By Musa Sunusi Ahmad
HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) a prominent Civil Rights Advocacy group is hereby asking The National Assembly to throw away the bill being proposed to repeal The Quarantine Act of 1926 because it is a toxic, poisonous and unconstitutional piece of legislation which will turn The common people of Nigeria into mechanical zombies and guinea pigs of vaccine manufacturers funded by the American Billionaire Mr. Bill Gates. That bill is worst than a poisonous chalice. The following are our observations.
The Bill essentially seeks to repeal the Quarantine Act, 1926. The Act came into force on April 27, 1926 and empowers the President or Governor of a State to make regulation as to quarantine in respect of and for prevention of dangerous infectious diseases. It is worthy of note that Nigeria already has a Centre for Disease Control and Prevention (Establishment) Act, 2018 (simply referred to as the NCDC Act). The Nigeria Centre for Disease Control was created in 2011 and operated without an enabling legislation until barely a year and half ago precisely on Tuesday November 13, 2018 when the present President of Nigeria assented to the Bill for the NCDC Act which places on the NCDC wide range responsibilities as stated in section 1 of the Act.
The responsibilities include protecting Nigerians from communicable diseases of public health importance, maintaining high state of alertness to detect and respond to disease outbreak, developing and coordinating capabilities, measures and activities to control outbreaks and mitigate the health impact of public health disasters, etc. The NCDC by Section 3 is also saddled with the enormous task of coordinating effort to prevent, detect, control and monitor diseases and granted wide powers in that regard under section 4 of the Act. These are besides other sundry matters which the extant laws cover. So one wonders whether there is need for the present bill especially at the moment where the need of the nation is more economic than legal framework, more so that Bill introduces some very controversial issues which are addressed shortly.
Matters arising from the Bill
Some outstanding provisions of the Bill relate basically to prohibition of assembly/association and movement in certain circumstances, compulsory vaccination, and conferring of overbearing power on the Director General (DG) of the NCDC as well over criminalization, among others.
On prohibition of assembly and association, section 19 provides thus:
“Where it appears to the Director General that the holding of any meeting, gathering or any public entertainment is likely to increase the spread of any infectious disease, the Director General may by order prohibit or restrict, subject to such conditions as he may think fit, for a period not exceeding 14 days, the meeting, gathering or public entertainment in any place.”
Besides that this power conferred on the Director General to make order under the foregoing provisions could be renewed from time to time, it is a criminal offence under sub section 3 to violate such order.
The foregoing provision of the Bill would have section 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which guarantees the right to freedom of peaceful assembly and association to contend with. The section 40 provides thus:
Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests;
Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the on the Independent National Electoral Commission in respect political parties to which Commission does not accord recognition.”
The only exception to the freedom of assembly rule entrenched in the Constitution is the power given to INEC in respect of political parties and no more. It means the NCDC by the Constitution cannot be empowered by an Act to limit that right. A provision of the Public Order Act similar to section 19 of the Bill came for interpretation in the case All Nigeria Peoples Party & Or v. Inspector General of Police (2006) CHR 181 where a gathering of the plaintiffs in that case was disrupted by the police for failure to obtain police permit and in an action against the action of the police, the Court held thus:
“The gist of the provision of the Act is that the Governor of each State is empowered to direct the conduct of all assemblies, meetings and processions on public roads or places of public resort in the state and prescribe the route by which and times at which the convening or collecting any assembly or meeting or of forming a procession in any public resort must apply and obtain the license of the Governor. Persons aggrieved by the decision of the Commissioner of police may appeal to the Governor and the decision of the Governor shall be final and no further appeal hall lie therefrom.
In my view, the provision in section 40 of the Constitution is clear, direct and unambiguous. It is formulated and designed to confer on every person the right to assemble freely and associate with other persons. I am therefore persuaded by the argument of Mr Falana that by the combined effect of sections 39 and 40 of the 1999 Constitution as well as Article 11 of the African Charter on Human and Peoples’ Rights, the right to assemble freely cannot be violated without violating the fundamental right to peaceful assembly and association. I agree with Mr Falana that violation can only be done by the procedure permitted by law, under section 45 of the Constitution, in which case there must be a state of emergency properly declared before these rights can be violated.
