By Ikechukwu Nnochiri
The court, in a judgement that was delivered by Justice Ijeoma Ojukwu, said it lacked the jurisdiction to strike down a Bill that is yet to be passed into law.
Justice Ojukwu held that the judicial powers of the court could only be exercised in respect of a law that has been enacted, stressing that Melaye’s suit is non-justiceable since the National Assembly is still deliberating on the Bill.
Relying on the doctrine of separation of powers, the court said it could not at this stage, determine whether contents of the Bill would amount to gross violation of fundamental rights of the Applicant.
However, the court noted that concerns Melaye raised in the suit were “grave”, saying “it behoves on the Respondents to accord the Bill a second look”.
Melaye, who hitherto represented Kogi West in the Senate, had in his fundamental rights enforcement suit marked FHC/ABJ/CS/463/2020, maintained that several portions of the proposed law which is intended to amend the Quarantine Act of 1926, are unconstitutional, illegal, and wrongful, saying they would amount to flagrant abuse of his fundamental rights.
He told the court that the Bill which was sponsored by the Speaker of the House of Reps, is seeking to empower the Federal Government to convert any property in the country, including private property, to isolation centres for infectious disease patients.
The Applicant contended that the Bill was further couched in a way that FG could upon mere suspicion that a person is infected with an infectious disease, arrest and detain the person for as long as necessary, among others.
Cited as Respondents in the suit FHC/ABJ/CS/463/2020, are the Clerk of the National Assembly, the Clerk of the House of Representatives, the Speaker of the House of Representatives, Femi Gbajabiamila, the Attorney-General of the Federation, Mr Abubakar Malami, and the Inspector-General of Police, Mr Mohammed Adamu.
Meanwhile, before the judgement was delivered, the court, struck out the name of the IGP from the matter, noting that the suit did not disclose any reasonable cause of action against him.
Melaye had in a supporting affidavit he attached to the suit, urged the court to issue an order of injunction to restrain the Respondents from further proceeding with, or continuing with further debates with respect to the Bill.
He averred: “That I know as a matter of fact that section 3(8) of the Bill which empowers the Director-General of the National Center for Disease Control, by himself or any officer under him or a police officer on his direction, to enter into any premises or gathering of people in an area declared by the president as a public health restricted zone, without a warrant, is clearly in breach of my fundamental rights to freedom of assembly and right to liberty of my human person.
“That I also know as a matter of fact that the said provisions conflict to my rights to fair hearing and is also in breach of the twin pillars of natural justice.
“That I know as a matter of fact that section 5(3) of the Bill, which empowers the DG of NCDC, to compel any person suspected by him, of having an infectious disease, to take a medical examination or any test the Director-General of the National Center for Disease Control, prescribes and allow the DG to forcefully take blood or other samples from the person for purposes of public health surveillance, is in breach and or likely to breach my fundamental rights to privacy and right to respect of the dignity of my human person.
“That I also know as a matter of fact, that this section, like the other provisions of this Bill, has nothing to do with whether there is a public health emergency or not. That the said section is meant to be a permanent provision of the law, exercisable at any time at the whims of the DG, NCDC, in contravention of my fundamental human rights.
“That I know as a matter of fact that section 8 of the said Bill, which makes it obligatory for health personnel treating anybody to release to the DG of NCDC, the patient’s medical details and records, is a gross breach of my fundamental rights to dignity of human person and privacy.
“That I also know as a matter of fact that section 13 of the said Bill, which empowers the DG of NCDC, to upon mere suspicion, that a person is infected with an infectious disease, and or recovered from an infectious disease, to arrest the person and detain him for as long as he deems necessary without a warrant or court order at any isolation centre of his choice breaches my fundamental rights liberty and dignity of human person.
“That I know as a matter of fact that section 15 of the Bill, which empowers the Minister of Health, to declare any premises whether public or private as an isolation centre without the payment of compensation, infringes or is likely to infringe upon my right to own properties in Nigeria.
“That I also know as a matter of fact that sections 16,17 and 19 of the Bill, by which Director-General of NCDC, can declare any building or gathering as overcrowded, and to without any court order or warrant, enter the premises using such force as he deems necessary to disperse the group and close the building, amount to infringement or is likely to infringe upon my rights to freedom of association and privacy.
“That I also know as a matter of fact that section 30 of the said Bill, which makes vaccination, for no known specific disease, compulsory without my consent when I am either leaving or arriving in Nigeria, is likely to infringe upon my fundamental rights to privacy and dignity of the human person as provided for in sections 34 and 37 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
“That I know as a matter of fact that section 47 of the Bill, which empowers the DG of NCDC, to direct compulsory vaccination in an outbreak or a suspected outbreak is in breach of, and or likely to breach my fundamental rights to dignity of the human person and privacy”.
He urged the court through his lawyer, Nkem Okoro, to uphold the suit and grant all the reliefs.
Among other things, he prayed for, “An order of injunction restraining the Respondents, whether, by themselves, their agents, employees, servants, privies and or howsoever called, from further proceeding with, or continuing with further debates with respect to sections 3(8),5(3),6,8,13,15,16,17,19,23,30 and 47 of the Control of Infectious Diseases Bill 2020, which provisions breaches and or are likely to breach the fundamental rights of the Applicant as provided for sections 33, 34,35,37,38 and 40 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and Articles 4, 6,7,10,11,12 and 14 of the African Charter on Human and Peoples’ Rights Ratification and Enforcement) Act Cap A9 Laws of the Federation of Nigeria, 2004, Articles 2(3),7,8,9,12,17,21 and 22 of The International Covenant On Civil And Political Rights,1976, Articles 3,5,8,9,10,12,13,17 and 20 Of the Universal Declaration Of Human Rights,1948”.
Though the 1st and 2nd Respondents did not file any process in the matter, the 3rd to 5th Respondents, through their lawyers, Kayode Ajulo (for Speaker, Gbajabiamila), M. L. Shiru (for the AGF) and Kehinde Oluwole (for the IGP), prayed the court to dismiss the suit they maintained was premature.
In their separate preliminary objections, the Respondents, argued that the plaintiff lacked the locus standi to invoke the court’s jurisdiction over a law that is still inchoate.
They contended that a Bill that is yet to become a Law could not have breached any of the plaintiff’s constitutional right, adding that a Bill undergoing the process of passage could not be subjected to litigation.
More so, they argued that based on the doctrine of separation of power, the judiciary cannot interfere in the legislative business of the National Assembly.
The Respondents therefore urged the court to dismiss the suit with cost for being frivolous and time-wasting, maintaining that the Bill would still be subjected to public hearing where the Applicant would have the opportunity to ventilate his concerns.
According to them, the Applicant failed to show how a Bill that has not been enacted into law violated his fundamental rights.
The court upheld their preliminary objections and dismissed the suit on Tuesday.