the economy, so everyone can find their niche to grow.

When I consider the work of most if not all of the regulatory agencies in Nigeria, they are simply nothing more than revenue generating institutions who, as a by-product of generating revenue, do some regulatory stuff. Which is why these agencies charge exorbitant fees, for their regulatory duties. 

NAFDAC is the agency charged with the registration of drugs and products that are manufactured in Nigeria, or imported into the country. I have friends and family who are either pharmacists or into the pharmaceutical business, and I listen to their stories of frustration about how difficult it is to deal with NAFDAC and the time it takes to register a product or get samples tested in their laboratory. No one is asking if NAFDAC and its processes are still fit for purpose, and if the processes can be sped up without endangering lives as a result, or if there is equipment NAFDAC needs to ensure their work can be done faster or more smoothly. For instance, can most of the processes be digitalised and computerised, such that one can be sure when they’ll get a result on a test or response from NAFDAC? For instance, under the Buhari Administration, a regulation came into force that each agency was to set a time limit for certain administrative acts. The regulation further stated that if there was an administrative task that was supposed to have been completed within a certain time with a member of the public receiving a response, if after a certain period had passed and there was no response from the Government agency involved, then it would be deemed that the process had been completed and the response was favourable. This could be applied, where possible, to NAFDAC. Ensuring the registering of safe products and pharmaceuticals that are safe for Nigerians to take, is a matter of national importance. Also, no one is asking if there are NAFDAC officials colluding with unscrupulous manufacturers and importers because of financial inducements, to allow unsafe products be sold in our markets. I am not advocating for paranoia, but working on active intelligence. Which of course leads to my next point.

While people are clamouring for special courts to prosecute sex crimes, financial crimes and election related matters, if the product counterfeit problem is as huge as they say it is, it is an issue of national security. Any issue that affects our national security, needs to be taken seriously and urgently tackled. I am therefore suggesting that the Nigeria Police at the national and State level, need to be restructured to take an active role in dealing with the menace of counterfeiting. For instance, in the United States, the United States Secret Service (“USSS”) is charged with the investigation into the counterfeiting of the United States Dollars. The Federal Bureau of Investigation (“FBI”) gets involved when the counterfeiting cases intersect with other major Federal crimes, such as organised crime, large-scale fraud, or multi-jurisdictional cyber operations. The Police should be working hand in hand with NAFDAC, gathering and sharing evidence. 

Nigeria should have a database of known counterfeiters, their bases of operation, and whether they have been prosecuted and are in prison or not. There should be databases about the products that suffer from counterfeiting the most, and where these counterfeits are found. Are they found within a localised area indicating that maybe the counterfeit operations are near where the products end up being sold, or can they be found all over the country indicating that the counterfeiters have a large-scale operation? Based on my limited knowledge, a lot of these counterfeit products are found in our local markets like Oloosha Market and Ojuwoye Market in Mushin, and Apongbon Market and Idumota Market on Lagos Island. There is the likelihood that the counterfeit products are most likely, made somewhere in and around these markets. 

Incentives should be given to whistleblowers to say something if they see or know something suspicious, so the Police and NAFDAC can come and investigate. Also, some people know they are selling counterfeit products. If they are caught, they should be given plea deals, so the kingpins of these operations can be caught.

Also, if the numbers about the amounts of money being lost is true, manufacturers and importers of these products have a legitimate and growing problem. It means that the money they could have made from Nigerians buying their legitimate products, is going to counterfeiters instead. Therefore, manufacturers and importers of these products have an incentive to partner with the Government and NAFDAC, on ideas on how to curb the activities of counterfeiters and sensitise Nigerians on how to identify counterfeit products. 

Recently, a list allegedly created by NAFDAC of counterfeit products in Nigeria, was circulating on social media. I saw the list on WhatsApp. However. However, in a press release posted on their official Facebook page (https://web.facebook.com/NafdacNigeria/posts/nafdac-has-clarified-that-the-viral-list-of-products-circulating-on-social-media/1470127418634087/?_rdc=1&_rdr#),  NAFDAC has since come out to say the list did not emanate from them as NAFDAC doesn’t issue sweeping, brand-wide bans without formal laboratory sampling and official public alerts. 

