Issues in CIDB 2020 The Supersonic CIDB

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Femi Gbajabiamila

Thankfully, the Speaker of the House of Representatives, Hon. Femi Gbajabiamila, decided to slow down the ‘supersonic’ pace of the passing of the Control of Infectious Diseases Bill 2020 (CIDB) (sponsored by him (the Speaker), Hon. Pascal Obi and Hon. Tanko Sununu). The CIDB may well have qualified to be in the Guinness Book of Records, for being the fastest Bill to be passed in Nigeria if it wasn’t halted in its tracks, having scaled through the first and second readings on the very day that it was introduced, on the floor of the House! Following the public outcry against the CIDB, especially by civil society groups, Hon. Gbajabiamila announced that the House will hold a two-day Public Hearing in the near future, in order to enlighten the public and consider comments on the Bill.

Questions
Firstly, I cannot but question the extremely wide powers donated to the Director-General of the Nigerian Centre for Disease Control (DG NCDC or DG), who is already responsible for the administration of the NCDC Act 2018, and will also be responsible for administering the CIDB (Section 1, CIDB); or the reasoning behind some of the draconian and sometimes, unconstitutional provisions contained in the CIDB.

I would imagine that in drafting a new law, aside from establishing the objectives which the law sets out to achieve, some of the ground rules would include scrutiny of all extant laws in that regard, and of course, a perusal of the grundnorm, the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution), to ensure that the provisions of the proposed law are in consonance with the Constitution, and not rendered null and void because of their inconsistency (Section 1(3) of the Constitution).

It is also pertinent to note that, the Senate also has its own CIDB, that is, the National Health Emergency Bill 2020, sponsored by Senator Utazi, which has already passed the first reading on the floor of the Upper Chamber. Oftentimes, I wonder how anyone can seriously maintain that Nigeria is presently under a democratic dispensation, when what we really have is a bunch of undemocratic democrats in all levels of Government. How can a Bill pass any reading whatsoever in the Senate, without its contents being made known to all the members for consideration? At least, this was the allegation made by Senator Ike Ekweremadu, who demanded that copies of the Bill be made available to him and other Senators, before it can be considered! How ironical!

NCDC Act v CIDB
Sections 1-4 of the NCDC Act set out its objectives, administration and functions; and while the main objective of the CIDB is, inter alia, to: “make provisions for preventing the introduction into and spread in Nigeria of dangerous infectious diseases and for other related matters”, the objectives of the NCDC Act are much more extensive than those of the CIDB. However, the CIDB, unlike the NCDC Act, attempts to set out the actual practical application of some of the objectives of both laws, even though some of the processes which the CIDB seeks to adopt in so doing, are obviously flawed and need to be reworked, while others may need to be jettisoned completely. We can safely say that, while the NCDC Act is a ‘what to do’ law, the CIDB seeks to be more of a ‘how to do it’ law.

Some Grey Areas
Due to space constraints, I can only consider a few areas of the CIDB which caught my attention glancing through (not all). Section 5(2)(a), (b) and (3) of the CIDB gives the DG NCDC the power to sweepingly make ‘any person’ – not just a person suspected to have an infectious or communicable disease, to give samples and be subjected to a medical test, and makes noncompliance to this and practically everything else in the law, offences punishable with various fines, terms of imprisonment or both. No wonder this licence to test indiscriminately reminds me of Nazi Germany, the concentration camps and their experiments. In law we have reasonable cause, reasonable suspicion, reasonable man’s test and the like. You can’t just drag everybody to IDH Yaba or any other testing centre, if there’s no reason or probable cause to do so, where they can be exposed to Covid-19 for example, if they didn’t have it in the first place. I believe the power given to the DG here, is too wide and may be a breach of some fundamental rights guaranteed by the Constitution. In any event, every individual reserves the right to refuse treatment, even if its life saving.

Section 8(1)(a) of the CIDB empowering the DG NCDC to ask a healthcare professional to obtain any information which the DG considers necessary from a patient, is too wide. Non-disclosure by the healthcare professional or the patient, is also an offence. What if the patient has HIV or has epilepsy or is a hermaphrodite, and prefers to keep his/her status or condition a secret? Is it not a breach of Section 37 of the Constitution (right to privacy), for the DG to have the power to insist that any type of information which he/she deems necessary in his/her opinion must be provided, because the provision makes it at the DG’s discretion? Is it not hypocritical that, while in the same administration, despite the Freedom of Information Act, Nigerians are oblivious as to the ailments which President Buhari and other public officials suffer from, another law is being promulgated mandating full disclosure of everybody’s medical history? Additionally, we all know how careless people can be with such records and information which will travel from the healthcare professional all the way to the DG, and how personal information can be leaked by public officials, especially with some financial inducement.

