Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) Act (Amendment) Bill, 2015

INTRODUCTION:

The Senate, on Thursday, November 3, 2016 passed into law Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provision) Act 2004 LFN (Amendment) Bill, 2015 (S.B. 55) after it scaled through the third reading stage. The Bill was sponsored by Sen. Biodun Olujimi (Ekiti South).

According to its long title, the bill is for an Act to amend the counterfeit and fake drugs and unwholesome processed foods (Miscellaneous Provisions) Act Laws CAP C34 Laws of the federation and for other matters connected therewith, 2015.

The 4-sectioned bill seeks to amend three of the sections of the principal Act. The high level of fake and counterfeit drugs circulation in Nigeria is a matter of great concerns as this has consistently been a source of embarrassment to our health care providers and eroded the confidence of the public in the health delivery system with the rate of treatment failures often experienced in most health care centres in the country.

She said the business of fake and counterfeit drugs has been growing in the country because the law put in place to check the spread is weak. She said the regulatory agency on drugs, NAFDAC, ought to have been empowered to enable it to carry out its responsibilities with the ability to impose stiffer penalties on offenders.

As the sponsor of the bill said, fake and counterfeit drugs are the highest weapon of terrorism against public health in Nigeria given its tendency to ‘kill the masses’. “The Weakness of the law breeds lawlessness, resulting in impunity, oppression, exploitation and violation of human rights regarding the case of drugs counterfeit.

In his words: “Perpetrators of counterfeit drugs feel that there are no punitive laws and also they could easily manoeuvre their way each time they were caught and go free, but it is time we introduce strict punishment,” he said.

This is a welcome news, long overdue, a lot of people die every day because of fake drugs. People who produce or knowingly sell fake drugs are murderers.  This bill if implemented will deter people from indulging in health risk business. For years, Nigeria has been a dumping ground for fake drugs, what we are saying is that we want to put a stop to this.

SYNOPSIS OF THE BILL:

Section 1 identifies The Counterfeit and Fake Drugs and Unwholesome Processed Foods (Miscellaneous Provisions) Act Cap C34 Laws of the Federation 2004 as the Act sought to be amended by this bill. Section 2 of the bill seeks to amend Section 3 of the Principal Act by substituting for the existing Subsection (1) the following new subsection (1):

(1) Any person who commits an offence under:

(a) Section 1 of this Act is liable on conviction To Life Imprisonment.

(b) Section 2 (1) of this Act, is liable on conviction to a fine not exceeding N2,000,000 or imprisonment for a term of not less than 4 Years or to both such fine and imprisonment.

Section 3 seeks to amend section 10 of the principal Act.

3. (a) Section 10 of the Principal Act is amended by substituting for the existing Section 10 the following new Section (10): Any drug, poison or unwholesome processed food products seized by a Task Force established by this Act shall be forfeited to the Federal Government and shall be Destroyed By The Agency.

3. (b) Section 10 is amended by inserting immediately after the existing Section 10 the following new sections 10A and 10B:

10A-(1) A person convicted of an offence under this Act shall forfeit to the Federal Government all the assets, money in bank and properties which may have been acquired with the proceeds of the crimes;

(2) For the avoidance of doubt and without any further assurance than this Act; all the properties of a person convicted of an offence under this Act and shown to be derived or acquired from such illegal act shall be forfeited to the Federal Government.

(3) Where a person is arrested for an offence under this Act, the Agency shall immediately trace and attach all the assets, money in bank and properties acquired as a result of such illegal act and shall thereafter cause to be obtained an interim order by the court. (4) Where:

(a) The assets, money in bank or property of any person arrested for an offence under this Act has been seized; or

(b) any assets, money in bank or property has been seized by the Agency under this Act, the Agency shall cause an application to be made to the Court for an interim order forfeiting the money in bank or property concerned to the Federal Government and the Court shall if satisfied that there is prima facie evidence that the property concerned is liable to forfeiture, make an interim order forfeiting the money in the bank or property to the Federal Government.

(5) Where an arrested person is convicted of an offence under this Act, the Agency or any authorized officer shall apply to the Court for the order of confiscation and forfeiture of the convicted persons’ assets, money in bank and properties acquired or obtained as a result of the crime already subject to an interim under this Act.

(6)(a) A copy of every final order forfeiting the asset, money in bank and property of a person convicted under this Act shall be forwarded to the Agency;

(b) Upon receipt of a final order pursuant to this section, the Secretary to the Agency shall take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof and the money in bank shall be paid into the Consolidated Revenue Fund of the Federation.

Provided a “Victims Compensation Fund” shall be created from which victims of crimes under this Act shall be compensated from.

(c) Where any part of the property included in a final order is money in a bank account or in the possession of any person, the Agency shall cause a copy of the order to be produced and served on the manager or any person in control of the head office or branch of the bank concerned and that manager or person shall forthwith pay over the money to the Agency without any further assurance than this Act and the Agency shall pay the money received into the Consolidated Fund of the Federation and the Victims Compensation Fund.

