To Be Or Not To Be

11 10 2009

As I was searching recent news stories, I came across this one from Nigeria. They are contemplating the punishment for counterfeit drugs. Here is the whole article.

The main goal of criminal punishment is either for retribution, reformation or deterrence.

By retribution, emphasis is placed on the idea of just deserts, meaning the criminal deserve the punishment by his action. Reformation is meant to bring about a change in the character and behaviour of the offender in order to continue to live like any other good citizen. While, by deterrence, the criminal is put in the position not to practice the crime and also to discourage others from engaging in criminal behaviour.

Dr. Paul Orhii, current boss of the National Agency for Food and Drugs Administration and Control (NAFDAC) disclosed recently that the agency has received a nod from Federal Ministries of Health, Foreign Affairs, Justice and National Assembly to enact laws that would be commensurate with the gravity of faking and counterfeiting drugs and processed foods.

Still in operation, the maximum penalty for counterfeit and fake drugs offenders is 15 years jail term with alternative of N500,000 as fine, irrespective of number of people killed, maimed and injured in the cause of its consumption.

It is trite in physical sciences that, action and reaction be equal and opposite before virtually all equations could balance. For justice to prevail too in the society the weight of an offence should balance with the punishment awarded. A pound of flesh, not more and not less to some extent gives justice a meaning in the society.

It has been argued that the developed nations’ civil liability law which makes it possible for injured consumers to obtain redress in the courts discourages generally the production of fakes and those peddling them. The inclusion in the proposed law of possible cause of action for victim of counterfeit drugs which the agency promised to encourage and assist victims to gather evidence with which to prosecute manufacturers for punitive damages shall suffice for deterrence to others.

But due to the inherent poverty and ignorance pervading our society, except if material assistance could be inclusive, the agency’s effort for the victim may not be enough. The agency is still in the position to recoup what it spends after successful prosecution.

The new strategies of NAFDAC is not only to build an institution that is armed to the teeth, but could bark and have enough poisonous fangs to bite deeper into teh flesh of local manufacturers and distributors of fake drugs. The agency appears poised too to extend equal dose of the war on the foreign collaborators.

Of course, more than 60% of counterfeit and fake drugs and unwholesome processed foods are imported from China and India into Nigeria. Even when there is less than 1% cases of fake drugs in circulation in USA, it has been reported that millions of drug consignments pass through their customs every year to 9,000 wholesalers.

In an attempt therefore to stop or minimise the supply, the agency’s new boss appears to be launching a concise blitzkrieg at the enemies’ rear, the fountain for their supplies. The opportunity perhaps came when a container of more than 700,000 tablets of anti-malaria was impounded at the nation port. Produced and shipped from China, they bore an unexpected label – “Made in India”. Even the fakes were being faked. It was that bad.

Pharmaceuticals are Indian major export to Nigeria in particular, and as such they had to support Nigeria to take it up with China. This has equally led the Indian Parliament to pass a law making it to involve life-jail term for people who manufacture these products and the exporters.

But the former Director of China State Food and Drug Administration (SFDA), Zheng Xiaoyu, who was found guilty by their court for taking bribes worth $850,000 in exchange for approval of fake drugs was executed recently too. All the six Chinese people involved in the manufacturing and exportation of the fake anti-malaria drugs into Nigeria are being prosecuted in China.

But it has also been reported by Chinese authorities that it was a Nigerian importer who went to China with the sample and showed them and requested that he wanted something similar to the samples from the company that was not registered to manufacture drugs in China. As usual, the Nigerian importer is said to be on the run.

Often stuffed with chalk, flour or pollens, the pills are passed off as genuine medications. The drug counterfeiters are so skilled that even the holograms on the packages are copied and faked. It’s a trade which preys upon countries, such as Nigeria that lack strict regulations.

With 15 years maximum jail term with a provision for N500,000 fine as option, the business on fakes and counterfeits is meant to to grow from strength to strength, said a Chemist who wish to remain unmentioned.

However, Dr. Paul Orhii, the current NAFDAC Director General, has brought to the job, an attractive record of an accomplished academic and experienced man. He was in the United States as a biomedical scientist with the University of Texas for 11 years. He did a doctorate in law and was practicing the trade when he got appointed as NAFDAC Chief Executive Officer. There is no gainsaying that the benefit of his knowledge in medicine and law could become instrumental for effective prosecution of war on fake and counterfeit drugs.

But the Nigeria society appears to be polarized at present, and in some cases claim to be unaware of NAFDAC proposed bill to increase the punishment for fake and counterfeit drug offence. The agency deserves to do more to carry Nigerian populace along to ensure bold supports for the bill.

Here are some reactions:

Bar Mohammed Etudaiye, Lecturer, Law Department, University of Abuja

On the increase of the punishment to life jail term or death penalty.

My own view is that effectiveness of punishment, most often is reflected in its implementation or enforcement.

In any society, 15 years imprisonment is a tough punishment for any offence. Three is no need to further increase it to life imprisonment or death sentence. I don’t see the need. Because, nowadays, the global thinking is inclined to reformative punishment. Not the kind of punishment you just catch people; dump them somewhere with soul devastating or excruciating condition called prison in Nigeria. Our prisons are mere schools for crime rather than reformation.

My own feeling is that there is a problem with those who implement punishments. Because there are sociological issue involved. If I commit a crime, and while committing and I know that even if a court tries me and sentence me to jail, I can pay someone to make life easier for me inside the prison or an official somewhere can just blot out records and I am back on the street. Then I would be emboldened to commit more of the crime. So there are issues of implementing punishment in the system. If court sentences are effectively implemented, 15 years jail term is as deterrent as any.

The only defect I see in the subsisting law is that it has an option of fine of N500,000 as alternative for the 15 years jail term. That option can now be deleted. While the victims of their guile can be compensated as well. The law could be reviewed to ensure the hands of presiding judge is strengthened to inflict mandatory punishments. The law can empower the judge to give 15 years imprisonment without an alternative of fine or whatever. Fine can be additional but not as an alternative.

On Effort of law enforcement agent to implement retributive punishment in the country:

I have an experience close to 20 years back when a policeman was trying to plant a gun in me. I don’t know what that gun was used to do, either to commit armed robbery or murder. I was already a practicing lawyer. He asked me to pick up the gun and I did not. And all he wanted was to trap my finger print on the gun. There are so many people in this country who do not have the benefit of my knowledge. And they are innocently trapped and declared as armed robbers and killed. The safe-guard are not there where you can trust the system that can administer retributive justice. As things are now, there is a very thin line between the innocents and the criminals.

On what really to build into subsisting law to serve as deterrent.

Even when you look back, at the time we just have few people on earth, Cain and Abel never behaved the same way. So it is the price we pay for living together as a community. It is good to say let us do something deterrent, but to do that, you must consider the set-ups in the society.

The government has to encourage Nigerians to move away from crime. Let there be jobs. Facilities have to be provided as an impetus to put others into gainful employment in the society. If we have electricity supply for 24 hours in this country today, so many of these boys walking around and sometime held as criminals would have more useful things doing for living.

There are issues, they are not just issues of taking those declared as criminals and then kill them. It goes beyond that. We must investigate what’s really encouraging people in the first instance to fake drugs and so on. People do not behave the same way. You may slap Jesus Christ and turn the other side of his cheeks. But it does not guarantee that if you slap Mohammed he is going to turn the other cheek. People are not just stereotype.

If you deny me the basic necessity of life and I accept it, that do not mean the man next to me would take it lying low. There are factors which propel people to commit crime; let us address those factors first before reaching out for heavy weight punishment in our legal system.

Bar Femi Wewe Esq, Lecturer, Law Department, University of Abuja

Whether he consider it appropriate to increase punishment to life jail term or death penalty.

We have been practicing death sentences for armed-robbers, murderers and other critical offences, but has armed robbery or murdering ceased in Nigeria? The answer is no. It is not the quantum of punishment; it is not the seriousness of punishment that will deter criminals. On the contrary, education is even enough to deter criminal activities.

This education would encompasses, academic, religion and other forms of education. The people are made to be aware of the consequences of each one of the acts.

The question is why are people engaged in faking drugs? The answer is simply, they want money. Just like prostitution carried out by some ladies for the sake of money. It goes also for armed robbery, hard drugs or cocaine trafficking, which are all for money.

Those involved feel that is the best way available to make easy money. Only through education, to me they can be deterred. It is not the amount of punishment the cruel urge shall be cured, but by the education that makes them to realise that the victim of their illicit trade could be their next of kin, neighbour, relation and so on.

Asked to compare the death penalty for armed robbers with limited number of victims and the punishment for fakers with inestimable victims:

I accept we can elongate their prison terms to the life jail term without option of fine, but not death penalty. The over all aim of punishment by states is turning to reformation. Retribution or just desert is growing out of fashion all over the world.