There needs to be a better way for Government and NAFDAC, to issue alerts about counterfeit products. I am not sure as many people saw the disclaimer, as the fake list. This summer in Europe was one of the hottest on record. The Government, manufacturers, importers and other stakeholders, should come up with a robust system to alert consumers on counterfeit products – safety tips.

So, while setting up the death penalty as the punishment for those caught engaging in the act of counterfeiting products  is a first step (not necessarily a great one), there needs to be greater collaboration between Government at all levels, NAFDAC, the Police, manufacturers, importers, other stakeholders and the general public, in actively combating the evil of counterfeiting. The passage of an act to enact the death penalty for counterfeiters, cannot be end.

Ayoade Oluwasanmi, Lawyer; Author; Partner, Litigation Department of Gbenga Biobaku & Co.

Two Judges, One Party: Why the ADC Crisis Will be Decided by Precedent, Not Politics

Why allegations, investigations and forfeiture proceedings, should not be confused with criminal conviction.

Introduction

Two Federal High Court judges have given opposite judgements, on the leadership of the African Democratic Congress (ADC.) The conflict cannot be resolved by asking who was first. It will be resolved by three doctrines — stare decisis, per incuriam and obiter dicta. This is because, although on  5th November, 2026, Nigeria’s opposition was completely thrown into confusion by a single judgement, the  confusion itself was not really political, but doctrinal.

Facts 

Two Judges of the same court, gave two opposite answers on the same party leadership. To understand which judgement stands, you do not need to choose a faction, but rather, the above stated principles of law. 

Judgement 1 — Justice Musa Liman 

On 2nd, July 2026, in a suit instituted by Hon. Abejide, Liman J. struck out a challenge to the David Mark led leadership of the ADC.  He held that the dispute was an internal party affair, that the internal party remedies hadn’t been exhausted, and that Abejide lacked locus standi to institute the action. He however, positively declared the emergence of the Mark led leadership and directed INEC to recognise the Mark led National Working Committee. 

Judgement 2 — Justice Peter Lifu

On 5th November, 2026, in a fresh suit instituted by Nafiu Bala Gombe, Lifu J. held that the Mark-led caretaker committee was illegally constituted, because it violated the ADC constitution, the Electoral Act and the 1999 Constitution. He nullified all its actions since 27th July, 2026, including the primary that produced former Vice President, Alhaji Atiku Abubakar, GCON, as presidential candidate, and ordered INEC not to recognise them.

The ADC immediately argued that a court of coordinate jurisdiction, cannot nullify the judgement of another court of equal jurisdiction.

That argument sounds powerful, but, it is also incomplete.

1. Stare Decisis

The principle: Stand by what has been decided. A lower court must follow a higher court. A court of equal rank, need not follow another court of equal rank.

Stare decisis is vertical, not horizontal.

Lifu J. was therefore, not bound by Liman J. Liman’s decision was persuasive only. Lifu was entitled, as a matter of law, to disagree with it, if he believed it was wrong.

What comity required was respect, not obedience. Lifu should have considered Liman’s reasoning carefully, and explain why he was departing from it. He did so by distinguishing the cases: Liman struck out for want of jurisdiction; Lifu decided the substantive merits.

Application: Stare decisis does not save the ADC. The first judgement does not win because it was first. Only the Court of Appeal which is a higher court, can resolve the conflict between the two coordinate judgements.

2.  Per Incuriam

The principle: A decision given in ignorance of binding law, has no binding force.

Per incuriam means “through lack of care”. It applies when a Judge decides a case, without considering a statute or a decision of a higher court that was directly on point. Mere error is not enough. The court must have overlooked the binding authority altogether.

This is the real battleground.

