Juliana Taiwo-Obalonye, Abuja
Forty-one Civil Society Organisations (CSOs) have questioned the intention behind the accelerated hearing by the House of Representatives on a Bill entitled ‘Control of Infectious Diseases Bill’ co-sponsored by Femi Gbajabiamila, Speaker of the House; Rep Pascal Obi, and Rep Tanko Sununu.
The Bill, which seeks to repeal the obsolete Quarantine Act of 1929 and enact the Control of Infectious Diseases Bill, makes provisions relating to quarantine and regulations for preventing the introduction into and spread of dangerous infectious diseases in Nigeria, and for other related matters.
The CSOs described the Bill which has passed first and second reading at plenary as controversial.
They noted that while they understood the importance of a legislative framework that guarantees an effective response to pandemic/public health crises, it must be done within the rule of law and in conformity with the Constitution and Nigeria’s international human rights obligations.
According to them, the bill contains threats to human rights and abuse of power, it is ambiguous and lack of clarity promotes inter-agency conflicts and jurisdictional rivalries and lacks public scrutiny, stakeholder review and engagement.
The rights groups have therefore demanded as a matter of urgency that, the House of Representatives subject the Bill to public scrutiny by embarking on stakeholder consultations and a public hearing to harness public inputs into the legislation. They also call on the House Reps to review all provisions of the Bill that foster inter-agency conflicts and abuse of power and undermine constitutionally guaranteed rights and are contrary to the rule of law and Nigeria’s international human rights obligations.
The statement by 41 CSOs read in parts: “We also learnt that the bill was slated for a record third reading that same day before it was resisted by some vigilant members.
The civil society community opines we are alarmed by the House of Representatives’ attempt to give accelerated passage to such critical legislation like the Control of Infectious Diseases Bill without consultation and inputs from relevant stakeholders and the public. We understand that the House is resolute to pass the bill and it has fixed Tuesday, May 5, 2020, for the presentation of the report of the Committee of the Whole and clause by clause voting on the bill without public hearing or consultation with relevant stakeholders. This runs contrary to the principles of effective and inclusive lawmaking.
As a community, CSOs note the following issues, amongst others, on the proposed Bill and the process of its passage;
1. Threats to human rights and abuse of power
The Control of Infectious Diseases Bill vests overbearing discretionary powers on the Director-General of the Nigerian Center for Disease Control (NCDC), while making no provision for reviewing and controlling the exercise of such powers. The Bill empowers the NCDC to restrict fundamental rights and freedoms at will, and abuse constitutionally established institutions and processes, without any form of accountability. For instance, Section 10 (3) gives the Director-General express powers to use force to enter any premises without warrant; Section 19 confers the Director-General with powers to prohibit or restrict meetings, gatherings and public entertainments; Section 15(3e) also gives powers to the Director to authorize the destruction and disposal of any structure, goods, water supply, drainage etc. In addition, Section 47(1) confers discretionary powers on the Director-General to order any person to undergo vaccination or other prophylaxis. All these powers can be abused for political and economic reasons if not properly checked.
Section 71 of the Bill absolves the Director-General, any Health Officer, any Port Health Officer, any police officer or any authorised person of any liability when ‘acting in good faith and with reasonable care.’ The use of ‘good faith and reasonable care’ is ambiguous and subject to misuse, manipulation, and misinterpretation for personal gain. While the threat of infectious diseases may be apparent, measures deployed for their prevention must be within the ambits of the law and must protect citizens from willful abuse of rights. It is important to note that the that the legislative and policy measures currently being implemented in response to the COVID-19 pandemic are inadequate to respond to and manage the challenge of infectious diseases with grave implications on the country. Therefore, any intervention seeking to provide a comprehensive legal and policy framework that ensures the effective management of circumstances involving infectious diseases; streamlining of public health response and preparedness; involvement of all tiers of government; and transparency in the management of infectious diseases would be a positive development. However, the spirit of section 45 of the 1999 Constitution of Nigeria (as amended) validating laws that may restrict the exercise of certain human rights requires that such laws must be reasonably justifiable in a democratic society and also, must be subjected to judicial review. This Bill, in its proposed form, fails to meet this standard, as it is not reasonably justifiable in a democratic society.
2. Ambiguity and Lack of Clarity
The Bill violates key principles of legislative drafting rules mandating laws to be simple, clear and unambiguous. This leaves room for a significant amount of discretion on the part of the implementing authorities and limits the rights of citizens and respective institutions to question decisions taken in the exercise of the powers provided in the Bill. There is, therefore, the need to clearly define the terms used, the extent of powers granted, and penalties for breach. For instance, the proposed Bill makes an attempt to define ‘surveillance’ in its interpretation section but fails to provide a clear definition on the reach and extent of the power to demand public health surveillance program and regulating framework. Throughout, the Bill is referred to as an “Act” implying that the proposed document is already an enacted legislation (Act). In addition, the Bill does not define who constitutes a health worker, which, as defined in the Bill, as anyone appointed by the Director-General. In addition, we have concerns with Clause 74(1) and (2), which deals with the collection of fees, charges and monies, and some payments to be made to the Consolidated Fund or the agency. This creates a discrepancy in the coordination and management of public funds. It also raises the question of why some payments are collected by Directors and the Director-General, but with different destinations.
3. Inter-agency conflicts and jurisdictional rivalries
The Bill, under Section 55 and 57, confers the power of investigation and arrest on any health officer authorized in writing by the Director-General or a police officer. We fear these provisions will create jurisdictional disagreements between the Nigerian Police and the NCDC. Arrest and investigation are statutory functions of security agencies; therefore, foisting similar powers to the Director-General of the NCDC or a health worker amounts to duplication and poses threats to national security and human safety.
4. Lack of Public Scrutiny, Stakeholder Review and Engagement
A Bill as sensitive and crucial as the Control of Infectious Diseases Bill must be subjected to public scrutiny on the contents of the Bill, and to proper debates on the legality, constitutionality, and other aspects of the Bill. This includes providing citizens and relevant stakeholders with the opportunity to make inputs on the Bill. Considering the sensitivity of the Bill, the National Assembly must ensure careful consideration and aggregation of diverse voices.
To this end, we demand as a matter of urgency that:
1. The House of Representatives subject the Bill to public scrutiny by embarking on stakeholder consultations and a public hearing to harness public inputs into the legislation. The House should utilize the opportunity provided by the reviewed lockdown policy to consult with relevant stakeholders and the people; and
2. Review all provisions of the Bill that foster inter-agency conflicts and abuse of power and undermine constitutionally guaranteed rights and are contrary to the rule of law and Nigeria’s international human rights obligations.
It is important to note that while we understand the importance of a legislative framework that guarantees an 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. democratic principles. The National Assembly should refrain from vesting powers beyond the remit of institutions. We must avoid the temptation of vesting absolute powers in public officials 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.