Come to think of it, what about the policy makers, people in power who corruptly enrich themselves at the expense of more inestimable number of people? How severe is the punishment for their lots in our society?

Remember when they fake drugs too, their primary aim is not to make people die. It’s more of vicarious liability we are talking about. I don’t even see how increase in the punishment shall stop people from faking drugs. They may even be more daring, emboldened, since they are aware if apprehended, they are no more.

Let there be job for the unemployed in the society for the meantime.

Bar Alasa Ismail, Legal Practitioner, Katsina

It is not a question of increasing the punishment. NAFDAC should reach out for preventive or pro-active measures to make it difficult or impossible for people to fake drugs.

The environment should be made uncomfortable for the illegal trade. For those who reformulate and in the process adulterating the drugs could be smoked out. NAFDAC should increase its intelligence unit to the extent it has a base in all the local government areas of the country.

For the fake drugs manufactured abroad and shipped into the country could be discovered if our borders are properly manned. Although, people still try to beat security provision of Berlin walls in Germany those days, but we could still do something to improve on ours.

Again NAFDAC should look inward, especially with regard to its policy of granting approval. In situation where it takes three years to obtain NAFDAC approval for manufactured drugs of standard quality, such condition breeds illicit business in a society.

Dr Joseph Ogbere; CMD, Dalhatu Specialist Hospital, Lafia

My believe do not permit me to opt for death penalty but the 15 years jail term with option for N500,000 is ridiculous. Life jail term is alright and it should go with hard labour.

Alhaji Suleiman Enesi Aliyu; Stockbroker, Lagos:

Death sentence is the only way to deter people from manufacturing and distributing fake drugs.

The purpose of engaging in such a heinous business is to make money and live to spend it. But once you know after making the money, you may be killed if caught, many people would not want to dare it.

I support whole heartedly the death penalty for fake drug offenders. They have caused so much death and maimed unsuspecting people in Nigeria.

Mr. Obiora Ezengwu, Seavoc Pharmacy, Jikwoyi, FCT:

I support death sentence to deter the fake drug offenders. It has made mess of us professionally.

The sophistication of these fake drug manufacturers is defying all mechanism and benefit of our professional knowledge.

All the Nigerians cared for is the effective law that is deterrent enough. If there is no room given for ethnicity, religious inclination or whatever, once it becomes an offence punishable by death, I am quite confident, circulation of the fake drugs shall drastically nose-dive.

Hon Elizabeth Ogbaga; Member, House of Representatives

I am in support of both life jail term or death sentences depending on the degree of ones culpability. What I mean is that, there are those that goes to manufacturers with specification, rather than say 500mg of substance; they may request that 300mg be used to prepare the drug. All that is done to reduce the cost of manufacturing the drug.

The punishment for the manufacturer and the Nigerian for instance who took the sample to the manufacturer abroad cannot be the same. The Nigerian in this case to me is more culpable and could be made to face death charges. Their acts have rendered havoc and in short, ruined many homes. We cannot shy away from the obvious. The milder the punishment, the more fake drug manufacturers are encouraged. We must settle for the appropriate measures to tackle the orgies of fake drug syndrome. You and I know that fake drug is more lethal than the “weapon of mass destruction,” which caused USA to roll out their warships, bombers and war tanks on Saddam Hussein’s Iraq.

Dr. Mohammed Suleiman, Department of Sociology, University of Abuja

The 15 years jail term sentence with the option of N500,000 fine shows no fake drug offender shall go to jail. A severe punishment which is deterrent enough is what is required to curb the excesses and daring attitude of those involved in the trade presently.

Again, I can’t opt for death sentence because it does not give room for amnesty or possibility to review the punishment if killed. You would recall too that in the seventies and eighties public executions of armed robbers and some forms of hard drug offenders were the order of that time. But that did not deter anybody from committing those crimes.

Government should however put in enabling conditions that could make illicit trade unattractive. No one would ordinarily want to engage in criminal activities, if legitimate opportunities are there. Government should therefore make employment available to the bulk of unemployed people in the country. It should also liberalise investment and economic windows to make life phesant for the larger populace.

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2 responses

18 10 2009
The SareBear

I feel that the punishment should only be determined by the effect of the drug. The manufacture of a harmless drug with no side effects should be minimal punishment. And increase, as the effects worsen.

22 11 2009
ktlarkin

I think this is going to get tougher if the health bill passes.

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