How it applies – The ADC will not win by saying Lifu ignored Liman. The decision by Liman was not binding. It must show Lifu ignored a higher court for example, a binding authority on fair hearing, which requires that a person whose rights will be affected, like Atiku, must be heard before an order is made against him.

Conversely, Bala’s camp will argue Liman was per incuriam, for treating a clear breach of a party constitution as a mere internal affair.

Per incuriam therefore, asks a different question from stare decisis: not “who was first?” but “who ignored the Supreme Court or an existing statute/ Constitution?

3. Obiter Dicta

The principle: Only the reason necessary to decide a case binds. Everything else is obiter, said by the way, and is merely persuasive.

Every judgement contains a ratio decidendi (the binding reason) and obiter dicta (passing comments).

Application: This distinction cuts both ways.

If Liman’s ratio was “I have no jurisdiction, suit struck out,” then his further order that INEC should recognise Mark, may be obiter. A court with no jurisdiction, cannot make a positive order.

If Lifu’s ratio was “the Mark committee was illegally constituted”, then his further order nullifying Atiku who was not a party when the suit was filed in September 2025 and whose candidacy did not then exist may be obiter, or at least, a consequential overreach.

The Court of Appeal may therefore, uphold Lifu’s core ratio on the leadership, while setting aside his consequential orders on the candidates as obiter and a breach of fair hearing.

The De-registration case

In suit number FHC/ABJ/CS/2637/2026, filed by the National Forum of Former Legislators, orders were sought asking  that INEC deregister ADC, Accord, Action Alliance, Action Peoples Party, and Zenith Labour Party as political parties. 

 On 22 May, 2026, the Court of Appeal made an order staying further proceedings in that suit, pending an interlocutory appeal. Despite that, Justice Lifu went ahead and delivered judgement ordering INEC to deregister the five parties.

A three-member panel of the Court of Appeal led by Justice A.B. Mohammed held that Lifu proceeded even though his attention had been drawn to the stay order, and called it “a form of judicial impertinence” and “a brazen violation” of judicial hierarchy. The panel quoted the Supreme Court precedent that a Judge who acts in that manner “is unfit for the Bench, as it amounts to judicial rascality”.

The Court of Appeal then stayed execution of Lifu’s deregistration judgement.

Lifu’s Own Explanation 

Lifu did not deny the sequence, but gave a different reason. He held that no subsisting order of stay from the Court of Appeal had been served on his court before parties adopted their final written addresses and before the matter was fixed for judgement, and that the law does not recognise arrest of judgement. 

The Court of Appeal rejected that reasoning. Its position was that, once notified, he had to stop, including stopping judgement delivery.

On 6-7th November, 2026, Prof Chidi Odinkalu repeated the allegation in relation to the second set of ADC cases the David Mark leadership/Atiku candidacy judgements which are under discussion in this article, alleging Lifu again “disregarded an order of the Court of Appeal directing a stay of proceedings” in one of the matters. 

That second allegation has not yet been the subject of a fresh Court of Appeal ruling in the reports available, unlike the first one, in the deregistration case. 

In the deregistration case, the Court of Appeal has formally found that Lifu ignored its stay order. In the newer ADC leadership cases, the same charge has been made publicly, but it is still an allegation and as such, it is impossible to comment further. 

Conclusion

Married together, the three principles give a clear framework:

Stare decisis tells us Lifu was not bound by Liman.

Per incuriam tells us the appeal will turn on, whether either Judge ignored binding higher authority.

Obiter dicta tells us that, not every sentence in either judgement is law. The leadership question is the ratio. The nullification of Atiku may be obiter.

Until the Court of Appeal decides on these two conflicting cases, or on the allegations of an ignored stay of proceedings (if indeed confirmed), Nigeria will still have two valid, conflicting judgements of equal rank. Neither side can treat its preferred judgement as final, but a recourse to first principles will give us a fairer idea as to how the two cases will ultimately be resolved, other than through a farcical recourse to the National Judicial Council as is now being suggested by the Presidency.