Established by Decree No 15 of 1993 (as amended), now Cap NI Laws of the Federation of Nigeria 2004, the National Agency for Food, Drug Administration and Control (NAFDAC), is an appropriate response to a national crisis: the unwholesomeness in the entire gamut of Nigerian pharmaceutical and food production businesses. This explains why the law setting it up comprehensively mandated it to regulate as well as control the manufacture, importation, exportation, distribution, advertisement, sales and use of food, drugs, medical devices, cosmetics, chemicals and packaged water. The agency has since remained focused on, and committed to, meeting the aspirations of the country.
However, after close to 20 years of its existence, it has become very obvious that a rethink of the law setting up the agency has become imperative if it must meet the expectations of Nigerians or contend with ever changing challenges of the domestic and global drug business. To appreciate the point being made, we need to take a critical look at the dynamics of the Nigerian drug business. Foreign-made pharmaceuticals account for 60 percent of drugs in the market with China and India as top exporters of these drugs. As much as 80 percent of all active ingredients in pharmaceuticals made worldwide come from either China or India, and these two countries are the prime suspects when it comes to bad drugs in the world. Deductively therefore, the bulk of counterfeit and fake drugs consumed by Nigerians come from China and India.
There are redemptive measures particularly from India, which has a law that imposes life jail on both local exporters of unwholesome products and their foreign collaborators. NAFDAC’s effort at getting a similar law enacted by the National Assembly has not succeeded in getting the federal lawmakers to appreciate the imperative.
The existing laws such as the Counterfeit, Fake Drugs and Unwholesome Processed Food (Miscellaneous Provisions Act (Cap C3 LFN 2004) and the Government of Nigeria Trade Practices (Miscellaneous Offences) Act No.67, 1992 (Now cap T12 LFN 2004) are too weak to serve the desired purpose. Emphatically, drug adulterators or fakers are serial “murderers” who deserve no less than capital punishment when caught, prosecuted and eventually convicted by the law courts. The existing laws do not have such force.
Few instances of the inadequacy of the extant laws guiding the operations of NAFDAC will put in sharper perspective the thrust of this write up.
On March 15, 2010 in Osogbo, the Osun State capital, one Afolabi Nurudeen, a baker, orchestrated an assault on Yedunni Adenuga, an Assistant Director and her team while on inspection of former’s bakery. He did that obviously to prevent the detection of the deadly and cancer-causing flour-enhancer, potassium bromate, outlawed by the agency in accordance with international health practice as part of the measures adopted to protect the mass consumers of bread in the country. Though the culprit was convicted by an Osogbo Federal High Court in the subsequent action filed against him by the agency in May 2011, his sentence, one year imprisonment with an option of N4, 000 fine, was a slap in the wrist. Section 25 (1) of the NAFDAC Act under which he was tried has proved inadequate to address the exigencies thrown up the unwholesome practices of criminally minded Nigerian businessmen and women.
There is also the celebrated “My Pikin” – the children teething mixture saga of 2008. The agency successfully secured a court judgment against the producers of the deadly product on May, 17, after a protracted trial. Barewa Pharmaceutical Company, the producer of ‘My Pikin’ was directed to wind-up and its assets forfeited to the Federal Government. However, Adeyemo Abiodun, the firm’s production manager, and Egbele Eromosele, the quality assurance manager, bagged seven years imprisonment each for the two counts of conspiracy to sell dangerous drug and selling dangerous drugs. They were discharged and acquitted on the four other counts of adulteration, manufacturing and distribution of the killer drug. Again, in reaching the judgment, the trial judge relied on the provisions of the Miscellaneous Offences Act M17 Law of the Federation of Nigeria (2004).
The extant laws are weak and inadequate. We reason within the context of the daredevilry of some criminally-minded players in the nation’s food and drug businesses. In their desperation, they can take any risk, especially when the existing laws are not considered serious deterrence against the crimes that would make then instant millionaires. For any meaningful progress to be made in the nation’s drive for the ideal healthcare delivery system and its pharmaceutical component, a total overhaul of NAFDAC Act has become necessary.
The new legal framework template must take care of institutionalisation of special courts for speedy trial, stiffer penalties such as life sentences without any option of fine for offenders; making drug counterfeiting a non-bailable offence; outright confiscation of counterfeiters’ assets and their use as compensation for victims of the illegal business.
This proposal might seem draconian, and human rights activists might cry blue murder. We should however understand that only those who fall foul of the law are the targets. More importantly, drug counterfeiting and faking give their victims no choice. They are deadly operators. There was once an attempt on the life of Professor Dora Akunyili in 2003. The suspects were set free after two years of trial on technicalities.
The soul of the counterfeit drug business in Nigeria is the Bridge Head Market in Onitsha as teams of food and drug control experts move from shop to shop in search of counterfeit and substandard medicines. A successful one month siege on the market carried out by the agency in April 2007 harvested more than 80 truckloads of counterfeit drugs. The question to ask is after the siege, what followed.
Nigeria must take a cue from the practical responses of India and China, the global capitals of counterfeit and fake drugs. While in China the offence attracts death penalty, it is life jail in India.
Globally, it is said that a nation’s wealth is determined by the health of the mass of its citizenry. We urge President Goodluck Jonathan to empower NAFDAC, SON and Consumers Protection Council to carry out their statutory functions of protecting Nigerians from the consumption of unwholesome products.
For NAFDAC, the processes within the strategic execution circle are well aligned to propel success. The only drawback is the legal framework which is too weak to support the current momentum drive by the Dr. Paul Orhii-led management. This should be corrected.