(7)(a) Where a person is discharged or acquitted by a court of an offence under this Act, the Court may make an order of revocation or confirmation as the case may be, of an interim order made pursuant to this Act whichever order is considered just, appropriate or reasonable within the circumstances; (b) Where an interim order is revoked by a court under paragraph (a) of this section, all assets, money in bank and properties of the person concerned shall be released to him by the Agency.

10B. The Minister may with the approval of the president make rules and regulations for the effective implementation of the provisions of this Act including the percentage to be paid into the victim’s Compensation Fund, the procedure for its operation and for the disposal or sale of any property or assets forfeited pursuant to this Act.

Section 4 is the citation section.

Succinctly put, the sections sought to be amended are sections 3 and 10 of the principal Act.

The Initial Provision(s)

Section 3 (1) Any person who commits an offence under- (a) section 1 of this Act, is liable on conviction to a fine not exceeding N500,000 or imprisonment for a term of not less than five years or more than fifteen years or to both such fine and imprisonment; (b) section 2 (1) of this Act, is liable on conviction to a fine not exceeding N500,000 or imprisonment for a term of not less than two years or to both such fine and imprisonment.

Section 10 Any drug, poison or unwholesome processed food products seized by a Task Force established by this Act shall be forfeited to the Federal Government and shall be dealt with in such manner as the Minster may, from time to time, determine.

Deductions from the proposed amendments

a. Sterner Punishment

Whereas anyone

(a) produces, imports, manufactures, sells, distributes or is in possession of; or

(b) sells or displays for the purpose of sale; or

(c) aids or abets any person to produce, import, manufacture, sell, distribute or display for the purpose of sale, any counterfeit, adulterated, banned or fake, substandard or expired drug or unwholesome processed food, in any form whatsoever, commits an offence under this Act and shall, accordingly, be punished as specified in this Act. Culpable of importing, producing and distributing counterfeit and fake drugs, as well as unwholesome processed foods in the country under the principal Act attracts a fine not exceeding N500,000 or imprisonment for a term between five and fifteen years or to both such fine and imprisonment; now attracts life imprisonment (without an option of fine).

While the offence of…2 (1) Any person who-

(a) hawks or sells; or

(b) displays for the purpose of sale; or

(c) aids or abets any person to hawk, sell, display for the purpose of sale.

Any drug or poison in any place not duly licensed or registered by the appropriate authority, including any market, kiosk, motor park, roadside stall or in any bus, ferry or any other means of transportation, is guilty of an offence under this Act and shall, accordingly, be punished as specified in this Act. Which was originally punishable by N500,000 or imprisonment for a term of not less than two years or to both such fine and imprisonment now attracts a fine not exceeding N2,000,000 or imprisonment for a term of not less than 4 Years or to both such fine and imprisonment.

In addition to the forfeiture of any drug, poison or unwholesome processed food products seized by a Task Force in compliance with the Act, the new bill is proposing in its 10A, that a person convicted of an offence under this Act shall forfeit to the Federal Government all the assets, money in bank and properties which may have been acquired with the proceeds of the crimes.

Also, as opposed to the open-ended way (in such manner as the Minster may, from time to time, determine) of dealing with drug, poison or unwholesome processed food products seized by the Task Force under section 10 of the principal Act, such drug, poison or unwholesome processed food products are now to be Destroyed By The Agency. The Bill also provides for disposal of proceeds of crime under the Act by NAFDAC and payment of the proceeds into the victims compensation fund.

b. Creation Of “Victims Compensation Fund”

10A (3) empowers the Agency to trace and attach all the assets, money in bank and properties acquired as a result of such illegal act and thereafter apply for an interim order of forfeiture in respect of the money in bank or property concerned to the Federal Government by the court. Upon conviction, the Agency or any authorized officer shall apply to the Court for the order of confiscation and forfeiture of the convicted persons’ assets, money in bank and properties acquired or obtained as a result of the crime already subject to an interim under this Act to be made final. A copy of every final order forfeiting the asset, money in bank and property of a person convicted under this Act shall be forwarded to the Agency.

The Secretary to the Agency shall then take steps to dispose of the property concerned by sale or otherwise and where the property is sold, the proceeds thereof and the money in bank shall be paid into the Consolidated Revenue Fund of the Federation and a “Victims Compensation Fund” shall be created from which victims of crimes under this Act shall be compensated from.

c. Provisions For Implementation Of The Bill

The new section 10B empowers the Minister, with the approval of the president, to make rules and regulations for the effective implementation of the provisions of the Act including the percentage to be paid into the victim’s Compensation Fund, the procedure for its operation and for the disposal or sale of any property or assets forfeited pursuant to this Act. This is to ensure that the time to time implementation and follow up on the provisions of the bill are not left hanging. This ensures effectiveness and accountability.

CONCLUSION: