by Frank Tietie, Esq.
The possible legal challenges in any area of law are innumerable. Legal challenges are often viewed from the prism of the parties in any situation of conflicting interests. Therefore, legal challenges exist mainly in the area of Biosafety for both the National Biosafety Management Agency (NBMA) and members of the public, including developers and practitioners in the biotechnology industry.
These developers and practitioners, mainly corporates, are usually the applicants for the approval of licenses and permits relating to biosafety matters. Also included are the biotechnology product consumers impacted by the regulations and safety standards set by the NBMA.
The Legal Regulatory Regime of Biosafety in Nigeria
Section 1 of the National Biosafety Management Agency Act, 2015 (as amended) establishes the National Biosafety Management Agency (NBMA) as the national authority on Biosafety in Nigeria and as a corporate personality can sue and be sued.
The above implies and envisages situations where the NBMA may initiate legal proceedings as both prosecutor and claimant as the case may be, or other corporate and natural persons may institute legal proceedings against the NBMA.
Therefore, the legal and regulatory regime of Biosafety in Nigeria generally involves compliance and enforcement of standards and procedures that the NBMA Act sets by its provisions and those contained in the various regulations it had made under the Act.
The NBMA, apart from cases of breach of contract, may initiate legal proceedings for the enforcement of standards in Part VII of the NBMA Act and institute others, especially criminal proceedings, for the punishment for offences and imposition of fines under Part IX of the NBMA Act.
On the other hand, applicants for the relevant approvals to be given by the NBMA are, by the NBMA Act, placed in a position to sue the NBMA for redress by challenging any of its decisions at the Federal High Court on the following grounds: Refusal of an application and revocation or suspension of any approval it had earlier given.
Some Challenges the NBMA Would Likely Face in its Legal Regulatory Regime
- The Absence of Issuance of Pre-Action Notice
Unlike the laws establishing several other government agencies, the Nigerian National Assembly did not provide for the requirement of a Pre-Action Notice in the NBMA Act.
The usual 30 days or three months Pre-Action notice required to be served on a government agency before any legal proceedings are instituted against it usually provides ample time and opportunity to apply alternative dispute resolution mechanisms before engaging in litigations at the Federal High Court.
The implication of the above is that all aggrieved persons with any decisions of the NBMA may immediately resort to the law court if the Honourable Minister does not review complaints in their favour. This may lead to the institution of many cases, including the ones that are frivolous and needless though could have been quickly resolved by channels of public engagement by the NBMA.
- The Requirement of Due Process and Strict Procedural Compliance
The NBMA is likely to face legal challenges in the failure to strictly adhere to the procedural requirement of the NBMA Act and its regulations. The examples of the requirements of the public display of an application and public hearing in Sections 25- 26 of the NBMA Act are fundamental requirements, the failure of which can ground a severe challenge to any of its decisions or approval in court.
The Federal High Court may most likely overturn approvals or refusals of applications by the NBMA for the breach of any of the provisions of the Act or any NBMA regulations.
The difficulty in making distinctions between Acts by Natural and Artificial Persons for application of sanctions under Part IX of the Act.
Legal Hurdles in Instituting Legal Proceedings Against the NBMA
Issues of Jurisdiction- See generally the time-tested Supreme Court’s decision in MADUKOLU & ORS V. NKEMDILIM (1962) LPELR-24023(SC)
- Locus Standi
The jurisprudence of locus standi in Nigeria is still relatively strict. Therefore, busybodies, particularly activists who do not have any direct transaction with the NBMA or are not personally or directly affected by the decisions of the NBMA, cannot institute cases against it in law.
This issue of locus standi is a controversial matter as activists are likely to institute cases under the Fundamental Rights Enforcement Procedure Rules, 2009 under which human rights cases may not be struck out for want of locus standi. The latest decision of the Federal High Court in the case between the NBMA V HOMEF & 16 Ors is instructive.
- Improper Forum.
Only the Federal High Court can entertain any Biosafety-related cases. See S. 40 of the NBMA Act. Thus any suit instituted on Biosafety matters in any other Court must fail.
- Failure to Perform Conditions Precedent
Any failure to exhaust the complaints and remedial mechanisms of the NBMA Act would lead to the failure of any case instituted against it in Court. Therefore, instituting a suit against the NBMA regarding any matter under Sections 24 of 25 of the NBMA Act without first making a complaint to the Governing Board of the NBMA and/or the appropriate Minister may most likely lead to the failure of such a suit.
The scientificity of the subject of biosafety gives a near finality to the decisions of the NBMA in the exercise of its judgements and outcomes of the applications made to it. The authority of the NBMA in biosafety matters in Nigeria can hardly be questionable by the courts except where the NBMA itself fails to follow the laid down procedures in its establishment act together with the various regulations and guidelines that it has made.
Being a Presentation at a One-Day Training on Litigation and Capacity Strengthening of Lawyers on Biosafety on Thursday, 28th July 2022 at Nicon Luxury Hotel, Abuja by:
Frank Tietie, Esq., Development Law Consultant, Executive Director, Citizens Advocacy for Social & Economic Rights (CASER) & Convener, Food Avail, Nigeria- Where Technology Guarantees Food Security