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34 — Vanguard, THURSDAY, SEPTEMBER 24, 2020
Illegality of laws authorising AGF and
governors to detain Nigerian citizens
By FEMI FALANA
THE Criminal Ordinance imposed on
conquered territories by the British colonial
regime provided for the detention of people
at the pleasure of His Majesty, the King of
England. The few traditional rulers who challenged
the ruthless exploitation of the resources
of the territory of Nigeria and particularly
the monopoly of coastal trade by foreign business
tycoons were deposed and deported to
remote areas in the Carribean Islands. It is on
record that some of those traditional rulers
died in exile. At the end of colonial rule the
obnoxious provision of detaining citizens at
the pleasure of governors was retained in the
criminal procedure codes of the independent
states, including Nigeria. Under the current
democratic dispensation some elected state
governors have continued to depose and banish
traditional rulers to remote areas in the
country for security reasons.
To legitimise the colonial legacy, the Administration
of Criminal Justice Laws of all states
in Nigeria has empowered state governors to
detain people at their pleasure. Curiously, hell
was let loose recently when Governor Hope
Uzodimma of Imo State signed into law the
Administration of Criminal Justice Bill which
had been passed by the Imo State House Assembly.
The governor has been singled out for
sustained attack in the media because section
484 of the Law has conferred powers on
him to detain people at his own pleasure. Instead
of the diversionary fixation on the Imo
State Law it is high time the constitutionality
of keeping citizens in custody at the pleasure
of the AGF and State Governors was examined.
Justifications for detaining citizens at the
pleasure of governors: Section 484 of the Imo
State Administration of Criminal Justice Law
provides that: “Where any person is ordered to
be detained during the Governor’s pleasure
he shall notwithstanding anything in this Law
or in any other written law contained be liable
to be detained in such place and under such
conditions as the governor may direct and
whilst so detained shall be deemed to be in
legal custody”. Section 485 thereof states that:
"A person detained during the governor’s pleasure
may at any time be discharged by the
governor on license. The license under the section
may at anytime be revoked or varied by
the governor and where license has been revoked
the person to whom the license relates
shall proceed to such place as the governor
may direct and if he fails to do so, may be
arrested without warrant and taken to such
place.”
In supporting the controversial sections of
the Imo State Administration of Criminal Justice
Law some lawyers have placed premium
on the case of Guabadia v. The State (2004)
guaranteed the personal liberty of every person
in Nigeria. No doubt, the human right to
personal liberty is not absolute. But no person
shall be deprived of such liberty save in strict
compliance with a procedure permitted by
law.
Hence, the conditions under which people
may be legally deprived of their fundamental
right to personal liberty are set out in sections
35. It is specifically stated that "persons suffering
from infectious or contagious disease, persons
of unsound mind, persons addicted to
drugs or alcohol or vagrants" may be deprived
of their liberty "for the purpose of their care or
treatment or the protection of the community".
Section 330 of the Lagos State ACJL 2015
is in pari materia with Section 484 of the Imo
State ACJL 2020 except that the term “at the
pleasure of the governor” is used instead of
“at the discretion of the Governor” in the Lagos
State ACJL. Since the President is busy
with the management of the affairs of the Republic
the Attorney-General of the Federation
(AGF) is empowered by section 438 of the
Administration of Criminal Justice Act to detain
citizens indefinitely in a safe custody or
suitable place other than prison or mental
All laws which
have conferred
powers on state
governors to detain
convicted offenders
health asylum. It
is submitted that
no violation of
fundamental
rights to personal
liberty and fair
ALL FWLR (Pt.
205) 191 SC,
(2004) 2 SCNJ 55
where the death
sentence passed
on the appellant
was set aside and
in its place, the appellant
was ordered
to be detained
at the plea-
FEMI FALANA, SAN sure of the Gover-
nor of Edo State. With respect, the case is totally
irrelevant as the constitutional validity of
section 208 of the repealed Criminal Procedure
Law of Edo State was not considered by
the Supreme Court. In fact, when the constitutionality
of a similar provision was raised in
the case of Sunday Modupe v The State
(1988) All N.L.R.371 the apex court said that
it could not be considered as it had not arisen
from the issues for determination formulated
by the parties in the appeal.