The Public Order Act so far as it affects the right of citizens to assemble freely and associate with others, the sum of which is the right to hold rallies or processions or demonstration is an aberration to a democratic society. It is inconsistent with the provisions of the 1999 Constitution. In particular, sections 1(2), (3),(4), (5) and (6), 2, 3, and 4 are inconsistent with the fundamental rights provisions in the 1999 Constitution and to the extent of their inconsistency, they are void. I hereby so declare.”
Another issue which the Bill seeks to legalize is compulsory vaccination against infectious diseases. Section 47 of the bill requires some form of vaccination or prophylaxis not only in case of an outbreak of infectious diseases but also in the case of an expected outbreak. Section 48 requires a record of all vaccinated persons to be kept and to crown it all, section 51 makes it a criminal offence for failure to comply with part 4 of the Bill which deals with compulsory vaccination or prophylaxis in case of or against an outbreak of infectious diseases. Section 30 also requires vaccination as a condition for international travel in and out of Nigeria. Section 46 (1) mandates the parents of every child to ensure the vaccination of their children against the diseases. It provides thus:
(1)The parent or guardian of every child in Nigeria shall ensure that the child is vaccinated against the diseases set out in the Fourth Schedule.
(2)The Registrar of Births and Deaths shall, immediately after the registration of the birth of a child, issue to the parent or guardian of the child a notice requiring the child to be vaccinated against the diseases to which this section applies.
It must be noted first and foremost that the human body is inviolable and every human being has inherently inalienable right to determine what their body accepts or otherwise. It is upon this principle that a lot other legal principles regarding the humans were enunciated including the tort of battery. In the old English case of Cole v. Turner  6 Mod Rep 149 the Court per Holt C.J held thus:
“The least touching of another in anger is a battery. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. If any of them use violence against the other, to force his way in rude inordinate manner, it is battery; or any struggle about the passage, to that degree as may do hurt, is a battery.” (Emphasis supplied)
The concept of “anger” or “violence” as used by the Court is simply to signify disrespect for or lack of consent for the act which was not an accident. This is the foundation for the fundamental rights to the dignity of the human person provide in Section 34 of the Constitution which prohibits any “inhuman or degrading treatment”. It is for the enjoyment of this basic right that corollary rights of liberty, freedom of movement and freedom of thought, conscience and religion are all guaranteed. Section 35(1)(a)which provides for personal liberty which can only be derogated, as related to the case at hand, “in case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community”.
In another English case of Sidaway v. Board of Governors, Bethlem Royal Hospital (1985) 1 ALLER 643 HLR the Court per Lord Scarman stated that:
“the Court should not allow medical opinions on what is best for the patient to override the patient’s right to decide for himself whether he will submit to treatment offered him”
The subject of whether a person could be administered medical treatment without their consent came up in the case of Medical and Dental Practitioners Disciplinary Tribunal v. OKonkwo (2001) FWLR (Pt.44) 542 and the Nigerian Supreme Court per Uwaifo JSC held thus:
“I am completely satisfied that under normal circumstances, no medical doctor can forcibly proceed to apply treatment to a patient of full and sane faculty without the patient’s consent, particularly if that treatment is of radical nature … So, the doctor must ensure that there is valid consent and that he does nothing that will amount to the trespass to the patient. Secondly, he must exercise a duty of care to advise the patient of the risk involved in contemplated treatment and the consequences of his refusal to give consent. Once the patient has made his choice, the doctor or hospital cannot overrule such a choice… the patient’s right to object to medical treatment is founded on the fundamental right to privacy and right to freedom of thought and religion. The sum total of these rights is that an individual should be left alone to choose a course of life.”
The practice of compulsory vaccination runs contrary to medical ethics. Rule 19 of the Medical Ethics in Nigeria, 2008 states that an essential element of good medical practice is the recognition by the attending physician or dental surgeon, of the inherent right of the patient to his body and life. This is in line with Section 23 of the National Health Act provides thus:
“Every health care provider shall give a user relevant his state of health and necessary treatment relating thereto including –
a. the user’s health status except in circumstances where there is substantial evidence that the disclosure of the user’s health status would be contrary to the best interest of the user;
b. the range of diagnostic procedures and treatment options generally available to the user;
c. the benefits, risks, costs and consequences generally associated with each option; and
d. the user’s right to refuse health services and explain the implications, risks or obligations of such refusal.
