Eban Christopher Eyare Esq.

Introduction

In recent times, there have been quite a number of public outrage in Nigeria ranging from the agitations against rape, all forms of gender-based violence, corrupt institutions, capricious and cruel police brutality and the passing to law of the control of infectious diseases bill 2020.
It is my intention to focus solely on the said control of infectious diseases bill. The infamous bill is titled “A Bill for an Act to Repeal the Quarantine Act and Enact the Control of Infectious Diseases Act, Make Provisions Relating to Quarantine and Make Regulations for Preventing the Introduction into and Spread of Dangerous Infectious Diseases, and for Other Related Matters” seeks to repeal the Quarantine Act, Laws of the Federation of Nigeria 2004 (originally enacted in 1926) through its Provisions to Quarantine, vaccinate and make regulations for Preventing the Introduction into and Spread of Dangerous Infectious Diseases in Nigeria.

The Control of Infectious Diseases bill was sponsored by Hon. Femi Gbajabiamila (Lagos:APC) – Speaker, House of Representatives, Hon. Tanko Sununu (Kebbi:APC) – Chairman, House Committee on Healthcare Services and Hon. Pascal Obi (Imo:APM) – Chairman, House Committee on Health Institutions. The Bill was presented to the house by the Speaker Hon. Femi Gbajabiamila on Tuesday 28, April 2020 and has quickly passed both first and second reading in the House of Representatives. The said bill has just currently undergone a public hearing in the conference hall of the house of representative.

The bill deserves special attention due to the negative attention it has enjoyed from the Nigerian populace as many believe the bill infringes on the fundamental human rights of Nigerians as jealously protected by the Nigerian constitution, while others believe it is a product of a great western conspiracy. I am more concern with the legal implications of the said bill, hence this work is a legal examination of the bill vis-à-vis the 1999 Constitution of Nigeria as amended.

Some Provisions of the said Bill have raised concerns amongst Nigerians hitherto the intensified pressure on the house to suspend the process of passing the bill into law including some lawmakers, who were not comfortable with the speed at which the Speaker wanted the said Bill to be passed. Some of the Lawmakers agitating for the careful review of the bill include Hon. Chris Azugbogu (PDP Anambra), Hon. Sergius Ogun (PDP Edo), Hon. Bamidele Salam (PDP Osun) and Hon. Nkem Abonta (PDP Abia).

Hon. Abonta particularly expressed his fear on the compulsion of the vaccination on Nigerians and thus stated,

“We need to see all the details and make sure we do not create another problem when the bill is passed into law.”

While the conveners of the Constitution and the Free Nigeria Coalition and the Coalition in Defence of Nigerian Democracy, Adebayo Raphael and Ariyo-Dare Atoye maintained that.

“While we welcome every genuine effort to repeal and replace the Quarantine Act with a comprehensive legal framework, we also want the lawmakers to know that the passage of this bill cannot be rushed because it is in conflict with the constitution and threatens national security.” They further noted that “We fear that any further attempt to hurriedly act on this proposed bill could lend credence to rising public concerns and conspiracy theories on social media locally and internationally that the House of the Representatives is acting insensitively under the ‘dark influence’ of some global vaccine players with undeclared interest…The sponsors of this bill have demonstrated crass ignorance of history about public resistance to vaccine in Nigeria. Consequently, the suspicions already generated by the poor handling of this process are bound to trigger a new wave of resistance and rejection when a COVID-19 vaccine is eventually discovered and brought into the country.”

The Civil Society Legislative Advocacy Center (CISLAC) and 40 other non-profit NGOs also condemned the attempt by the house to give accelerated passage of the said Bill without proper public or stakeholders consultations. The Executive Director of CISLAC, Auwal Musa Rafsanjani in a statement said,

“it is important to note that while we understand the importance of a legislative framework that guarantees effective response to pandemic/public health crises, we must do so within the rule of law and in conformity with the constitution and Nigeria’s international human rights obligations.” he noted further that “The national Assembly refrain from vesting powers beyond the remit of institutions. We must avoid the temptation of vesting absolute powers on public officers as this could be abused and misused to undermine constitutionally guaranteed rights, Laws must be made for the people and any law that fails to protect the human rights of the people as guaranteed in the constitution must be rejected in its entirety”

On the 4th of May 2020, former senator Dino Melaye filed an action in the Federal High Court Abuja against the planned repeal of the Quarantine Act in Suit No. FHC/ABJ/CS/465/2020 which has the Clerk of the National Assembly, the Speaker of the House of Representatives, Attorney General of the Federation and Inspector General of Police as respondents.

The Control of Infectious Diseases Bill 2020

With 82 Sections, the bill is to be administered by the Director-general of the Nigerian Center for Disease Control and the said Bill is meant to be proactive rather than reactive in the face of an outbreak but has unfortunately violated several human rights hitherto the public outcry against the passing of the bill into law.

Some grey areas of the said Bill include:

Section 7 of the said Bill enables the government with the exclusive right to order a post-mortem examination on any corpse as they may deem fit to, notwithstanding one’s personal faith or religious believes as protected in Section 38 of the 1999 Constitution of the Federal Republic of Nigeria as amended. Although not absolute, Section 38 of the 1999 Constitution has an exception which was set out by the Nigerian Supreme Court in Medical and Dental Practitioners Disciplinary Tribunal v Okonwo (2001) FWLR (Pt 44) 542. Ayoola JSC, who read the unanimous judgement of the court, stated:
The right to freedom of thought, conscience or religion implies a right not to be prevented without lawful justification from choosing the course of one’s life, fashioned on what one believes, and the right not to be coerced into acting contrary to one’s belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of the society or public health in jeopardy…

In the aforementioned case, the court upheld the right of a Jehovah’s Witness to object to a blood transfusion and held that a medical doctor had no right to overrule the patient’s refusal of a blood transfusion on public interest grounds. In the same vain, the government of Nigeria has no right to order a post-mortem examination on any corpse as they may deem fit to where such a practice is against the personal believe or faith of the deceased.