Other lawyers have made a strong case for
the retention of the provision of the law on the
grounds that the order is always made by courts
to detain convicted children and persons who
are non compos mentis. It is submitted, without
any fear of contradiction, that the provisions
of all laws that empower citizens to be
detained at the pleasure of the Federal Attorney-General
and State Governors cannot be
justified under section 35 of the Constitution
of Nigeria and article 6 of the African Charter
on Human and People's Rights Act which have
hearing can be
worse than the
treatment that is
meted out to a convict
who is detained indefinitely at the pleasure
of the AGF. In other words, neither the
Constitution nor the Criminal Code could
have contemplated a situation whereby a trial
court that has tried and convicted a defendant
will turn round to make an order to the effect
that the convict be detained by the AGF who
had successfully prosecuted him! By directing
a convicted person to be detained indefinitely
in a safe custody on the orders of the AGF a
trial court has abdicated its judicial functions
to the executive organ of the government.
More so that it is only the AGF who may at
any time revoke or vary the licence. All laws
that provide for the preventive detention and
post-conviction detention of citizens are inconsistent
with section 35 of the Constitution
and are illegal, null and void by virtue of section
1(3) of the Constitution.
Usurpation of judicial powers by the executive:
It is submitted that the Constitution did
not envisage a situation whereby the judicial
powers of the Federation vested in the courts
by section 6 of the Constitution will be shared
with the executive or the legislature. In other
words, the power to sentence a person who
has been tried and convicted by a court cannot
be subjected to the exercise of the discretion of
the executive. To that extent, all laws which
have conferred powers on state governors to
detain convicted offenders at their pleasure
are illegal and unconstitutional. This point
was sufficiently addressed in the case of Hinds
and other v The Queen; Director of Public Prosecutions
v Jackson, Attorney General of Jamaica
[1976] 1 All ER 1976, [1976] 2 WLR
366, (1975) 119 SJ 864, [1976] Crim LR 124,
[1977] AC 195 where Lord Diplock rightly said
that “…what Parliament cannot do, consistently
with the separation of powers, is to transfer
from the judiciary to any executive body
whose members are not appointed under Chapter
VII of the Constitution, a discretion to determine
the severity of the punishment to be
inflicted upon an individual member of a class
of offenders.” To be concluded
are illegal and
unconstitutional
Telemedicine and malpractice insurance
By FEMI
OBIKUNLE
T ELEMEDICINE
involves remote
diagnosis and treatment of
patients through
telecommunication
technology. It is manifestly
beyond diagnosis and
prescription through
telephone as the average
person tends to think.
Telemedicine allows
patients to access medical
expertise quickly and
efficiently without the need to travel.
Telemedicine services can be used for a number
of non-emergency situations such as diagnoses
of common medical problems such as
allergies, asthma, bronchitis, cold, or flu, ear
infection, pinkeye, rashes, digestive problems,
and many other issues. Some of the potential
benefits of telemedicine include increased
access to health care (especially in
underserved areas and among underserved
populations), expanded utilization of specialty
expertise, system coordination and integration,
ready availability of patient records, and
reduced opportunity costs of care for patients.
These advantages and benefits of
telemedicine practice must be balanced with
the reality of any professional practice.
Professionals are individuals who have passed
rigorous examinations, are licensed to practise,
subscribe to ethical guidelines and mandatory
continuous post-qualification training.
Employers and telemedicine practitioners
ought to be concerned about medical
malpractice claims, and how the use of
telemedicine may affect their legal
responsibility. Telemedicine may give rise to
complex legal issues for medical practitioners
in Nigeria, if proper procedures and guidelines
are not followed.
These claims may arise from:
i) Malfunctioning of telehealth equipment
ii) Wrong diagnosis
iii) Wrong patient recordsaccess
iv) Non-access to patient records
v) Prolonged downtime of telemedicine system
vi) Professional negligence of telemedicine
practitioners
vii) Failure of telepharmacy
viii) Post-telesurgery complications
ix) Employers' collateral liability
x) Telemedicine employees malfeasance
Telemedicine insurance plays a very
fundamental role in ensuring that
professionals and their employers are
financially protected against these claims.
Malpractice describes a breach duty owed
by someone rendering professional services to
a person who has contracted for such services.
