Eze Onyekpere
The recent attempt by the House of Representatives to enact a law for the regulation and management of infectious diseases, epidemics, pandemics and health emergencies has been met with stiff opposition by a cross-section of Nigerians. The opposition is not to the fact that such a law is needed at this time. Indeed, most Nigerians believe that COVID-19 met us without our being prepared for it in terms of legislation, policy and of course the finances to ride over it. The opposition is about the contents of the bill and how it seeks to achieve its objectives. This discourse reviews the broad objectionable issues in the bill and proposes a way forward.
The first point to note is that if we had appropriately implemented the provisions of the National Health Act 2014 and the Nigeria Centre for Disease Control Establishment Act of 2018, Nigeria would have been far better prepared for the response to COVID-19. We would have had health institutions that met standards, are properly equipped with medical hardware and software and the right calibre of human resources for health. The full implementation of the NCDC Establishment Act would have seen the development of several guidelines, protocols and regulations which would have been used to respond to the pandemic. But these are missed opportunities from which we can draw lessons for the future.
There are key challenges in the extant bill which relate to the observance of human rights and fundamental freedoms. These include the issue of the bill being littered with powers of arrest without warrant, compulsory acquisition of property, ouster of courts’ jurisdiction, forceful disclosure of patient’s confidential information, compulsory medical examination and treatment even where the citizen objects to it, and the hefty penalties that accompany proposed violations of the law. Also, the bill did not come out strongly to state that it was to be operated under a state of emergency but appeared to be a bill for a law to be used on a normal day to day routine basis.
It is imperative to start a response to these proposed derogations from fundamental rights by affirming that the grundnorm which is the Constitution of the Federal Republic of Nigeria 1999 in Chapter Four on Fundamental Human Rights foresaw that some of its provisions may be derogated from in times of national emergency. Hence, is Section 45, it provides that:”Nothing in Sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society;(a) in the interest of defence, public safety, publicorder, public morality or public health; or(b) for the purpose of protecting the rights and freedom or other persons”. Sections 37, 38, 39, 40 and 41 deal with the rights to privacy; freedom of thought, conscience and religion; freedom of expression and freedom to hold opinion and impart such opinion; freedom of assembly and association; as well as freedom of movement and to reside in any part of Nigeria. Thus, the constitution recognises that these rights can be derogated from for purposes of public health and for the purpose of protecting the rights and freedoms or other persons. If this bill is contextualised to be for declared emergency purposes, then derogations are permissible under the law in the rights circumstances.
But the foregoing does not give the executive and legislature a carte blanche to violate fundamental rights under the guise of promoting public health or to protect the rights and freedoms of others. The provisions of such a derogatory law must be reasonably justifiable in a democratic society. This is the first hurdle any such derogatory provision will need to scale to pass the test of constitutionality. There is the test of proportionality; if medical evidence supports the restriction of movement of a suspected disease carrier for 14 days and the order for restriction is for very much longer period, it will also be clear that it has exceeded what is necessary to deal with the emergency at hand.The second hurdle is that the derogation provision must be clearly seen to be targeted at the end of protecting public health. For instance, a government order for restriction of freedom of speech which is no way related to the spread of a disease, when what is required is restriction on movement and assembly will not pass this constitutional test. Further, any attempt to violate other rights which have not been constitutionally made subject of derogation without affirming the constitutional safeguards will be unconstitutional. This may be the case of the attempts to derogate from the right to property in the instant bill.
Also, the constitution did not anticipate that excessive discretionary powers will be conferred on individuals and institutions which will result in the abuse of entrenched rights. Clause like “if it appears to X” or “if X is satisfied” which is not hinged on empirical evidence, reasonably grounds but on simple hunch and suspicion cannot be the legal foundation for violation of rights. Again, it is not permissible to unnecessarily transfer the burden of proof in the creation of an offence in a statute to the accused person when the facts sought to be established are not peculiarly within his knowledge. A law that is reasonably justifiable in a democratic society does not give powers of life and death to an individual. Derogation provisions still respect the rule of law and do not attempt to oust the jurisdiction of courts as the current exercise purports to do.
The Constitution further provides in Subsection 2 of the same section that: “An act of the National Assembly shall not be invalidated by reason only that itprovides for the taking, during periods of emergency, of measures that derogate from the provisions of Section 33 or 35 of this Constitution; but no such measures shall be taken in pursuance of any such act during any period of emergency save to the extentthat those measures are reasonably justifiable for the purpose of dealing with the situation that exists during that period of emergency: Provided that nothing in this section shall authorise any derogation from the provisions of Section 33 of this Constitution, except in respect of death resulting from acts of war or authorise any derogation from the provisions of Section 36(8) of this Constitution”. It defines emergency as a “period…during which there is in force a Proclamation of a state of emergency declared by the President in exercise of the powers conferred on him under Section 305 of this Constitution”.
Essentially, the above provisions still hold the right to life as sacrosanct unless resulting from acts of war. Offences must be clearly defined in law or subsidiary legislation and the articulation of a crime cannot just be about disobedience to orders given by a certain person which is not tied to any specific action or omission which the law has declared unacceptable. Emergency powers must be reasonable, targeted at societal ends which are in the interest of all.
Happily, the public hearing on the bill is by the corner and Nigerians of all shades will exercise the opportunity to air their views before the House concludes on the bill.
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