Section 8 of the said Bill provides that patients’ medical records can be divulged without their permission/knowledge because a Healthcare professional shall comply with a requirement to transmit to the Director General. Notwithstanding any restriction on disclosure of information impose by any written law, rule of professional conduct or contract, and he shall not be treated as being in breach of any of such restrictions notwithstanding anything to the contrary of that law, rule or contract.
Section 10 of the said Bill empowers the Director General with the power to order any owner of a property or vessel to disinfect or cleanse his personal property at any time deemed fit by the DG and upon default of such order shall be guilty of an offense, notwithstanding one’s right to privacy of citizens, homes etc. as enshrined in Section 37 of the 1999 Constitution of the Federal Republic of Nigeria as amended. This provision of the bill is a direct contravention and infringement of the right to private and family life sought to be protected in Section 37 of the 1999 constitution. To worsen this flaw, this can be done without any form of warrant as provided in section 11(3) of the said bill.

Section 14 of the said Bill states that the DG may whenever, order the surveillance of any person who is or is suspected to be a carrier of any infectious diseases for such a period of time and under any condition as he thinks fit. Notwithstanding one’s right to privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications as guaranteed and protected in section 37 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
Generally, the right to privacy refers to the concept that one’s personal information or communications are protected from public scrutiny especially when it does not violet public peace, security and interest. A violation of this right solely on the suspicion on a person or the discretion of the DG is a fundamental breach, inconsistent with the intent of the Constitution to the extent of the protection of the rights of the Nigerian people.

Section 14 (3) (1) of the bill also adds that any person who fails without a reasonable excuse, to comply with any condition relating to his surveillance imposed by the DG shall be guilty of an offense.

Section 15 and 19 of the said Bill provides that the Minister may, if it appears necessary or expedient for the securing of public health or safety during a public health emergency by a discretionary order declared the whole of or such area in Nigeria or any property in Nigeria and may in such order restrict or prohibit the entry, stay of persons, use or building, holding of or gathering of persons in the restricted Zone subject to conditions as he may think fit. This notwithstanding one’s fundamental right to own immovable properties anywhere in Nigeria and to assemble freely and associate with other persons as enshrined in the both Section 43 and 40 of 1999 Constitution of Nigeria as amended.

Section 46 and 47 of the said Bill empowers the Director General to direct any person or class of persons to be vaccinated and states that every parent or guardian shall ensure that every child is vaccinated against the diseases set out in the fourth schedule of the said Bill. This provision is a complete disregard to one’s right to dignity of his person as enshrined in Section 34 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
The dignity of a human person is made concrete by the preponderant values of freedom, choice and solidarity. In the preamble of an important instrument of universal human rights and main spreader of values over the world (The Universal Declaration of Human Rights of 1948), dignity was crowned as basis to all human rights and is the pillar to all fundamental human rights enshrined in the 1999 Federal Republic of Nigeria as amended.

Every human being should allowed to enjoy the freedom to choose whether or not to be vaccinated especially when same doesn’t fall within the exceptions to one’s right to dignity of his/her person, more so when the individual involved is of a consent-able age.

A penalty of between 2million to 5million Naira as well as jail terms to persons found guilty of defaulting the provisions of the Act. See Section 9, 36, 37, 38 of the said Bill
There are several other observations and concerns associated with the pending bill which has drawn a wide attention of Nigerians and other concerned foreign observers to the draconian nature and composition of the said bill and has raised many questions such as; Why are the lawmakers keen on exploring the prospect of forcing parents to vaccinate their children at birth when western nations and China where the virus was created from have not done so? Why are the lawmakers hastening the passage process of the bill despite the absence of a tested vaccine or cure? Why is the public not involved in the process, passage and procedure of the said Bill?

Conclusion

The Bill seeking to replace the Quarantine Act with a Control of Infectious Disease Act may have laudable and reasonable intentions but it is highly characteristically draconian for a federal democracy as practiced in Nigeria. The said Bill has failed to meet the standard of a democratic society by infringing the rights of the very people it seeks to protect with some of its Provisions inconsistent with the provisions of the 1999 Constitution of the Federal Republic of Nigeria as amended and shall thus be void to the extent of its inconsistency. See Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria as amended.

The Bill for an Act to Repeal the Quarantine Act and Enact the Control of Infectious Diseases bill if passed into law as it is, is most certainly to cause more chaos, anarchy and conflict than the spread of infectious diseases it seeks to prevent.

Eban Christopher Eyare. A Legal Practitioner, writes from Nigeria.
REFERENCES

Statues

The Universal Declaration of Human Rights of 1948

The 1999 Constitution of the Federal Republic of Nigeria as amended

Control of Infectious Disease Bill 2020

Articles

Abuh A, Onochie B C, Akubo J, Oludare R, and Muanya C, “Pressure mounts on Reps to suspend infectious disease bill” May 5, 2020.

Healthwise “Your duty under the proposed control of infectious diseases bill 2020” May 2, 2020.

“Bill to strengthen NCDC passes second reading in the House of Reps” available at https://www.vanguardngr.com/2020/04/bill-to-strengthen-ncdc-passes-second-reading-in-the-house-of-reps/ and accessed on May 20, 2020.

Practical C