The Governors are apprehensive, Youths are warming up for a confrontation, some Nigerians, including former lawmakers, are in court; all in a strenuous effort to stop the passage of one of the most controversial pieces of legislation, in Nigeria’s nascent democracy. The controversial Control of Infectious Diseases Bill 2020, since it was conceptualised, has attracted all manner of criticism and conspiracy theories. While some seem to be sceptical about whom the sponsors of the Bill may be and their reasons for doing so, others think it is simply a cheap plagiarism of the Singapore Infectious Disease Bill of 1977. Whatever it is, Femi Falana, SAN and Sam Omotoso dissect the proposed law, and examine some of its possible resultant effects on the larger Nigerian populace
The InfectiousDisease Control Bill is Superfluous
Femi Falana, SAN
The NCDC Act 2018: Functions of the NCDC
The House of Representatives is currently toying with the idea of passing the Control of Infectious Disease Bill 2020, that purports to repeal and replace the Quarantine Act. The Bill hurriedly passed the first and second reading, the day it was introduced in the House. But, based on popular opposition to the Bill the House of Representatives has resolved to conduct a public hearing on it. With respect to the leadership of the House, the Bill is superfluous, illegal and unconstitutional.
No doubt, the Quarantine Act is a colonial law that ought to have been discarded and replaced. But, the Nigeria Centre for Disease Control Act which was enacted in November 2018, has established the NCDC and empowered the body to lead the preparedness, detection and response to infectious disease outbreaks and public health emergencies throughout the country. The principal duties of the NCDC are as follows:
“To protect the health of Nigerians through evidence based prevention, integrated disease surveillance and response activities, using a one health approach, guided by research and led by a skilled workforce”.
Pursuant to Section 3 of the NCDC Act, the principal functions of the NCDC include:
• Prevent, detect, and control diseases of public health importance.
• Coordinate surveillance systems to collect, analyse and interpret data on diseases of public health importance.
• Support States in responding to small outbreaks, and lead the response to large disease outbreaks.
• Develop and maintain a network of reference and specialised laboratories.
• Conduct, collate, synthesise and disseminate public health research to inform policy.
• Lead Nigeria’s engagement with the international community on diseases of public health relevance.
In reacting to the enactment of the law at the material time, the Director General of the NCDC said that: “The NCDC Act gives us the full legal mandate to continue this function, contributing effectively to global health security. Among other things, the NCDC Act also spells out our responsibility in surveillance, outbreak response, developing a network of public health laboratories and coordinating the training of field epidemiologists”.
Curiously, the Control of Infectious Disease Bill is silent on the NCDC Act, while seeking to amend the 1926 Quarantine Act. In spite of its shortcomings, the Quarantine Act has been invoked by political leaders to issue guidelines and directives as deemed appropriate, and fund isolation centres and molecular laboratories to combat Covid-19. All these executive powers are being transferred from elected political leaders to an appointee, the DG of NCDC.
However, it is pertinent to point out that, the Quarantine Act was invoked in the fight against the Covid-19 pandemic, because President Buhari failed to declare a state of emergency on the health crisis pursuant to Section 305 of the Constitution. Once a state of emergency is declared, the President would have been able to adopt any measures deemed appropriate. Section 45 of the Constitution specifically provides that all human rights (apart from the right to life and freedom from torture) can be infringed upon or derogated from in the interest of defence, public health and public safety.
However, we must be so cautious, so we would not be caught adding fire to the already blazing flame, or throwing away the baby with the bathwater. I have carefully perused the provisions of the Bill, and I can confidently say that it is a dangerous piece of legislation that must be completely rejected in toto. For convenience, I will divide the disturbing implications of the Bill into two, and make an attempt at addressing the constitutional, legal and policy issues arising therefrom.
The Bill Smacks of Dictatorship
Having read through the Bill, the only reinforcing and overwhelming voice is that of dictatorship. The Bill grants discretionary and overbearing powers to the Director General of Nigerian Centre for Disease Control, the Police and Health Officers. The reproduction of some of the provisions of the Bill would be helpful, in driving home this point.
Section 5(2)(3) of the Bill, for example, makes the failure to disclose any information requested by the NCDC DG an offence. It provides thus: “(2) For the purpose of any public health surveillance programme, epidemiological investigation or survey under subsection (1), the Director General may require any person —(a) to furnish the Director General, within or at the times and in the form or manner the Director General specifies, with any of the following: (i) any information (known to the person at those times); (ii) any sample of any substance or matter in the possession or control of that person at those times, whether obtained under this Act or otherwise; and (b) to submit to a medical examination at the times the Director General specifies. (3) If a person who is required by the Director General under subsection (2) to furnish any information or sample, or to submit to any medical examination, fails, without reasonable excuse, to do so, he shall be guilty of an offence”.
