The ‘Control of Infectious Diseases Bill, 2020’ sponsored by the Speaker, Hon Femi Gbajabiamila and two other members (Pascal Obi and Tanko Sununu) was last week rushed through first and second readings in the House of Representatives. Rather curiously, members were not provided copies of the legislation until motives of the sponsors were called into question. When eventually members received copies and observed that it contained several contentious provisions, conspiracy theorists went to town. Now, we hear of millions of dollars from Mr Bill Gates (who else?) allegedly being doled out to lawmakers in a bid to foist on our country a compulsory vaccination law that would kill off many Nigerians and reduce our population.
As an aside, even in the United States, especially among right wing Christians, once Mr Bill Gates is linked to any health-related issue, you hear tales like this. In March, popular conservative Pastor Rick Wiles warned that ‘There Will Be Blood in the Streets’ (of America) if Bill Gates continues to push for vaccinations in his bid to build ‘Lucifer’s Antichrist System’. According to Wiles, “Bill Gates wants to get a microchip in your body, he wants a microchip in your baby’s body.” But let’s not get ahead of ourselves. The current challenge in our country is the bill by Gbajabiamila which, as he explained in plenary on Tuesday, was meant to “take proactive action to prevent the entry into Nigeria of Infectious diseases and the management of public health emergencies when they occur.”
Whatever may be the merit of the idea, my friend, Dr Laz Ude Eze has described the timing of this bill as akin to an attempt to make new rules of engagement in the middle of a war. At a period when we are dealing with a pandemic and we do not know how it will all end, the pertinent question remains: Is this the right time to enact a bill on infectious diseases? Besides, the bill has many provisions that violate personal liberty and privacy, make nonsense of our federal structure, stigmatise and criminalise infectious diseases and generally confer on the Nigeria Centre for Disease Control (NCDC) Director General (or whoever controls him/her) absolute and extra-constitutional powers, “notwithstanding any restriction imposed by any written law, rule of law, rule of professional conduct or contract.”
But before I deal with the substantive issues, let me state that I have read the 47-page bill and agree with its principle: To replace the outdated Quarantine Act of 1926. So, rather than condemn Gbajabiamila, I will commend him and his colleagues for recognising the gap and trying to fill it, although I disagree with their methods. Against the background that the only infectious diseases currently recognised in the Quarantine Act are typhus, cholera, smallpox, plague and yellow fever, I see nothing wrong in repealing and replacing a colonial law enacted almost a century ago and 34 years before Nigeria became independent. The challenge that I see are in the provisions of this bill and the timing of its proposed enactment.
The Quarantine Act of 1926 makes no allowance for infectious diseases like COVID-19 and was passed at a time before air travel became popular. In fact, the Act makes no provision for the prevention of infectious diseases through air travels nor does it even make mention of airports or aeroplanes. As Gbajabiamila said on Tuesday, there are also contentions about where President Muhammadu Buhari derived the powers he exercised to lock down Lagos and Ogun States for five weeks. And regarding punishment, the Quarantine Act of 1926 puts a maximum fine of the sum of N200.00 (Two Hundred Naira) for any person found to be in violation of provisions. That cannot deter anybody in Nigeria.
From the foregoing, we can infer that the Bill by Gbajabiamila and co is necessary and important. The contention is now about the provisions. Aside the failure to take into account the current federal structure in Nigeria where powers are devolved between and among three constituent units (federal, state and local governments), the bill gives the NCDC Director General absolute powers, including over and above that of security agencies on matters that deal with law and order and over and above the courts in judicial matters.
Despite denials and attempts to obfuscate, the import of Section 30 of the Bill is that it will allow forceful vaccination against a person’s choice. Subsection 2 specifically states, “Notwithstanding subsection (1)(b), a Port Health Officer may require such person to undergo vaccination or other prophylaxis and may subject him to isolation or surveillance for such period as the Port Health Officer thinks fit”. To now add insult to injury, the immunity provided in Section 70 of the Bill effectively ousts court jurisdiction and places the DG and his health officers above the law.
The power to confiscate and turn property in any state of the federation into an isolation centre is also not only open to abuse, it is in conflict with powers of state governors and runs afoul of the fundamental rights of citizens. The Bill, as was observed by a lawyer, also authorizes the arrest without warrant on almost every issue based on mere suspicion and the private opinion of the DG of NCDC. Meanwhile, Section 8 of the proposed bill, “clearly takes away the duty of confidentiality owed patients by their personal physician. A citizen can be subjected to inhumane treatment of publishing his/her medical history without his/her consent and refusal attracts a conviction without trial in the court of law. Section12 empowers the DG on a mere suspicion to prohibit the burial of a deceased by his/her family. This again violates the citizens right to human dignity.”
