The National Agency for Food and Drug Administration and Control, is the body officially established as an agency of the Federal Ministry of Health on January 1, 1994, to combat drug counterfeiting in the country.
Among other duties, it is to regulate and control the manufacturing, importation, exportation, advertisement, distribution, sale and use of food, drugs, cosmetics, medical devices, chemicals and packaged water.
The agency, as part of its duties, also prosecutes suspected drug counterfeiters based on the provisions of the Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provisions) Act No 25 of 1999.
However, if the essence of prosecuting offenders is to punish them for their heinous activities and to serve as deterrent to others who are considering venturing into the outlawed business, the score card of the agency shows there is still a long way to go.
With about 108 cases instituted against suspected offenders by the agency still pending in various courts across the federation, the agency can be adjudged to be alive to its duties of bringing offenders to book.
Nevertheless, record shows that the agency has performed poorly in terms of the number of convictions it has earned in its cases and the gravity of the punishment it has been able to secure against offenders in recent times.
Many of its cases ended up being struck out for one reason or the other. In other instances, the accused persons were discharged while in many others, the accused only got light sentences or made to pay a fine which they could easily part with without batting an eyelid.
Putting an end to business like drug counterfeiting, which is so lucrative for those who indulge in it, will definitely require more than a slap on the wrist which offenders of drug counterfeiting have been getting.
The manner of convictions are far cry from the weight of the offences, considering their implications on the members of the society.
Out of about 16 concluded cases instituted by NAFDAC or against it since 2007, only about five ended in conviction.
For instance, Paul Ejiofor, who was in 2010 accused by the NAFDAC of illegal importation of fake Lonart tablets and was caught at Seme border when he was bringing the substance into the country from Ghana, was eventually sentenced to four months imprisonment.
Peter Otuome, ended up with two years sentence without an option of fine for manufacturing fake “water for injection” in Anambra. Otuome was said to be selling ordinary water instead of sterile water.
Another accused, John Mbanude, charged with the importation of fake Delta soap, which he was said to be importing through Ghana was convicted but was only asked by the court to pay N500,000 as fine.
NAFDAC only succeeded in securing a six-month sentence for John Okechukwu, who was in 2008 charged with two counts of manufacturing fake Seaman Schnapp and production of the bottles for the drink at his shop in Ojo Catonment.
Aside the criminal charges it instituted against accused, NAFDAC also obtained a favourable judgment in some civil cases, some of which were challenging the exercise of certain powers of the agency. NAFDAC obtained such favourable judgment in an application by Mr. Nathaniel Nweke, who had in 2011 sought a High Court in Oyo State for a perpetual injunction restraining the agency from arresting him and ordering the closure of his water factory.
NAFDAC also won a case in which it sought the order of a Federal High Court in Lagos for an order for the closure of a fake NAFDAC website.
Another fundamental human rights enforcement suit by Mr. Felix Otunoye instituted against NAFDAC was also dismissed.
A Federal High Court in Lagos struck out the name of the agency as a defendant in a 2009 suit instituted by Ifeley Ventures Ltd seeking an order restraining NAFDAC from taking further steps towards accepting any registration certificates in respect of all or any Nivea products.
The agency also won a forfeiture suit instituted by NAFDAC in 2011 at a Federal High Court, Lagos against Oloko Waidi. The court in the a judgment, ordered the forfeiture of 5,586 canned Coca-Cola products. The goods, which had exceeded their shelf life, were seized from the owner who had absconded.
While NAFDAC might have succeeded in some of the civil cases instituted against it and those ones it initiated by itself, the agency still needs to brace up for a water-tight prosecution which can earn conviction with sentences sufficient to deter others from going into the crime.
Counterfeit and Fake Drugs and Unwholesome Processed Food (Miscellaneous Provisions) Act No 25 of 1999, in its Section 1, that anyone who “produces, imports, manufactures, sells, distributes or is in possession of; or sells or displays for the purpose of sale”, has committed an offence against the law.
The law also says, in the same section, that anyone who “ 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,” shall be punished by the law.
Section 2 of the law says any person who hawks or sells; or displays for the purpose of sale; or 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, road-side stall or in any bus, ferry or any other means of transportation, is guilty of an offence under this Decree and shall, accordingly, be punished as specified in this Decree.”
Prescribing the punishment for the above offences, the law in Section 3 says any person who commits an offence “under section 1 of this Decree, is liable on conviction to a fine not exceeding N500,000 or imprisonment for a term of not less than 5 years or more than 15 years or to both such fine and imprisonment.”
According to the law in its Section 3, anyone found to have committed the offence “under section 2(1) of this Decree, is liable on conviction to a fine not exceeding N500,000 or imprisonment for a term of not less than 2 years or to both such fine and imprisonment.”
Section 3 states further that “Where an offence under section 1 or 2 of this Decree has been committed by a body corporate, every person who at the time of the commission of the offence was a proprietor, director, general manager, secretary or other similar officer, servant or agent of the body corporate (or a person purporting to act in any such capacity), he, as well as the body corporate shall be deemed to be guilty of the offence and may be proceeded against and punished accordingly.”
On August 28, Justice Okon Abang of a Federal High Court, Lagos, sentenced a middle-aged man, Uzoma Madueke, to three years imprisonment with hard labour for importing fake Fulcin tablets into the country.
The judgment is the latest conviction NAFDAC earned against drug counterfeiters and it is one conviction with the weightiest sentence it secured in recent times.
Abang said in his judgment, “Such abnormal behaviour requires drastic action. The action of the convict is bad because there are other legitimate means to make money.
“Anybody could have been a victim of the fake drug, even the court.”
If NAFDAC must succeed in its battle against drug counterfeiting, it needs to be more thorough in its investigation and charge offenders to court only on the basis of evidence that can convince the court of the accused person’s guilt.
A judge who strongly believes an accused must be punished according to the law will not convict if weak evidence is led by the prosecution.
The agency needs to show more diligence in prosecuting its cases, and prove to the court that it is serious with its business.
The courts, on the other hand, needs to weigh the cases of drug counterfeiting, which constitute a major threat against the entire society, against the implications of only slapping a convict on the wrist.
A light sentence or mere fine will not deter such convicts to desist living a life they have found very lucrative.
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