In a few days, a public hearing on the proposed Infectious Diseases Act originally sponsored by House Speaker Femi Gbajabiamila, will take place. After initially sailing through two readings, the proposed legislation was stopped dead in its tracks and referred to a public hearing after outcry from civil society organisations (CSOs), journalists and the Nigerian public. The main issues with the bill centred around its plagiarism from a 43 year-old Singaporean law, its draconian empowerment of the police and unelected officials in violation of the constitution and its lack of congruence with Nigeria’s administrative reality.
This public hearing will be the only opportunity that Nigerians have to deliver feedback on this bill and register their opinions about it on record. It is therefore important that all parties concerned including House members, CSOs, the media and the public understand the issues surrounding this bill and why it cannot pass in its current form if Nigeria is to remain a constitutional democracy in anything but name. What are the problems with the bill and what can be done to fix these problems before passing it?
Solving problems by creating worse problems
The big problems with the bill are the fact that it is almost entirely plagiarised from Singapore’s Infectious Diseases Act of 1977, and the fact that its wording effectively turns Nigeria into a police state under the iron fist of the Director-General of Nigeria Centre for Disease Control (NCDC) and the Health Minister. In clear contravention of the 1999 constitution, the bill empowers the police to arrest anyone at will without warrant using nothing more than their personal discretion. An individual who is suspected of having an infectious disease — which could be anything from a flu to chicken pox — can be arrested and detained indefinitely by the police.
Buildings can be expropriated and demolished under nothing but the personal discretion of the NCDC DG, and any affected individuals are not permitted to seek legal recourse, but are mandated to appeal to the unelected Health Minister whose decision is final and cannot be appealed. The NCDC DG is empowered to go after journalists and whistleblowers by making it a legal offense to withhold any document or information he wishes to obtain from absolutely anyone. Anyone who is familiar with dictatorships will immediately recognise the familiar voice of authoritarianism running through the clauses in this bill. This is not surprising because it is more than 97 percent lifted from the afore-mentioned Singaporean Act which presents its own set of problems.
Singapore, both in 1977 and till date has never been a democracy. Under the iron-fisted albeit relatively competent rule of Lee Kuan Yew, legislation like this was common. Singapore operated under the understanding that human rights were more of a helpful suggestion than a fundamental basis for society. The 2020 World Press Freedom index lists Singapore at number 158, 43 places below Nigeria at 115. This raises the obvious problem: why is a highly populated, multi-ethnic constitutional democracy which has now operated in its current form for 21 unbroken years lifting legislation from an authoritarian island state of just 5.6 million people and only two ethnic groups?
Clearly Singapore and Nigeria have almost nothing in common demographically, economically, culturally and historically. Copying legislation from Singapore without even the slightest attempt to localise and domesticate it has raised this key issue — the bill makes no mention of the role of local and state governments in the operation of the NCDC. The DG is effectively expected to become Nigeria’s sole health administrator without any input from local or state level, which is nonsensical in Nigeria’s governance context. Of course, Singapore is a tiny island state without state or local government, so such concepts cannot exist in its legislation — which then begs the question why Nigerian legislators would ever think that lifting Singaporean legislation in whole and without any attempt at localisation is in any way a good idea.
How to fix the Bill
Until recently, the perceived consensus in the global scientific community was that in fighting COVID-19, no measures were too extreme or high handed. WHO DG, Tedros Adhanom, famously remarked some months ago while praising China’s brutal lockdown of the Hubei Province that there is no such thing as an overreaction when dealing with the coronavirus. Apparently Nigeria’s legislative community appears to have taken these messages to heart a bit too much, resulting in potentially disastrous legislation like this which can end up creating a constitutional crisis if passed, with its myriad of clauses that directly contradict the 1999 constitution.
What needs to happen at this point is that whoever is drafting what will replace the current iteration of this bill will go back to the basics of what infectious diseases are and why this bill is being promulgated. In the case of virulent human-to-human pathogens like SARS COV-2 and Ebola, the basic problem is an informational one — who is carrying it, and how, when and where they get infected? How does the virus attack cells, crack gene codes and replicate itself? To this end, the solution would clearly be an expansion of testing, tracking and isolation capacity — not a mindless expansion of bureaucratic powers and the inadvertent creation of a police state.
In the case of te COVID-19 outbreak in Nigeria, what problems have been encountered and what lessons have been learned? Rather than rush to push through an ill-considered bill so as to be seen “doing something,” the more considered and impactful approach would be to wait until sufficient data and information is available to be able to sift out what exactly Nigeria’s challenges are in dealing with infectious disease outbreaks. Legislators would need to hear from frontline health workers about their challenges in accessing sufficient PPE, testing kits and other essential supplies. The law would then create a legal framework to ensure that next time, such failures do not repeat themselves.
As against life following law, the law must follow life. Waiting until after this outbreak is over to parse exactly what Nigeria’s challenges are and how to solve them legislatively is the common sense thing to do. There are no prizes for rushing through poorly-worded, dangerous and plagiarised legislation in the heat of the moment just to be seen as an effective political actor. For reference, the NCDC Act of 2018 already provides a legal basis for the existence and operation of the NCDC, and the existing Quarantine Act — dated as it may be — has done its job for now. Why the rush to introduce competing legislation that will almost inevitably end up needing a repeal someday?
During the upcoming public hearing, it is important that these points are noted and emphasised so that all parties concerned can properly understand what is at stake and reach the appropriate compromise. Nigeria’s democratic well-being may just depend on it.