With several provisions conditioned on ‘the opinion of the Director General’, I have never seen a law that gives such extraordinary discretionary power to an appointee of the executive arm. From taking actions on the presumption of ‘good faith’ (by the officer’s own judgement) to omnibus immunity, the NCDC Director General (or whoever pulls the strings for him/her) can “prohibit or restrict, subject to such conditions as he may think fit”. In a nation where religion is now about crowds, even a church or mosque service can be cancelled whenever and wherever “it appears to the Director General that the holding of any meeting, gathering or any public entertainment is likely to increase the spread of any infectious disease.” And if you sneeze inside a Molue in Lagos, you can be arrested by the police or ‘health officer’ on suspicion that you harbour an infectious disease!
What stands out in the bill is the powers vested in one person. Once the NCDC Director General is convinced that he/she is ‘acting in good faith and with reasonable care’, he/she can trample on the rights of any Nigerian, living or dead since the donated powers include deciding on what to do with corpses. Interestingly, I understand that the NCDC had no input in this proposed legislation that confers on its Director General such extraordinary powers.
On the whole, as important as this bill may appear, Gbajabiamila will be helping us if he makes it part of a broader legislative agenda for the Nigerian health sector in a post-coronavirus world. Other areas to look at include the need for robust and well-funded research for herbal solutions into a number of these diseases, and a total revamp of the health infrastructure. On Tuesday, a member of the Borno State House of Assembly died in circumstances that can only be described as pathetic. He was initially rejected at the University of Maiduguri Teaching Hospital by health workers who insisted that the available bed space was reserved for childbirth emergency. By the time the usual Nigerian strings were pulled and a space was created for the lawmaker, it was too late. These are some of the issues that should also concern the Speaker of the House of Representatives if the agenda is about healthcare delivery in Nigeria.
In yielding to public opinion and the necessity for a public hearing, Gbajabiamila on Tuesday disagreed with those who question the timing of this bill. “The number of those currently infected by the coronavirus continues to rise alongside the number of those who have died. There is no timeline for when this disease will pass, and nobody can predict when the next public health crisis will occur, just as nobody predicted the present predicament. It bears restating that we do not have in our country, a healthcare system or for that matter, a national economy that is sufficiently robust to withstand the dire consequences of a sustained infectious disease pandemic. We cannot tie our own hands in the fight against this disease,” he said.
Nobody can fault the diagnosis of the problem as eloquently stated by the speaker. But what he conveniently chose to ignore is that there will be more lessons to learn as this pandemic unfolds not only in Nigeria but across the world—lessons that will enrich such legislation. If, as Gbajabiamila claimed, the idea is to proffer a solution to the challenges brought about by COVID-19, why is he proposing rules before the development of a vaccine? With about 108 vaccines in experiment and eight on clinical trial, do we know the extent of the threat posed by COVID-19? And where is the NCDC autocracy coming from? Why such desperation to enact the legislation at this period? While I do not believe in the conspiracy theories being bandied, I can also see the usual laziness that is common with law-making in Nigeria. Most of the provisions in the bill were dubbed from Singapore’s Infectious Diseases Act (Chapter 136) without any effort to adapt them for our local environment.
Meanwhile, some of the basic features of a good law include that it should be acceptable to the majority, should not confer discretionary powers on anybody and should not trample on the rights of citizens. This bill violates all these ideals and several others most flagrantly. Another canon of a good law is that it must be enforceable. Given our federal structure, many provisions in this Bill cannot be enforced. We have seen how easy it has been for Governors Ben Ayade and Yahaya Bello to effectively shut out the NCDC from their states so as to maintain ‘zero-death’ records even when we are all aware residents have succumbed to COVID-19 and we may witness a catastrophe if common sense does not prevail in both Cross River and Kogi States very quickly.
My advice to the Speaker is to withdraw this contentious bill, consult more widely with critical stakeholders, including Nigeria Governors Forum officials and health sector professionals, and come up with a draft that will better serve public interest when this pandemic has been dealt with. If he doesn’t do that, and continues his desperation to foist on Nigerians a bill that appears more like a military decree, questions will continue to be asked regarding whose interest he seeks to promote or protect.Email: firstname.lastname@example.orgCulled from THISDAY.