According to Gostin (2000), the mortality
resulting from
medical errors
each year in
USA is
estimated to
be between
44,000 and
98,000 per
y e a r ,
accounting for
more deaths than motor vehicles crash, breast
cancer, or Acquired Immunodeficiency
Syndrome. It is instructive at this juncture to
review the trend of Malpractice claims in a
North American State.
No-Fault Compensation for Medical
Injury: A Case Study: According to Horwitz
and Brennam (1995), Florida found itself
facing a crisis in medical malpractice liability
in the 1970s and 1980s. Between 1970 and
1975, more than twenty medical malpractice
insurers canceled their coverage of Florida
physicians, and by the mid-1980s the state's
largest malpractice insurer ceased doing
business there altogether. The major reasons
for this closure of malpractice claims were
increasing, particularly for obstetrics; and
severity of claims (that is, the amount paid
out) also was increasing, again particularly
for obstetrical cases. Clearly, a legislative
response to the perceived crisis was called for.
In 1988, Florida passed a bill transferring
liability cases for newborn infants'
neurological injuries from the tort system to a
no-fault system. Unlike the tort system, nofault
liability compensates patients who suffer
any treatment-induced injury, not just those
that can be traced to medical malpractice, or
negligence (Horwitz and Brennan, 1995).
This is a qualitative advisory for countries
•Telemedicine service in progress
Telemedicine allows
patients to access
medical expertise
quickly and efficiently
without the need to
travel
that are yet to embrace telemedicine
practice.
In USA, Kilpatrick and Cody (2009) from
Georgia Telemedicine Center (College of
Medicine) stated that “a current argument has
been made that a physician carrying out
consulting services in telemedicine should be
protected from malpractice claims from a
referring physician. Current case law suggests
that courts will find a physician-patient
relationship, and hence contractual obligation
exists in telemedicine. According to Kilpatrick
and Cody (2009), the courts determined that
the following factors to form the basis of such
relationships:
1) If the Consultant has met the patient, or
know the patient’s name;
2) If the Consultant examined the patient’s
chart;
3) If the Consultant examined the patient;
4) If the Consultant accepted a fee for his, or
her services.
It is possible for a consulting physician to
establish legal physician-patient relationships
if any of these conditions are met. Group
professional liability insurance reduces cost
for individual practitioners as the following
example demonstrates. Some experts in the
field of telemedicine argue that telemedicine
reduces individual practitioner's liability
because the practice involves collaborations
between several healthcare professionals.
However, there is a general consensus that
telemedicine raises patients' expectations
which could lead to malpractice claims when
their needs are not fulfilled. In addition, the
practice itself could challenge an insurance
company with regards to the grey area of
coverage provided that may not be properly
written.
According to a round table discussion
coordinated by Diane Hoffmann, who is a
Professor of Law at the Maryland School of
Law and Health Program ( 2010), “ there has
been a lack of telemedicine malpractice cases
from which to draw some ground rules about
legal risks associated with telemedicine. The
majority of legal actions that have been
associated with telemedicine were brought
against providers who prescribed medication
over the internet, rather than claims brought
against providers for negligent care
administered through telemedicine.” The case
study was designed to stimulate discussion
involved the provision of teleoncology
consultation services by a medical center in
one state to patients in another state. The
complicated fact pattern included a patient
(Kay) located in Oklahoma and diagnosed
by her attending physician (Dr. Local) with
lung cancer but also being seen by a consulting
oncologist Although there are few legal cases
involving telemedicine, there is a widespread
assumption that telemedicine may pose new
complications to traditional medical
malpractice claims, in particular
jurisdictional, choice of law, and procedural
issues and duty of care concerns. As the use of
telemedicaaaa2ine grows, malpractice claims
relating to telemedicine services may increase
and, if so, these complications are likely to
create a new body of law.
Another illustrative malpractice claim is
expounded in a recent case in Telemedicine
malpractice that related to online prescribing
was that of a United States doctor who was
sentenced in 2017, to nine months in county
jail with a fine of more than $4,000 for
practicing medicine in a patient’s home state
without being licensed in that state. It began
when a patient filled out an online
questionnaire. The website forwarded their
responses to a processing firm which sent them
to the physician, who was subcontracting for
an online pharmacy and prescribed an
antidepressant to the patient. Shortly after
filling the prescription, the patient committed
suicide.
To be concluded