As if that is not enough, Section 15 of the Bill empowers the Minister to declare ANY premises an isolation area, and anyone who causes to leave the area thereafter, would be guilty of an offence. The DG has the ultimate power to cause the arrest of any person who attempts, or is suspected to have left the declared isolated area. This arrest can be made without a warrant by any Police officer or any Health Officer. Is the Health Officer empowered to effect arrest under our criminal jurisprudence? Absolutely not. Three categories of persons can lawfully effect arrest namely: Police officers, Judicial officers and private persons. See Sections 3 and 20 of Administration of Criminal Justice Act, 2015.
Section 24 of the Bill empowers the Police to cause the arrest of anyone who is suspected to be suffering from infectious disease, at any place and at any time. The question that follows is: what is the gauge or parameter for determining a policeman’s suspicion? Wide discretionary power, is given to a Police Force known for gross violation of human rights. It would have even been a different case entirely, if the Bill provides for a “reasonable suspicion”.
Section 13 of the Bill grants the DG of NCDC the power to isolate anyone suspected to have been infected by a disease, at an undisclosed location or anywhere he deems fit. This provision could be interpreted to imply the power of the DG of NCDC, to convert a private building to an isolation centre.
Section 55 of the Bill provides that the DG of NCDC has the power to enter and search any premises without warrant, for the purpose of investigating into any outbreak or suspected outbreak of an infection. Shockingly, Section 71 of the Bill exempts the DG and all other government officers empowered under the Act, of any liability. It provides thus: “No liability shall lie personally against the Director-General, any Health Officer, any Port Health Officer, any Police Officer or any authorised person who, acting in good faith and with reasonable care, does or omits to do anything in the execution or purported execution of this Act”. It shields the DG and other officers from accountability and responsibility for their actions, and possible inactions.
In fairness to the sponsors of the Bill, the Bill would have been healthier if it had not conferred too much powers on the DG of NCDC, who is not an elected official of the people. The powers are too wide, and could be easily used as a sword against the Nigerian people. The powers under the proposed law are neither restricted, nor limited. To grant the DG such arbitrary and unlimited powers, is an invitation to tyranny and chaos. With this Bill, abuse of power is inevitable.
The power to compulsorily takeover any premises as an isolation area under Section 15 of the Bill, clearly violates the right to freedom to own moveable and immoveable property anywhere in Nigeria provided for under Sections 43 and 44 of the 1999 Constitution. Funnily enough, the power can be only invoked upon mere suspicion. To take over the premises of a suspected person even before finding out whether he is genuinely infected, is similar to conviction before trial. See Teumpenkenso v Ribadu & Anor (2017) LPELR-42984(CA).
Additionally, it is trite law that a patient has the right to refuse lifesaving medication. The court has interpreted the right to privacy and freedom of thoughts, conscience and religion, to mean the right to decline medication and medical help. The Supreme Court in the case of Medical and Dental Practitioners Disciplinary Tribunal v Okonkwo (2001) LPELR-1856(SC) held that “In several cases, the courts have refused to override the patient’s decision, in others, they have found ways round the problem of the paramountcy of the patient’s consent. What is important is that, in no case has the decision to override the patient’s decision been left with the medical practitioner or the hospital” – per Ayoola, J.S.C. (P.49, paras.G-B).
However, for infectious diseases and at periods of pandemic, this fundamental right can be derogated from on the ground of public health through a legislation in that respect, as envisaged under Section 45 of the 1999 Constitution.The law permits compulsory vaccination, if it is meant to combat infectious or communicable diseases.
The power given to the Police to cause the indiscriminate arrest of anyone suspected of suffering from an infectious disease at any place and at any time, clearly violates the right to freedom of association, right to freedom of movement, right to personal liberty and right to dignity of the human person, provided under Sections 40, 41, 35 and 34 of the 1999 Constitution respectively.
The power of the DG to search any premises of a suspected person he believes to have been infected with a communicable disease, is a violation of the right to privacy under Section 37 of the Constitution. This is so, because the DG is not empowered by law to carry out searches. Searches are meant to be carried out by the Police, who must be in possession of a search warrant as provided under Section 144 of ACJA. Section 55 of the Bill therefore, violates the provision of the ACJA and will not stand.
The Tasks Ahead
Instead of wasting precious time and scarce funds on conducting a public hearing on a Bill that is illegal in every material particular, the members of the National Assembly should collaborate with the Executive to pass the Economic Stimulus Bill to reposition the economy to face the challenge of Covid-19, and pass a Social Security Bill to address the increasing rate of poverty, unemployment and insecurity in the country. The National Health Act 2014 which provides for one percent of the Consolidated Revenue Fund per annum, should be increased to at least fifteen percent, while the Nigerian Health Insurance Act should be amended to cover all citizens in the public and private sectors. As a matter of urgency, the National Assembly should appropriate sufficient funds for equipping public health institutions in the country.
Femi Falana, SAN, Human Rights and Constitutional Lawyer