Yesterday April 28, 2020, a piece of draft legislation that could permanently change the experience of Nigeria as we know it was quietly transmitted to members of the House of Representatives for consideration. On the surface, it is a somewhat innocuous bill – possibly even praiseworthy and necessary, but as has become the case in recent times, a closer examination of this bill reveals that it potentially creates a lot more problems than it purports to solve.
The Infectious Diseases Act is supposed to create a legal framework for the federal government to manage the special circumstances surrounding infectious disease outbreaks like the ongoing COVID-19 pandemic, which at last count had claimed 44 lives across Nigeria.
Sponsored by House Speaker Femi Gbajabiamila, what the bill is supposed to do is provide an updated legislative basis for the government’s anti-pandemic efforts, replacing the National Quarantine Act of 2004, which many have identified as the cause of least some of the FG’s initial flat-footed response to COVID-19.
In reality, it potentially opens the door to a new set of legal and constitutional quagmires.
Also, it is almost entirely – word for word – plagiarised from the Singapore Infectious Diseases Act 1977.
Director-General or Unelected Dictator?
The first thing that quickly becomes clear about the bill is that it is not so much a bill about helping to save Nigerian lives from disease outbreaks as it is one about helping the Director General of the Nigerian Centre for Disease Control (NCDC) and the Minister of Health become disproportionately and unjustifiably powerful.
Throughout the 44-page document, the term “Director General” appears 134 times – 10 more times than the word “disease.”
At first the repeated emphasis on granting powers to the person of the NCDC DG appear justified by Sections 7 and 12, which give the DG the power to require that corpses of those who die of suspicious symptoms without confirmation must be properly autopsied, and that infected corpses must be disposed of in such a way as not to endanger public safety. Such clauses would – at least on paper – provide a resolution to scenarios such as that currently happening in Kano State, where for religious reasons, corpses of people who died of symptoms similar to COVID-19 victims are being hurriedly buried without autopsies and under unsafe circumstances.
As with any other piece of legislation in Nigeria of course, whether it will be interpreted as superior to the Sharia penal code system of 12 Northern states and enforced accordingly, is anyone’s guess.
The real problems with this bill start becoming clear from Section 15, which states in part,
“The Minister may, for the purpose of preventing the spread or possible outbreak of an infectious disease, by notification in the Gazette declare any premises to be an isolation area…A person who leaves or attempts to leave or is suspected of having left an isolation area in contravention of an order under subsection (3) may be arrested without warrant by any police officer, or by any Health Officer authorised in writing in that behalf by the Director General.”
The problematic phrase “without warrant,” which gives law enforcement a free hand to arrest and detain without any proof of guilt whatsoever – and effectively removes a Nigerian citizen’s constitutionally guaranteed right to assumed innocence and fair hearing – appears 14 different times in this bill. In the instance above, law enforcement officials are empowered to detain Nigerians on the mere suspicion of having been in a certain place, without the need for a single shred of evidence to back up their claims. In other words, Nigeria’s famously disciplined, well-behaved and incorruptible police and paramilitary forces will be legally empowered to stop anyone anywhere, suspect them of having been in an isolation area, and detain them.
The ambiguously-worded clause immediately after gives even more cause for concern: “A Health Officer or a police officer may take any action that is necessary to give effect to an order under subsection 3.” What does “action that is necessary” mean exactly? Does it mean indiscriminate stop-and-search actions? Does it mean shooting people “accidentally” as the lower ranks of the police are in the habit of doing? What are the real world Nigerian implications of giving sweeping, ambiguously-worded powers to poorly trained, power-drunk law enforcement officials with military grade firearms?
It gets worse. A lot worse actually.
Section 20 ends the right to free association through yet another sweeping, clumsily-worded clause that can be interpreted in just about any way whatsoever by the DG it empowers to prevent any kind of meting whatsoever as long as he determines in his subjective judgment that it somehow “increases the spread of an infectious disease.”
