Grey areas Senate must address in National Health Emergency Bill 2020
The Bill for an Act to repeal the Quarantine Act and enact the Control of Infectious Diseases Act make provisions relating to quarantine and regulations for preventing the introduction into and spread in Nigeria of dangerous infectious diseases, and for other related matters, 2020 (SB. 413) is on the floor of the Senate, awaiting a public hearing.
Sponsored by Senator Chukwuka Utazi, Senator Oloriegbe Ibrahim Yahaya and 102 others, the Bill, which has passed through the first and second readings, is divided into five parts, comprising 70 clauses.
Part I (clauses 1 and 2) of the Bill vests administration of the Act on the director-general of the Nigeria Centre for Disease Control and Prevention.
Part II (clauses 3-24) covers control of infectious diseases within the Federal Republic of Nigeria; part III (clauses 25-43) provides for prevention of the international spread of infectious diseases, while part IV (clauses 44-51) makes provisions for enforcement generally, covering NCDC’s powers in dealing with outbreaks and suspected outbreaks of infectious diseases, among others. Part V (clauses 52-70) covers Miscellaneous Provisions.
But some stakeholders have raised many issues concerning the bill.
Yiaga Africa, a civil society organisation, said efforts to repeal the Quarantine Act for modern and comprehensive legislation to address public health emergencies is long overdue. It, however, argued that the Bill requires a total overhaul to enable it to achieve desired results.
“The powers of NCDC’s director-general under the Act are capable of defeating the purpose of the Bill,” an analysis of the bill by Yiaga Africa, endorsed by its director of programmes, Cynthia Mbamalu, said.
The organisation said the Bill is full of inconsistencies with the Constitution, especially fundamental rights provisions.
“These issues must be addressed by the Senate, while considering the Bill to prevent a harvest of litigations with the risk of several provisions being struck down in future,” the CSO said.
Reports indicated that the use of quarantine to curtail the spread of infectious diseases gained prominence in the 14th century against the growing need to protect coastal cities from epidemics.
Consequently, ships from infected ports on arrival in Venice, present-day Italy, were only cleared for landing after sitting at the dock for 40 days. Consistent with this known practice, the British colonial government in Nigeria enacted the Quarantine Act, which came into force on May 27, 1926, which makes it the 94th year of its existence, and it has never been amended.
Analysts say having been in existence for almost a century, the obsolete nature of the Quarantine Act became obvious with the emergence of the COVID-19 pandemic currently ravaging the world, including Nigeria.
By the powers conferred on the president under the Act, President Muhammadu Buhari issued regulations for curtailing COVID-19, and the exercise of that power has been subjecting of wide debate among lawyers and public commentators.
With this, the legislature felt the need for a robust legal framework that could be deployed in response to national health emergencies, which led to the introduction of the National Health Emergency Bill 2020.
Some Nigerians have, however, raised issues concerning the Act, which provides unchecked delegation of legislative powers.
It was gathered that the eight-section Quarantine Act has only six substantive provisions, and surprisingly, there is no provision of the Act directly providing for prevention or control of infectious diseases.
Instead, the Act (in section 4) empowers the president to make regulations for such prevention and control.
The implication, according to analysts, is that the legislature has no input in the prevention and control of dangerous infectious diseases.
Mbamalu said: “The Quarantine Act can be best described as “Dangerous Infectious Diseases (Regulation Making Powers) Act 1926.
“There is nothing in the Quarantine Act subjecting regulations made by the president to legislative scrutiny. It is strange that legislation that delegates almost all legislative powers under it to the executive does not make provision for any report by the executive to the legislature for approval.
“This is a sad case under the Quarantine Act. The penalty for contravention of regulations made by the president is N200 or imprisonment for a term of six months or to both (section 5).
“This has become grossly inadequate for any purpose, be it punitive or deterrent, taking modern realities into account, especially inflationary trends and the current value of the Naira.”
Other Nigerians said there is no express provision in the Act relating to the manner of handling infected persons and their treatment.
An Abuja-based analyst, Tikikus Simon, corroborated Yiaga’s stance. “The Act makes no provision for disposal of corpses of infected persons. There is no provision in the Act regarding surveillance of infectious diseases and measures to prevent an outbreak,” he said.
It was gathered that the Bill, in clause 69, empowers the minister to make regulations for carrying out Bill’s purposes and provisions for which he is responsible.
It is also interesting to note that NCDC’s director-general is also empowered to make orders relating to the various powers given to him under the Bill.
Unlike the Act that prescribes penalties for contravention of regulations made by the president, the Bill creates several offences and prescribes penalties.
While the fine for contravention of regulations under the Act is N200, the minimum fine under the Bill is N50, 000 and the maximum is N2, 000,000.00.
Some lawmakers have argued that the stated amounts are the maximum for offences, thereby giving room for discretion for the imposition of lower fines, while sentencing under the Bill.
“The Bill is a remarkable improvement on the Act on the adequacy of fines,” Bala Musa, an analyst said.
While the Quarantine Act prescribes imprisonment for six months, the Bill has various terms of imprisonment for various offences, the minimum and maximum being six months and two years respectively.
Still, as Nigerians call on the lawmakers to ensure a total overhaul of the bill, Clause 1, which vests responsibility for the administration of the Bill in the NCDC’s director-general is being questioned.
“It is improper to vest administration of legislation in an officer of an institution over the institution under which the officer exists,” an analysis by Yiaga Africa said.
Looking at the bill’s shortcomings, there is no qualification or requirement for the appointment of a Health Officer; instead, unchecked powers are given to the director-general to appoint.
Also, the provision for arrest without a warrant in clause 3(9) (b) does not include how the arrested person should be treated, including his destination and the timeframe within which to take him there.
The rule of law is central to good governance. So, for pundits, legislative response in a pandemic outbreak, such as COVID-19 entails a timely review of existing laws; updating them to meet contemporary and emerging challenges and effective oversight on their enforcement.
The laws should clearly provide how these would be achieved. It should be clearly elucidated in such a way that infractions of the people’s rights are reduced to the minimum.
The demand for the legislature to redraft the Control of Infectious Diseases bill under consideration to secure ownership of the people seems to be gaining momentum.