Demand public scrutiny, stakeholder consultations
By Gabriel Ewepu – Abuja
Civil Society Organisations, CSOs, numbering 39, Monday, kicked against the Control of Infectious Disease Bill on the floor of the House of Representatives over alleged threat to human rights.
The CSOs include Girl Child Africa; Center For Liberty; Centre for Democracy and Development (CDD); Civil Society Legislative Advocacy Centre (CISLAC); Say No Campaign; Amnesty International; Yiaga Africa; Global Rights; African Centre for Media and Information Literacy (AFRICMIL); Lawyers Alert; Women Advocates Research and Documentation Centre (WARDC) Enough is Enough; Community Life Project; Centre for Information Technology and Development (CITAD); Centre for Impact Advocacy; Concerned Nigerians; Lex Community NG; Education as a Vaccine; Dinidari Foundation; Albino Foundation; The Community of PWDs in Nigeria; Dorothy Njemanze Foundation; Tap Initiative for citizens development; Raising New Voices Initiative; Haly Hope Foundation; Youths Concerns Development Foundation; Adopt A Goal For Development Initiative; Coalition in Defence of Nigerian Democracy and Constitution; PITCH Nigeria; House of Justice; Molluma Medico-Legal Centre;
Others are Albino Foundation; The Community of PWDs in Nigeria; Alliances for Africa; Youths in Motion; Persons with Disabilities Action Network (PEDANET), Nigeria; Silverchip Fox; Community Action for Popular Participation CAPP; Resource Centre for Human Rights & Civic Education (CHRICED); Human and Environmental Development Agenda; and International Press Centre, IPC, Lagos, Nigeria.
In a statement signed by the leaders of the coalition made it known that upon resumption, the House of Representatives considered a Bill titled ‘Control of Infectious Diseases Bill’ co-sponsored by Speaker of the House of Representatives Rt. Hon. Femi Gbajabiamila; 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, make 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 Bill has passed first and second reading at plenary under controversial circumstances.
According to them, the bill was slated for a record third reading that same day before it was resisted by some vigilant members.
The statement reads in part: “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;
- 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 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.
- 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 of 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 money, 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.
- 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.
- 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.”
Meanwhile, they demanded 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. The House should utilize the opportunity provided by the reviewed lockdown policy to consult with relevant stakeholders and the people.
“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.”
They also pointed out that while they understand the importance of a legislative framework that guarantees an effective response to pandemic/public health crises, it is important to do so within the rule of law and in conformity with the Constitution and Nigeria’s international human rights obligations and 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”, they added.