The healthcare provider concerned shall, where possible, inform the user in a language that the user understands and, in a manner, which takes into account the user’s level of literacy.”
The other issue which arises out of section 30 of the Bill is prohibition of movement in and out of Nigeria in the absence of production of a vaccination certificate. It is important to reproduce the relevant part of Section 30(1) of the Bill at this point. It provides thus:
“Every person on an international voyage whether leaving or arriving in Nigeria shall —
a. have undergone vaccination or other prophylaxis against all or any of the diseases as may be prescribed; and
b. produce valid international certificates of vaccination or other prophylaxis to
The foregoing section of the Bill violates Section 41 of the Constitution which provides for right to freedom of movement in the following words:
“1)every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in part thereof, and no citizen o Nigeria shall be expelled from Nigeria or refused entry thereto or exit therefrom.
(2)nothing in subsection (10 of this section shall invalidate any law that is reasonably justifiable in a democratic society –
(a) imposing restrictions on the residence or movement of any person who has committed or reasonably suspected to have committed a criminal offence in order to prevent him from leaving Nigeria; or
(b)providing for removal of any person from Nigeria to any other country to –
(i) be tried outside Nigeria for any criminal offence, or
(ii) undergo imprisonment outside Nigeria in execution of the sentence of a court of law in respect of a criminal offence of which he has be found guilty.”
Moreover the Bill gives so much power to the Director General of the NCDC who is merely an appointee of the President and not an elected officer directly accountable to the people. Under section 16, he can order abatement of overcrowding in a building or even order closure of premises. He also has powers to prohibit gatherings, or association etc under section 19. Under section 39 he is the approving authority for the importation of vectors. He is also empowered under section 44 of the Bill to order the examination of persons coming into Nigeria just like he has powers under section 47 to order vaccination, postponement or exemption of anyone from vaccination. Under section 61 headed “Extraordinary powers in relation to emergency measures”, he has unlimited power to take any emergency measures which are not defined, yet it is a criminal offence to violate of those measures. This bill is actually the making of a monster in the person of the Director General.
One last area of this bill which must not be ignored is the criminalizing of any and every violation of any order or directive of the DG without consideration of the underlying or inherent factors or peculiar realities of our failed system which predispose people to breach or make observance of those orders or directive impracticable as is being currently experienced in Nigeria. If in the present situation without a draconian legislation such as this, Nigerians were brutalized, had their properties destroyed and killed, one wonders what would happen if this kind of bill sees the light of day. It is a Bill which indirectly seeks to worsen the human rights violation in Nigeria.
The Bill also discriminates against persons who have already recovered from an infectious disease by creating a legal stigmatization. For instance section 13(2) provides for isolation of several persons including persons who have already recovered from an infectious disease.
It is apt at this juncture to note that one is not unmindful of the provisions of section 45 of the Constitution which provides that nothing in sections 37, 38, 40 and 41 of the Constitution shall invalidate any law that is “reasonably justifiable in a democratic society” in the interest of defence, public safety, public order, public morality or public health; or for the purpose of protecting the rights and freedom of other persons. The operative words of the section are “reasonably justifiable in a democratic society”. A bill that seeks to take away the very core of a man’s being which is freewill and also impose the will of a few powerful elites upon not only majority of Nigerians but also of the global medical community cannot pass the test of being reasonably justifiable in a democratic society.
In legislative drafting, it is a cardinal rule to analyze a proposed law or bill against the principle of practicability. The bill disregards the right of the human being to freewill and best global medical practices and protocols; this particularly makes it difficult to implement. The bill also looks only at followership problem in the case of a disease outbreak and completely fails to place any responsibility squarely on the part of government towards ensuring that predisposing factors to violating quarantine or isolation or certain restriction like lockdown are addressed; an issue which is most critical to the success of the containment of any outbreak of an infectious disease especially such as would require the interruption of normal business and survival means. It also does not make the NCDC accountable to people for instance providing a time frame within which persons who are quarantined or isolated have to be attended to or conditions of quarantine or isolation. In the light of the foregoing, it is safer to say the extant laws on the subject as earlier listed are sufficient to regulate any outbreak of infectious diseases in Nigeria.
COMRADE EMMANUEL ONWUBIKO;
NATIONAL COORDINATOR; HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA); www.huriwanigeria.com;