Williams ADELEWA
Within the last few weeks there has been reactions and counterreactions (mostly from the floor of the House) on the controversial Infectious Disease Bill 2020, sponsored by the Honourable Speaker of the Nigeria House of Representative, Mr. Femi Gbajabiamila and his two other appointed principal of the House Committees on Health matters; Hon. Tanko Sununu, Chairman- House Committee on Healthcare Services, Hon. Pascal Obi, Chairman- House Committee on Health Institutions.
Due to the powerful influence of the standard-bearers of the bill, it had already passed second reading on the floor of the House.
The bill which seeks to repeal the Quarantine Act of 1926, the Nigeria National Health Act (2004), National Programme on Immunisation Act (2004), and the Environmental Health Officers (Registration ETC) of 2002 had come under sever censure for undermining the composite structure of the Country’s Political system among other constitutional infractions or contradictions.
The infectious disease bill, having fall within the purview of Public Health and invariably on the concurrent list of the Constitution had also being ardently opposed by stakeholders, one of which is the Nigerian Governors Forum (NGF), the Chairman of the Forum, Dr. Kayode Fayemi, speaking for the group in his address at the public hearing was of the opinion that the bill would further takes away the powers of the constituent units of the Nigerian State, i.e. the State and Local governments respectively.
The NGF said the bill is undemocratic, adding that its provisions are also conflicting with the constitution. The Governor of the fountain of knowledge state, while canvassing against the bill during the hearing at the National Assembly, said the bill ‘gives governors scant operational space to manoeuvre’. In his words ‘This Bill takes away the only authority the governors have to take specific steps and measures in their domains during an outbreak of infectious disease.’
It is very pertinent to bring to bear that the Bill in question is been adapted from a similar law in Singapore as it is ninety-seven percent copied from the Singapore Infectious Disease Act, 1977 and scores of Nigerians have branded same as draconian and unfit for a democratic state like Nigeria as it is under the reign of a maximum ruler, Lee Kuan Yew, who operated a one-party socialist State.
The Nigerian Constitution provides for power sharing among the constitute units even though that could not absolutely pass for the definition of true federalism as being propounded by eminent political theorist, however as stated in the obiter ditum of His Lordship, Niki Jobi, JSC; in Chief Adebiyi Olafisoye v. Federal Republic of Nigeria (2004) LPELR-2553(SC):
‘Constitutions are named as federal, unitary and confederal, to mention the major ones. A federal government will mean what the constitution writers say it means. And this can be procured within the four walls of the constitution and the four walls only. Therefore, a general definition of federalism or federal government may not be the answer to the peculiar provisions of a nation’s constitution which is the fons et origo of its legal system.’
Relating from the dictum of His Lordship, it would not be out of place to assume Nigeria as a Federal state as it establishes in Section 2 (2) Constitution of the Federal Republic of Nigeria 1999 (as amended):
Nigeria shall be a Federation consisting of States and a Federal Capital Territory.
Furthermore, in Chief Adebiyi Olafisoye v. Federal Republic of Nigeria (supra) the jurist posited further that:
Ideal federalism or true federalism is different from specific or individual federal constitutions of nations, which may not be able to achieve the utopia of that ideal federalism or true federalism but which in their own sphere are called federal constitutions. I think Nigeria falls into the latter category or group. It will therefore, be wrong to propagate theories based on ideal or true federalism in a nation’s Constitution which does not admit such utopia.
The Federal System of Government as practice in Nigeria was not put into consideration in the Bill, thus there are no role(s) for other tiers of government (States and Local Governments), notably the States as a federating unit. This is more serious lacuna, recognizing the fact that Public Health is contemplated in the concurrent legislative list in the 1999 Constitution.
Conjunction with the foregoing is also Section 15 of the Bill that empowers the Director General of Nigeria Centre for Disease Control (NCDC) to issue a notice to take over a citizen’s property and declare it an isolation center without the consent and permission of the owner, Court order or the Governor.
This provision would not only be subject to a serious abuse considering the lack of impersonality or dispassionate among political/elite class but the section conflicts with the right of Governors over lands in their States under the Land Use Act, as property would be acquired in a state without the Governor’s consent. This proposed Bill cannot only be seen as being undemocratic as it has been widely adjudged but it is Vague and conflicting with existing laws enacted by the same body.
Although one cannot question the legislative competence of the National Assembly on this subject matter mostly on the Constitutional narratives adduced above, having reference to the provision of Section 4 of the extant Constitution which states as follows:
(1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.
(2) The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.
(3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States.
(4) In addition, and without prejudice to the powers conferred by subsection (2) of this section, the National Assembly shall have power to make laws with respect to the following matters, that is to say: –
(a) any matter in the Concurrent Legislative List set out in the first column of Part II of the Second Schedule to this Constitution to the extent prescribed in the second column opposite thereto; and
(b) any other matter with respect to which it is empowered to make laws in accordance with the provisions of this Constitution.
By the provisions in the Second Schedule, Part I, item 54 under the exclusive legislative list– it mentions ‘Quarantine’ but not “Public Health” or “Disease control” as the Bill portrays. However, item 68 under the same exclusive legislative list states that the National Assembly may legislate on-
‘Any matter incidental or supplementary to any matter mentioned elsewhere in the (exclusive legislative) list.’
It is imperative to note that those items elucidated on the latter are not on the concurrent list are exclusive reserve for the Federal Government and it’s reasonable to presume that the Federal law makers are not precluded from establishing a model Federal Law that may be domesticated by the Federating units (though with its inherent sub judications).
Also, it is of note that while this bill retains “Quarantine” as its theme, its contents extends beyond public health and control of diseases to ports and immigration, vaccinations/drugs, law enforcement (police) etc. which are all exclusive matters.
It is susceptible to logic that this propose legislation covers a wide spectrum of endeavors in the fight against the present and perhaps future diseases in accordance with the law ‘as it is’ (as against how ‘it ought to be’), the House neither overstep its legislative jurisdiction nor assume to purportedly shut out the component units of Nigerian Federal state (though exposes the parliamentarian laziness of the Bill sponsors by copiously coping verbatim laws of people without any resemblance of culture or needs in comparison to ours) but lend credence to the long agitation for a constitution that will reflect what many tagged ‘true federalism’- such that would give States and Local governments more power to determine its own fate rather than an impose laws from the centre (Federal government) that seldom consider the peculiarity of the Constituent units.
The Powers of the Governors as provided within the context of the presented Quarantine Act to take steps in coming up with Executive Orders in times of Public Heath emergencies as presently witness in this era of pandemic is sought to be hijacked through the propose Bill. Thus, State Governors would have no role and will merely be at the mercy of the Director General, Nigeria Centre for Disease Control (NCDC) and the Minister for health.
This is abnormal and would only propel doom if this Bill is passed to law. All State Governors are today relying on the Quarantine Act to come up with Executive Orders to manage the COVID-19 peculiar situations in their respective States.
If this power is removed, it means that the DG, NCDC has to micro- manage all the states and Local government areas in the country in times of health crises (as we have now). This will be most inefficient as we currently undergo in term of policing that would be have been decentralized or room for community policing.