However, Section 71 of the CIDB absolves the DG and all medical personnel of any liability, if they ‘mess up’, or breach the confidence of a patient, as long as their actions were in good faith and in lawful execution of the CIDB. So, if there’s negligence in the treatment of patients which may result in their unnecessary death, those responsible may not be held accountable, nor will they be held responsible if the health status of a patient which the patient had elected to keep secret, is somehow leaked, and becomes public knowledge.
The power donated to the Minister of Health in Section 15(1) of the CIDB to inter alia, declare any premises to be an isolation area, is equivocal. Does that mean that, the Minister can declare anybody’s house to be an isolation area? This would again, be a violation of Section 37 of the Constitution.
Section 15(3)(f) provides that the Minister can “prohibit, restrict, require or authorise the carrying out of such other act as may be prescribed” – this provision qualifies as the height of vagueness, and ambiguity. This provision gives the Minister the leeway, to do almost anything.

Section 16(1) of the CIDB empowers the DG to instruct the owner of a building that is overcrowded, to abate the overcrowding or close the building or a part of it within a specified time, without any mention of the provision of alternative accommodation for those affected by the evacuation. Majority of Nigerians are poor and live in overcrowded ‘face-me-I-face-you’ type accommodation, where several persons share a room. Where will they be expected to go, if they are evacuated from their homes? At least 70% of Nigerians may be adversely affected by this provision, which has failed to take into consideration the sad reality of the circumstances of our people – that this is the type of inadequate overcrowded accommodation, which majority of Nigerians can afford to live in. Section 4(2) of the Constitution empowers the Legislature to make laws for the peace, order and good government of the Federation, and not to disturb the peace of majority of Nigerians who are less privileged, and inflict further hardship on them, by rendering them homeless.

While the welfare of the people is the primary purpose of government (Section 14(2)(b) of the Constitution), and it can be argued that trying to protect the populace from a deadly virus falls within the purview of this constitutional mandate, Section 17(2) of the same Constitution provides that governmental actions shall be humane, and for sure, rendering people homeless indefinitely during a public health crisis is not only inhumane, but counter-productive.

Section 54 of the CIDB, in contravention of the Administration of Criminal Justice Act, gives Health Officers the power to search a premises without a search warrant, and to use such force as is necessary in so doing. I can imagine our public officials having a field day with this provision, and seizing it as another opportunity to harass citizens, maltreat them and extort money from them – in short, it will most certainly be abused.

Also questionable, is the power donated to the Police to arrest those suspected to be infected with a communicable disease, without an arrest warrant. Aside from the fact that this will most certainly be abused by the Police, the provision is not explicit about who will be doing the suspecting as to a person’s medical status. Is it the Police, who are not medical experts trained to determine whether an individual is sick or not? We all know that, for instance, the commonly used determinant for Covid-19 at first glance, is the individual’s temperature; but, a high temperature does not necessarily translate into Covid-19 – it could be as a result of a fever, malaria or some other non-communicable infection. Will people then be arrested, because their temperatures are higher than normal? This type of citizen’s arrest to be effected by the Police in such cases of a public health emergency, must be restricted possibly to those who have tested positive for a communicable disease and are in hiding or known to be spreading such disease, or a disease, infection of which can be ascertained by the naked eye like smallpox, or those who may have escaped from treatment centres.

Finally, Section 24 of CIDB provides that an Enforcement Officer can obtain a court order, to destroy any building which a case of infectious disease has occurred. It is however, silent on whether the order can be obtained ex-parte or whether the application for such order must be on notice to all parties.

Conclusion
Undoubtedly, this is not an exhaustible list of matters arising from the CIDB, but it’s a start – some food for thought. My dear colleagues, kindly, make your comments and contributions, so that, hopefully, they may be considered during the upcoming public hearing.

P.S.: Covid-19 Update
A few weeks ago, I mentioned the issue of W who was kept in the holding area of IDH Yaba, after initially testing positive for Covid-19 (X and Y had tested negative). W was re-tested, again tested positive for Covid-19, and was then fully admitted to IDH. W was discharged a few days ago, and adjudged the IDH Facility to be well maintained, very clean, with excellent Doctors and medical personnel who were very professional. Kudos to the Lagos State Government, for this.

The other day, we drove through the Tejuoso area of Lagos, and I observed that people were refused entry into the main shopping complex if they were not wearing face masks, but there was no social distancing on the queue to gain access into the complex. On the streets, it is business as usual – life is back to normal. Many were not wearing face masks, some were rushing to board public transportation, squeezing themselves into ‘kabu-kabus’, and there was absolutely no social distancing there too. People are just not following the Covid-19 safety guidelines which have been published and circulated by Government and many other bodies, repeatedly.