AVIAN INFLUENZA CONTROL IN GHANA - A LEGAL PERSPECTIVE

Originally presented as a paper at the Association of Recognised Professional Bodies’ Seminar on Avian Flu held at the British Council Hall on 1st August 2007.

Introduction
The discovery of Avian Influenza (Bird Flu) in Ghana and attempts to control its spread has indeed thrown up some legal issues and questions. My basic thesis is that Ghana, in most cases, does not suffer from the lack of legislation on issue. What we suffer from is the lack of implementation, which means that we often forget about the existence of the law on our statute books. The result, often is that such laws remain in the original state of draft and do not see the necessary and required amendments to keep them in tune with the changing times.

The reality is that domesticated birds have been killed by the virus or culled to stem its spread. Culling is a rather exotic word, which in ordinary English means to select, collect, gather or harvest the best. However, from the nineteenth century (particularly in Australia and New Zealand), the word seems to have evolved from the idea of selecting the best animals from a herd, as a buyer of livestock might do, but then extended to slaughtering the weaker ones. The culled beasts were then the ones that had been killed. From the 1930s the word assumed a meaning employed by wildlife managers. The idea here is that a proportion of animals are killed, often the old and infirm ones, so leaving the remaining population on average fitter and of higher quality, better able to survive on the food available in the wild. In effect, the culled beasts were the ones that had been killed.

There now seems to be the general agreement that ‘cull’ is a good strong, agricultural-sounding word that has the happy additional advantage of avoiding using emotive words like kill or slaughter. So cull has shifted sense from “selection of the best” to “mass disposal”.

I have spent considerable time on defining this word because it appears to me that that is the primary if not the only mode of post-detection control of the disease in Ghana. What it means is that through no fault of the farmer, the day he wakes up to discovery of Bird Flu on his farm is the day he loses his investment for the season.

The Constitution in Articles 18 and 20 protects citizens from deprivation and invasion, respectively, of property. However, the protection under article 18 is expressed to be subject to “the interest of defence, public safety, public order, public morality, public health, town and country planning or the development or utilization of property in such manner as to promote the public benefit.” The article 20 protection is also subject to “law and as may be necessary in a free and democratic country for public safety or the economic well-being of the country, for the protection of health…” In short, the farmer’s right to keep and sell his birds is subject to laws that fit within the exceptions stated by articles 18 and 20.

National Building Regulations
Backyard poultry farms in commercial, industrial or residential areas – should be within “tolerable level” and coops should be located at a distance of not less than six metres from any habitable building or boundary wall or line of a habitable building.

Building intended for use by animals – coops should have total cubic content not exceeding 2.90m3, consent of local authorities required, no part of the building to be used for human habitation, use of fire-resisting materials, drainage approved by District Planning Authority, waste not to be discharged into open fields, etc.

Local Government Instruments
Assemblies have the function to prevent and control animal diseases, removal and destruction of dead animals, and the prohibition, restriction or regulation of the killing or same of animals.

Workmen’s Compensation Legislation
Where a workman suffers incapacity or dies from a disease due to the nature of his employment, the employer is liable to pay compensation. This is particularly applicable where the work involves contact with infested or infected animals or handling of animal carcasses.

Diseases of Animals Act
§ The Act lists specific animal diseases and provides for “any disease of an epizootic character that the Minister may… declare to be a disease within the meaning of this Act.”
§ If a disease breaks out in any district, area or place, the Minister of Agriculture is empowered to declare that place to be an infected area, and then the provision of the Act will apply to that infected area.
§ Where an area is declared to be an infected area, every owner of animals capable of suffering from the disease is required to immediately register with the nearest Agriculture Office in the district, declaring how many animals he owns and the area where the animals feed. He must also report any changes in the above circumstances. Further, no animal is allowed to enter or leave the infected area except in accordance with any directions and by such route as a veterinary authority may give or prescribe, as the case may be.
§ A owner or person in charge of an animal which dies of or suffers from a disease or which he suspects to have died of or be suffering from a disease, is required by law to immediately notify the nearest veterinary authority.
§ Until he is directed as to the disposal of the animal, the owner is required to immediately quarantine it
§ It is an offence to dispose of (sell or send away) any animals that have been in contact with the sick animal, except with the permission of the veterinary authority.
§ The veterinary authority has the power:
o “at all reasonable times” to demand the (i) production of an animal for inspection and (ii) any relevant information,
o to require any animal to be examined, inoculated, sprayed, dipped, washed, disinfected or quarantined to prevent outbreak or spread of disease,
o to disinfect or case to be disinfected any building, yard, pen, etc. where any disease has occurred,
o to destroy any fodder, fence, hedge, carcass, flesh, etc. which in his opinion is or is likely to be infected and which he considers cannot be effectively disinfected,
o to order that the hide or skin of any animal which has died of a disease be dried cured or otherwise disposed of,
o to cause any animal that has been in contact with an infected animal or carcass to be quarantined,
o to seize and detain any animal found at large and infected with a disease,
o if necessary in the interest of public health and subject to any regulations issued by the Minister, to destroy or cause to be destroyed any infected animal, and
o to issue directions and take appropriate steps regarding the disposal, movement, detention, inspection, examination, quarantining and destruction of animals.
§ An owner of an infected animal who is charged with an offence is presumed to have known of the existence of the disease unless he satisfies the court that he had no such knowledge and could not have known even with reasonable diligence.
§ Provisions are made for the appointment of veterinary guards for the prevention and detection of offences, the arrest of offenders, service and execution of summonses and warrants issued by magistrates in respect of alleged offences. Veterinary guards may arrest persons they find committing offences, without warrant, as long as they bring the arrested person before the magistrate or hand him over to the police, without unreasonable delay.
§ All public officers are authorised to take all such necessary action as the efficient execution of any of the provisions of the Act may reasonably require, and no action, suit or civil proceedings shall be brought against such person without the written consent of the Attorney-General. Under the Criminal Code, a veterinary authority or person acting under his direction cannot be prosecuted for offences arising from the exercise of their powers in the seizure, detention or destruction of any animal under the Act, except with the consent of the Attorney-General.
§ Offences under the Act are punishable by imprisonment not exceeding 6 months, or a fine or both.
§ COMPENSATION: The Minister for Finance is empowered to pay compensation out of the Consolidated Fund to any person who sustains loss by reason of any measure taken under the Act. However, there is no automatic right to compensation, and payment is based on the Minister’s discretion.
§ The exercise of this discretionary power is however regulated by article 296 of the Constitution, and the Minister is bound to act fairly and candidly, in accordance with due process of law, without arbitrariness, capriciousness or bias, resentment, prejudice or personal dislike.

From the foregoing, I submit that we have some legislative framework within which to act to regulate the spread of avian flu. But I would want to make the following suggestions for reform.

1. Education: We need to publicise these laws and educate relevant industry players
2. Enforcement: We should enforce the laws.
3. Health experts should review the laws and make proposals for any relevant amendments.
4. The National Youth Employment Programme should consider the training and hiring of veterinary guards to be hired by the government to implement the provisions of the law.
5. We should consider the sub-region in our plans and explore ways of cooperating with the relevant authorities in neighbouring countries as well as the harmonisation of relevant statutes.