Mbah Chidiebere Simeon-Nigerian Judiciary:Matters Arising.

 Query: There were uproars on social media when the Legislature wanted to pass the NCDC act neglecting the procedures provided for such.Do you think that an emergency situation gives them the right to do so?

Mbah Simon Chidiebere: The Bill amongst others empowered the Director-General of the NCDC to be in charge of the administration of the new Act, notification of prescribed infectious diseases, surveillance, medical examination and treatment, vaccination post-mortem examination, destruction and disposal of infected animals, food and water, isolation of certain persons,

prohibition or restriction of meetings, gatherings and public entertainments as well as control of occupation, trade or business. The Director-General may, subject to such conditions or restrictions as he thinks fit, appoint any public officer, officer of any statutory body; or employee of a prescribed institution, to be a Health Officer for the purpose of this Act or any particular provision of this Act.

The Director-General may, subject to such conditions or restrictions as he thinks fit, delegate to any Health Officer all or any of the powers conferred on him by this Act. Every medical practitioner who has reason to believe or suspect that any person attended or treated by him is suffering from a prescribed infectious disease or is a carrier of that disease shall notify the Director-General within the prescribed time and in such form or manner as the Director-General may require.

Another provision of the Bill that particularly generated serious condemnation is the power to order certain persons to undergo vaccination or other prophylaxis. It stated that: “In an outbreak or a suspected outbreak of any infectious disease in any area in Nigeria, the Director General may by order direct any person or class of persons not protected or vaccinated against the disease to undergo vaccination or other prophylaxis within such period as may be specified in the order”

Opposing the Bill, a Veteran Columnist Tola Adeniyi called on the entire Nigerian Media, Civil Societies, Traditional Institutions, Labour Unions and the Intelligentsia to rise up with one Voice and condemn the imminent passing of the insidious Bill that will force vaccination down the throats of all Nigerians.

The Infectious Disease Control Bill received lot of criticisms on the floor of the House too. Opposing the Bill after presentation by Gbajabiamila, Sergius Ogun (PDP, Edo) urged the House to think twice and avoid giving so much power to the NCDC to solely manage infectious diseases in the country.

Abonta said: “We are all aware of what is awash in the social media. We need a Bill for control or prevention of disease. What I am trying to say is we should not because of what we are trying to do make big error. If we are going to do away with public hearing, then we must seek for direction and not speed.” Despite these criticisms, the Senate also initiated the same Bill with a name, ‘National Health Emergency Bill, 2020’, sponsored by the Chairman, Senate Committee on Primary Healthcare and Communicable Diseases, Chukwuka Utazi (PDP, Enugu).

But soon after the Bill was read for the first time, the former Deputy President of the Senate, Ike Ekweremadu (PDP, Enugu) led opposition against it.Ekweremadu, who under Order 14(1) of the Senate Standing Orders as Amended, demanded for the draft copy of the Bill or in gazetted form, insisting that the content of the bill must be made open before subjecting it to any consideration.

He argued that his privileges and those of other senators would be breached if details of the contents were not made available to them before it is given further legislative consideration. “In line with Order 14(1), which has to deal with privileges, as one of the serving senators, I move that draft copies of the bill should be made available before any other legislative action is taken on it. This is very important because it would not augur well for the Senate to follow the same route with the House of Representatives where a controversial Bill on Control of Infectious Diseases was passed for first and second reading last week,” Ekweremadu maintained.

Query: Do you think that China is liable to the world, or most importantly Nigeria for the damages caused by their ineptitude in the control of Corona virus which is believed to have started in China?

Mbah Simon Chidiebere: A State is obliged under article 5 of IHR to develop, strengthen, and maintain public health infrastructure which will help in detecting, monitoring, reporting, and notifying the events of the global health crises.

A novel influenza-like illness was found in the body of workers and customers of the Wuhan city’s Huanan Seafood Wholesale Market in the mid-December 2019. On 30th December Li Wenliang, an ophthalmologist, at the Wuhan Central Hospital, revealed the information online. Although Wuhan public health authorities solicited information about the spreading of “pneumonia or unclear cause”, it suppressed Li Wenliang’s alarm on the Convid19. Many medical professionals and journalists who tried to disclose information about nConvid19 were silenced and detained by the Chinese authorities. On December 31st, the Wuhan Municipal Health Commission wrongly claimed that there is no human to human transmission of Covid19.

Furthermore, the Commission described it as seasonal flu which is preventable and controllable. Till 14th February, China waited to disclose that around 1700 healthcare workers have been found positive of Covid19. It is more than apparent that Chinese government evidently suppressed and withheld the important public health information for almost two months. This may conclude that China intentionally as well as deliberately failed to communicate information with WHO in the event of PHEIC.

China’s alleged willful and intentional failure to share information expeditiously with WHO in the event of PHEIC in accordance with IHR constitutes breach of international obligations under article 12 of the Draft Articles. Even China is responsible for article 14 for the continuing breach of obligation. A combined reading of both articles reveals that a State is in breach of international obligation when its act or a continuing act is not in conformity with the obligation imposed on it.

A study at the University of Southampton revealed that timely intervention one, two, or three weeks earlier in the crisis could have reduced the cases by 66%, 86%, and 95% respectively. Thus, had China intervened responsibly and timely, the number of people affected could have been reduced. The State is under obligation to make full reparation for both material and moral injury caused by its wrongful acts under article 31. The ICJ in the Corfu Chanel case (1949) held that no State might knowingly allow its territory to be used for acts contrary to the rights of the other States. Simply speaking, China is under obligation that individuals within its territory do not cause harm to the rights of the other States.

Taking a State to the ICJ or any other international tribunal is a herculean task before an aggrieved State since as pointed out above that the international adjudication is consent-based. It is highly unlikely that China would submit the dispute before an international forum. The challenge is more painstaking when the perpetrator State is powerful and influential militarily and diplomatically.

One must not forget that China holds permanent membership of the UN Security Council, which enables China to invoke veto power to block events once its interest is at stake. This is what P5 members of the UN Security Council often does (did) as revealed by history of UN. Even if China agrees or the ICJ finds jurisdiction over the dispute and finds China responsible for nCovid19 outbreak, the contest will  still be there in implementation of the judgment. The decisions rendered by the ICJ shall be obeyed willingly by the disputant parties. The UN Security Council as a custodian of world peace plays a vital role in the implementation procedure of the ICJ decisions.

Article 94 provides that in case of failure or non fulfilment of the obligation under the judgment, any party may recourse to UN Security Council and the Council will take necessary steps inter alia recommendations, or measures to be taken by the disputant to enforce the judgment. Thus, as a P5 member, China has the power to block any action that the UN Security Council might take to give effect to the ICJ judgment. Another less vigorous way to hold China responsible is resorting to advisory jurisdiction of the ICJ. Invoking the advisory jurisdiction of the ICJ does not need consent from the disputant parties.

Under Article 96 of the UN Charter UN General Assembly, UN Security Council, other organs of the UN and specialised agencies that maybe authorised by the UN General Assembly may seek advisory opinions of the ICJ or any legal question arising within the scope of their activities (for other UN organs and specialized agencies). The problem with the advisory opinion of the ICJ is, it lacks binding authority. Thus it leaves the enforcement of the decision on the disputant States and the UN General Assembly good faith and civilized behaviour.