In view of calls to regularise and standardise the procurement and distribution of drugs, Augustine Ogoma of the Imo State Judiciary examines the Medical and Pharmacy Laws.
The only reference is the dissolution of the Food and Drugs Administration and Control Department of the Federal Ministry of Health and Social Services. All assets, funds, resources and movable or immovable property which immediately before the commencement of the Act held office in the Food and Drugs Department shall be deemed to have been transferred to the Agency.
The implication of these provisions is that the National Agency for Food and Drug Administration and Control is to administer the provisions of the Food and Drugs Act. This view is buttressed by the fact that the NAFDAC Act does not contain substantive offences.
This simplistic approach may, however, be faulted by conflicting provisions noticeable in the two laws. These conflicts includes, disparity in the penalty provisions; use of different terminologies in related cases; and differential powers conferred on the Minister. For instance, under the Food and Drugs Act the power of making regulations is exercisable by the Minister on the advice of the Advisory Council. But under the NAFDAC Act, the power is exercisable by the governing Council on the approval of the minister.
Silence on the relationship between the two laws creates unnecessary confusion and uncertainty. The Food and Drugs Act deals with substantive issue such as offences and penalties. The NAFDAC Act is more or less administrative in context. In the main, it deals with function and powers of agency and its functionaries. It effectively address the issue of probity of the officers by making commendable disciplinary provision.
But no offences are created. On this ground it can be argued that the NAFDAC Act cannot stand alone since offenders cannot be charged under any of its provision. It is therefore suggested that the two laws be merged since, as seen from their respective provisions, one complements the other.
Counterfeit and Fake Drugs
(Miscellaneous provision) Act
Enforcement of provisions of the Counterfeit and fake Drugs (Miscellaneous provision) Act is conferred on the Federal and State Task Force. The functions of the task force include:
•Paying unscheduled visits to all ports of entry and border posts.
•Taking sample or specimen of any article, opening and examining, while on the premises, any container or package;
•Examining any books, documents or records found on the premises, which are reasonably believed to contain any information relevant to the enforcement of Act; and
•Seizing any drug or poison which is counterfeit, adulterated, banned, fake, substandard or expired.
The Task Force also have power to seal up any premises used or being used in connection with any office under the Act.
The Pharmacists Council of Nigeria Act
The pharmacists Council of Nigeria is charged with the implementation of provisions of the Pharmacists Council of Nigeria Act. Among other functions, it determines the standard of knowledge and skill to be attained by person seeking to become registered members of pharmacists profession. Although enforcement of drug laws is not a direct function, the Council by its nature helps to instill sanity in drug matters.
The various provision of the Act creates an inherent deterrence against drug offences. In particular, the provisions on professional discipline make it possible to appropriately deal with a pharmacists found guilty of a drug offence.
Implementation problems
From the foregoing discourse it is clear that there exist adequate legislative enactments to control the manufacture, sale and advertisement of drugs. The major problem is that of implementation.
The food and Drugs Act has been in force since 1974 but not much successes have been recorded. None of the regulations which received the approval of Advisory Council under the food and Drugs Administration and control Department has been passed into law.
Enforcement procedures are not clearly set out. Apart from the general provisions in Section 10(5), and 14(3), no section confers power of prosecution on any particular person or authority. The position is the same under NAFDAC Act. The result is that a reported case is referred to the police for prosecution.
A noticeable fact about this procedure is that many cases end up at investigation stage. The authority in charge react by passing the buck. For instance, officials of the NAFDAC blame the police and the judiciary for the recurring difficulty normally encountered in the prosecution of food and Drugs Offenders. They claim that many cases which should have been prosecuted end up mid-stream due to ineffective enforcement.
Closely related to the above is the delay associated with investigations of reported cases. In some countries such as Britain, such reports are treated with utmost dispatch. The contrary is the case in Nigeria. Investigations, almost always, take an unduly long period thereby creating opportunity for fraudulent dealing with condemned product.
A case that readily comes to mind is that of destruction of fertility drugs worthN11million by NAFDAC officials in Kano on January 28, 1994. The drugs were seized at the Murtala Mouhammed International Airport in November 1992. They bore neither the name of the manufacturer nor expiry date. Such time lag could lead to many undesirable consequences for instance, some of the consignment could, with the connivance or collaboration of officials, be pilfered and sold to unsuspecting members of the public.
This research reveals that most provisions on sale of poison and prescription of drugs laws are not observed in practice. Many drug sellers still sell such drugs without prescription.
Oral request are honoured even by some registered pharmacists. Similarly, in disregard of the law, some patent medicine dealers stock and sell prescription drugs. Some also retail in smaller quantities. Tablets and capsules are freely counted and sold to buyers.
The main problem in this regard is that of enforcement. Many state ministries of health are not sufficiently equipped to monitor the activities of the registered pharmacists and patent medicine dealers. In some states, there may not be more than ten pharmaceutical inspectors with no functional vehicles. Much cannot be achieved under this situation, especially in view of the large number of registered pharmacy and patent medicine shops in the states.
Sale of drugs in prohibited places is still noticeable in many towns and cities in the country. The greatest offence in this regard is committed with respect to sale in market places. In 2003, the Pharmacists Council of Nigeria was compelled by the then prevailing situation to issue Guidelines and Regulations reiterating the legal position. The result of this effort is yet to be seen as sections of some Nigerian markets are still devoted to the sale of drugs
Conclusion
This thesis shows that the various enforcement agencies are making reasonable efforts in the implementation of drug laws. Some public alerts have been issued by the NAFDAC against the consumption of drugs adjudged dangerous to health. Also both the NAFDAC and the task Forces have been embarking on incessant raids, seizures and destruction of illegal drugs. The Pharmacists Council of Nigeria uses the process of de-registration to phase out sale of drugs in market places.
Despite the above efforts, the scourge of fake, adulterated and sub-standard drugs has continued unabated. This has generated comments from the mass media, individuals and organisations. An irresistible conclusion is that the enforcement authorities are ill-prepared to reverse the trend. In most cases their directives are not backed by practical implementation. For instance, when a drug is declared unfit for human consumption there is usually no follow up action to ensure that it is actually withdrawn from the market.
The need for closer monitoring of sale of drugs in Nigeria cannot be over-emphasised. There should be routine visits to drug factories to ensure compliance with in-house quality control requirements. In addition, quality control laboratory should be established in each state of the Federation. Drugs from every batch should be certified by this laboratory before been put into circulation. To curb the activities of drug fakers, the raids and seizures of suspicious drugs should be intensified.
The consumer has a very important role to play. Undeserved patronage keeps illegal drug dealers in business. If consumers shun drugs suspected to be sub-standard: make their purchases from accredited sources and report suspected cases to law enforcement agents, the incidence of illegal drugs will be minimised. Education is necessary in this regard as some consumers fall victim out of ignorance.
•Ogoma is also a research student
