MY PIKIN: A CASE FOR REVIEW OF NAFDAC LAW
National Agency for Food and Drug Administration and Control (NAFDAC), under the leadership of Dr Paul Orhii, in what is regarded as historic feat, secured on Friday, May 17, this year, a court judgment against the producers of My Pikin Baby Teething Mixture that killed scores of children in 2008. This is the first time the agency would strike the bull’s eye in litigations that border on medicine issue. A Federal High Court in Lagos, presided over by Justice Okechukwu Okeke, ordered that the firm-Barewa Pharmaceutical Company-be compulsorily wound up in line with the provisions of the law and its assets forfeited to the Federal Government.
Justice Okeke sentenced the firms’ Production Manager, Adeyemo Abiodun and the Quality Assurance Manager, Egbele Eromosele, to seven years each for conspiracy to sell dangerous drug; and also handed them another seven years for selling dangerous drugs. Both sentences were to run concurrently. The judge discharged and acquitted them of the remaining four counts relating to adulteration, manufacturing and distribution.
Perhaps, they would have got more years behind bars had NAFDAC, in the opinion of the court, succeeded in proving the allegation of drug adulteration. Read Justice Okeke: “My understanding of the word ‘adulterated’ is that somebody has tampered with the original product and changed the quality and efficacy of the drug. There must be evidence that the manufacturer of the adulterated drug changed or tampered with the ingredients reducing the standard of the original drug. The prosecution failed to prove its case.”
The law on which the accused were tried was the Miscellaneous Offences Act M17 Laws of the Federation of Nigeria, 2004. The offences were contrary to Section 1(18)(a)(ii) and punishable under Sections 1(8)(a)(ii); 1(18)(b)(ii) and 3 of the same Act. The purpose of this write-up is not to interrogate the aspect of the court’s decision on the “inability” of NAFDAC to prove that the drug was adulterated, despite a witness’ testimony that My Pikin was discovered through laboratory analysis by the agency to have been contaminated with diaethylene glycol, which is a deadly toxic substance that is unacceptable in food or drug preparation; but to reinforce the call for a review of the relevant laws (including NAFDAC Establishment Law) with a view to taking out the incentives in the manufacturing of counterfeit or adulterated drugs and distribution of the same.
I must commend NAFDAC for its commitment to prosecuting the case and securing this judgment. It is a credit to the sharp leadership focus of Orhii and his management team. They must not relent on their oars. Nigeria and her people will remain eternally grateful for their dedication to the fight against fake drugs. This judgment is, no doubt, a boost to the fight. The court must also be commended for hearing the matter judicially and judiciously. Certain quarters may consider the about-five-years that the matter lasted in court too long, the good thing is that justice has not been denied. The judiciary, through Justice Okeke, has brought a breath of fresh air into the fight against sale of adulterated drugs with this judgment. Hitherto, the matter would have lingered in court; all manner of technicalities would have been employed to stall prosecution; and, in many instances, the administration of justice would have been compromised with the deployment of filthy lucre.
The executive and the legislative arm of government must rise to the occasion by doing the needful to strengthen the war against manufacturing and distribution/sale of fake drugs in the country through a review of relevant laws that will prescribe stringent punishments that will serve as deterrents. Light sentences must give way to heavy ones. I am excited about media reports that Orhii’s NAFDAC has initiated the process of the review at the level of the executive with a draft copy of the reviewed law waiting to be sent to the National Assembly for consideration and passage into law.
Orhii had confirmed this process in a recent interview. He was quoted to have said: “Yes, we have done that. We have reviewed (the law); we have the draft that is ready. In fact, the Minister of Health has passed it to the Minister of Justice and the Federal Executive Council is looking at it. As soon as it is approved we will move it to the National Assembly for consideration. The law is there. Just like in India, we are asking for lifetime jail.
Personally, I had wanted death penalty because, as far as I am concerned, drug counterfeiter is worst than an armed robber. An armed robber, when he points his gun at you, gives an option most of the times, either your life or your money; and if you give him your money, he lets you go. But the counterfeiter doesn’t give you that option.”
Perhaps to show how irritated he is with the situation, he had, according to him, mooted the idea of death penalty, but explained that a committee that was emplaced subsequently decided to recommend life jail.
According to him, “I wanted death penalty, but unfortunately I had to come down when we formed a committee made up of very Senior Advocates of Nigeria (SAN) to come up with something that will be acceptable; Institute of Advanced Legal Studies was involved; Office of the Attorney-General of the Federation was involved; Ministry of Health and Civil Rights Activists were involved.
“So, in the new draft, we arrived at a compromise that it would be life jail just like India has done and then confiscation of assets because we know that the act of counterfeiting lies in the incentive to make huge profit. If they know that if they are caught, their assets would be confiscated, they will be discouraged. So, we are saying that we confiscate their assets, and then in situations where we can prove that the fake products caused death or severe bodily injury, some of the assets confiscated could be used to compensate the victim of the crime.
“We are also asking for whistle blower in that new law. This is to give us the right to give reward to those who blow the whistle that helps us to intercept fake medicines. We are also asking for a special court to speedily try these people because sometimes, cases can drag up for several years in conventional courts. There are cases that have been dragging for the past four years since I came and even beyond that; and in terms of resources, it takes a lot of money from us. So, we want speedy trial for the crime or alternatively make it a non-bailable offence to put incentive on speedy trial of the accused. The law is ongoing and we hope that very soon it will be passed. Once the Federal Executive Council approves it, we will send it to National Assembly for consideration.”
This is a beautiful picture that has been painted above. If there is a battle, apart from the bigger battle against corruption, that Nigerians eagerly want the Federal Government and the entire nation to win, it is the battle against fake drugs. Many Nigerians, including this writer, believe that a law that prescribes stringent punishments and completely takes away the incentives from drug counterfeiting business is imperative at this point. If it can be couched by the executive in the manner Orhii has presented its outlook and thoroughly considered by the federal legislature, there is no doubt that it will enable the wheel of justice to run expeditiously such that, at the levels of the trinity (executive, legislature and judiciary) of government, all loopholes would have been plugged.
Indeed, it will be in the general and greater interest of Nigeria and Nigerians for our society to be rid of counterfeit drugs and tendencies to perpetrate and perpetuate the menace. And like the sampler that his Lordship, Justice Okeke, has given to the nation with the sentencing of the sellers of My Pikin killer syrup, more far-reaching sentences that would conduce to the stamping out of the menace in our society would be handed down to as many as are courageous enough to still engage in the nefarious activities in spite of the stringent provisions of the reviewed law(s).
Written By John Ainofenokhai