In practice, what this means is that the day a non-scientist or politically-motivated individual becomes DG, an unelected bureaucrat will then have the power to crack down on anything from political opposition meetings to anti-government protests whether there is a disease outbreak or not. The only condition is that the DG must find the gathering to be dangerous in his opinion. Since when was a right that appears on Page 1 of the 1999 constitution subject to the personal whims of an unelected public office holder?
Even more significantly, why is it the case that once of the most controversial provisions of the now-iced Social Media Bill has found its way into a bill about managing infectious diseases? In that bill, an unelected bureaucrat was given the sole power to hear legal appeals that must be submitted within a specific time period. Complainants were not entitled to hearing in a court, and the bureaucrat’s decision was final. What is that abominable clause doing in a bill that is supposed to help Nigerians survive infectious disease outbreaks? What is this really about?
Still it gets worse.
According to Section 24, police officers now have the power to “apprehend and take” anyone in any public location who is “suffering from an infectious disease.” A sore throat is an infectious disease. The common cold is an infectious disease. Does this clause mean that anyone who coughs in the general vicinity of a police officer stands to be arrested on suspicion of “having an infectious disease?” Why do police officers who are not trained medical personnel get to make the judgment about who has an “infectious disease” or not?
Somehow it still gets worse.
Point (e) under Section 55 lays out the framework for what is blatantly an assault on journalists and whistleblowers. The clause requires any person to provide any book, document, correspondence or information requested by the DG and it also gives the DG unrestricted power to enter and search any premises without the need for small matters like court orders. In other words, if the DG, his boss or any of his colleagues in office suspect that a journalist or whistleblower is about to go public with embarrassing information, there is now a legal basis for state-sanctioned thuggery to ensure that they are silenced.
For good measure, this is reiterated in section 56.
Section 58 contains possibly the worst clause in the entire document. Here, it is expressly stated that any police officer is empowered to arrest anyone without a warrant as long as “he has reason to believe…” In other words, the burden of proof is now on Nigerian citizens. We will all become guilty until proven innocent, which is yet another direct contravention of the 1999 constitution.
The final coup-de-grace appears in Section 71 where it is stated that the DG and his enforcers in the police and paramilitary forces can never be held accountable for what they use these powers to do. The section reads: “No liability shall lie personally against the Director-General, any Health Officer, any Port Health Officer, any police officer or any authorised person who, acting in good faith and with reasonable care, does or omits to do anything in the execution or purported execution of this Act.”
Policy Plagiarism Reveals Insincerity at Bill’s Core
As mentioned at the outset, this bill is ripped off almost word for word from the Singapore Infectious Diseases Act of 1977. This could go some way to explaining why it is worded in such a combative and aggressive manner that takes almost zero notice of the assumed rights of citizens. Singapore at the time, was a fiercely authoritarian single party dictatorship led by Lee Kuan Yew. The fact that the existence of separation of powers and democratic freedoms exist in an electoral democracy like Nigeria appears completely lost on whoever Xeroxed the Singaporean document.
It goes on and on like this for practically all 44 pages (the Singaporean original legislation has 43 pages). It is page after page of authoritarianism from southeast Asia with “Singapore” occasionally Tippexed out and “Nigeria” scrawled over it. In fact when you run the draft legislation through a plagiarism checker, Nigeria’s proposed legislation has an originality score of just 2 percent against the Singaporean document it was plagiarised from.
It might be tempting to see the funny side of this and chalk it up to the usual intellectual vacuity that Nigeria’s government is renowned for. In a country that is currently led by a party that plagiarised its entire manifesto in the most recent elections – famously leaving in a reference to “American security” in the poorly-edited document – policymakers phoning it in by copying other people’s work is hardly strange news. After all the party had its plagiarised manifesto publicly exposed – and it still won its election.
In this case however, someone specifically sought out an obnoxiously worded Infectious Diseases Act from a notoriously dictatorial country and did a Ctrl+G (find and replace) function on it to change the term “director” to “Director General” without making much of an attempt to change anything else. This indicates that the only goal behind this proposed legislation is specifically to expand the spectre of unaccountable, unelected dictatorship in Nigeria, and in the process remake the country as we know it in the authoritarian image of Singapore.
Just with none of the infrastructure and economic growth.
This means that this is not mere laziness or lack of imagination, though those are certainly part of the story. The bill is part of a directed and consistent campaign that started in 2015 to reduce the civil rights and liberties of Nigerians, especially their right to court hearings and their freedom of speech. Hiding under the cloak of yet another piece of boring, plagiarised legislation, there is a concerted and unmistakable effort to turn the clock back on Nigeria’s democracy.
Analysis of Draft Bill
A few months ago, two pieces of legislation (the so-called ‘Hate Speech’ and ‘Social media’ bills) created an uproar when it emerged that if passed, their clauses would effectively end Nigerian civil rights as we know them. Due to the sustained public pushback, the bills were put on ice until such a time as their sponsors could attempt once again to bypass public outrage and sneak them into law. This bill is that attempt.
Not only will this bill effectively end the constitutionally guaranteed freedom of movement and freedom of association under the fraudulent guise of “public health,” this bill also goes after property rights, giving an unelected DG and his unelected boss at the Health Ministry power to commandeer and expropriate private property with brazen audacity and on a scale that has not been seen in Nigeria since the days of military dictatorship.
If this bill is passed, journalists and whistleblowers will also be endangered, as it empowers the NCDC DG and health minister to use law enforcements to seize whatever information is deemed important in fighting an infectious disease. Information such as, for example the sources I exchanged correspondence with before recently publishing a story on the Health Ministry’s lack of preparedness for the COVID-19 pandemic, which the Ministry found embarrassing. If this bill is passed, the act of writing and publishing such stories can legally be interpreted as an offense, and journalists will then be required to compromise the anonymity and personal safety of their sources, which would effectively end whatever remains of objective public interest journalism in Nigeria.
Most importantly, this bill automatically criminalises every Nigerian going about their legitimate daily business by making them guilty until pronounced innocent by the subjective judgment of an unelected DG – instead of a court. Under the guise of fighting infectious diseases, this bill will reintroduce mass surveillance to Nigeria and effectively end the rights to assumed innocence, fair hearing before a competent court of law and habeas corpus – the trifecta of legal principles that prevent Executive overreach and provide a framework for the freedoms inherent in democratic countries. Instead, Nigeria will become a stop-and-search police state with subjective, warrantless arrests, zero recourse to fair hearing in court, indefinite detention and legal appeals being heard by unelected civil dictators instead of qualified judges.
Giving his opinion of the bill, human rights activist and Executive Director, Adopt A Goal for Development Initiative, Ariyo-Dare Atoye said:
“The infectious disease act is more of a punitive bill than a draft law for addressing infectious diseases. This bill tends to confer absolute powers and illegal authorities on a Director-General, including power to “arrest without warrant.” See section 58. The bill was written with a mindset that is both colonial and autocratic. The only thing the drafter of the bill failed to do out of “shame” is not to have “as appropriate” in the context of its overreach – used the nomenclature of Governor-General for the DG. See sections 20, 25 and other punitive provisions in the bill
Not done with its scrambling for absolute control, the bill also confers an obnoxious power on the Supervising Minister in Section 20 (5) “Any person who is aggrieved by any order of the Director General under subsection (1) may, within 7 days from the date of the order, appeal to the Minister whose decision shall be final.” This is an usurpation of the powers of the Judiciary, especially the Supreme Court which has the final authority of law in the country.
It will be too early to call for the death of the bill even though it is terribly defective with several punitive measures that give the DG the powers to act like a colonial Czar. However, I will like to appeal to Nigerians to let us critically review and appraise this draft law and see whether it could be exorcised of its illegal powers and provisions. The bill bears the signature of a draft that originated from a communist republic.”
You can read the proposed Infectious Diseases Act here.