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Examination of the Control of Infectious Diseases Bill (2020)

19th May, 2020 at 10:30am
examination-of-the-control-of-infectious-diseases-bill-2020

INTRODUCTION

The Control of Infectious Disease Bill was introduced on the 28th day of April 2020 before the House of Representatives, which has passed its first and Second reading. The Bill is cited as a bill for an act to repeal the Quarantine Act and enact the Control of Infectious Disease Act, make provisions relating to quarantine and make regulations for preventing the introduction into and spread in Nigeria of dangerous infectious diseases and other related matters. The purpose of this article is to identify the relevance of this bill in this era of COVID-19; and examine the impact of the Bill on Nigerian Citizens, while identifying some provisions that are repugnant to natural justice.

The outbreak of the Covid-19 pandemic has necessitated a radical shift in the affairs of nations and countries all over the world.  The infectious respiratory disease which was first identified in Wuhan, China in December, 2019 currently records over 4 million infections in over 212 countries and territories of the world. On the 30th of January, 2020, the World Health Organization (W.H.O) declared the deadly disease a Public Health Emergency of International Concern and announced a name for the new coronavirus disease: COVID-19 on 11th of February, 2020.

Nigeria officially confirmed its first case of the COVID-19 disease on the 27th of February, 2020 which has now risen to over 4000 cases and over 100 deaths as at May, 2020. It is without doubt that the initiative taken by the Federal House of Representatives to introduce the Bill for an Act to Repeal the Quarantine Act and enact the Control of Infectious Diseases Bill is borne out of the measures put in place by the Federal Government to contain the spread of the pandemic within the Nation's borders.

Relevance of the Control of Infectious Diseases Bill 2020 in Nigeria.

The promulgation of a Law can serve as a preventive measure against infectious diseases by improving access to vaccination and contraceptives and by facilitating, screening, counselling and education of those at risk of infection.  Law also has a reactive role; supporting access to treatment and authorising public health authorities to reduce contact with infectious individuals and to appropriately exercise emergency powers in response to disease outbreaks. This Bill is indeed necessary for the protection of the citizens of Nigeria and intends to help the country efficiently handle infectious disease outbreaks in the future.

The 2020 Bill, amongst other things, makes provisions for the prevention of dangerous infectious diseases and the spread of such diseases in Nigeria, for the Notification of Prescribed Infectious Diseases and Declaration of the spread of such disease as a Public Health Emergency. It also contains provisions for the powers of the Director General of the Nigeria Centre for Disease Control (NCDC) as well as other measures for medical examination and treatment, post-mortem examination, surveillance and contact tracing, investigation of information from Healthcare Professionals and penalties for breach of any of the provisions of the proposed Bill. The Bill is intended to prevent people from flagrantly violating the rules and guidelines of conduct during a period like this, by going about their normal business as if they are immune to the infection.  In addition, Nigeria cannot afford a full blown pandemic as there is a dearth of health facilities, medical gadgets and personnel to contain an outbreak. Another importance of this bill is to serve as a legal backing to the already implemented directives to contain the spread of the virus presently in Nigeria.

Impact of the Control of Infectious Diseases Bill 2020.

Some commendable provisions of the bill have been considered beneficial to the members of the public in this article.  Hence, they are a welcome innovation as they will bring about some vital reformation to the Nigerian public health legislation.  For instance, Section 4 of the bill mandates Health workers to notify the Director-General promptly when a patient has the prescribed infectious disease and other necessary particulars required by the Director-General.  This is important for the safety of the general public and it criminalises the failure of the health worker to comply with the provisions of this section.

Furthermore, Section 5 provides that the Director General may institute public health surveillance programmes or undertake epidemiological investigations or survey people, animals, to determine the existence, prevalence of the likelihood of a possible outbreak of an infectious disease. It enables the country to be prepared as opposed to being caught unawares by an infectious disease that no one has the cure to.  It also helps the country curb the disease and prevent it from being a pandemic, such that its management might plunge the country into economic recession.

Section 9 makes it an offence for any individual who provides false or misleading material information to a Hospital.  The person, who violates this Law will be made to pay the fine of two million naira or sentenced to a maximum of two years imprisonment, which is really a commendable provision to curb the exploitation of this provision by some unscrupulous Nigerians. Subsection 2 describes material information as "any information directly relating to the likelihood of transmission of an infectious disease by the use of any blood or blood product". This is precise and unambiguous. It gives no room for varying interpretation by the court should a dispute arise as to the meaning of the provisions of this section.

Criticisms and Recommendations

However, in spite of its laudable inclusions, the Bill has been strongly opposed by some quarters of the public. Observations such as the legalization of the infringement on human rights and ownership of immovable properties by Nigerians are largely manifest in this 2020 Bill.  More so, a careful comparison of the Infectious Disease Bill 2020 reveals its striking similarity with the Singapore's Infectious Disease Act of 1977. Imbibing the laws of a foreign country into Nigeria, a country with a completely distinct system, is not advisable. Singapore is a country with a history of dictatorship; this explains why some sections contained in the Infectious Disease Bill 2020 seem autocratic. A bill for Nigeria should be democratic and should seek to protect the supremacy of the constitution.

Section 3 provides for the declaration of a health emergency in the manner convenient to the President. This provision should be express in providing a means by which a President of a Nation would address its citizens during a very sensitive time. It is suggested that the declaration of a health emergency should be done by the President on National Television and published in an official gazette, upon the approval of the Senate with a vote of a simple majority within 7 days and failure to obtain approval makes it void; same as the renewal where necessary. By this, the executive is not given absolute powers to decide on what affects the entire Nation without the contribution of the representatives of the various States.  Even in section 305 of the 1999 Constitution, the President is bound by the provisions of the constitution in proclaiming an emergency. The exercise of the power to declare a state of emergency, does not suspend the constitution or the judiciary as the third arm of government.

Section 6 contains provision for a mandatory medical examination or treatment of persons who are or suspected to be carriers or have contacted the infectious disease. The provision for consent before a medical examination of a person suspected to be infected or infected should be a major prerequisite for the medical examination and the medical personnel involved should perform due diligence in proffering medical advice and enlightenment before the examination. Consent is a necessity to gaining access to any part of the human body as it pertains to the rights of humans. Where consent is mandatory, it should not be done without recourse to judicial intervention.

According to World Health Organisation in its WHO Guidelines on drawing blood; best practices in phlebotomy, published in 2018, drawing of blood i.e. phlebotomy is still one of the most common invasive procedures in health care. Hence, patients' consents and cooperation are important components in respecting patients' rights. Eyal Nir stated that,

"the simplest rationale for the informed consent requirement is that, it protects study participants' and patients' health and welfare. It protects participants from investigators' overzealous attempts to promote science and personal careers, even on participants' backs and it also protects regular patients from neglectful clinicians or from overconfident but often wrong paternalistic ones"

He went further to say that the exceptions to consent include where there is lack of decision making capacity or emergency circumstances where the patients' wishes are unknown.

Section 10 of this Bill states that the Director General of Nigeria Centre for Disease Control (NCDC) may in writing require an owner of a vessel or occupier of a premise to cleanse or disinfect his vessel or premise in the manner required by the DG.  What may not be agreeable in this section is that the drafter failed to take cognisance of the fact that most Nigerians may not possess the scientific know how or possess the financial capability to effectively disinfect their premises or vessel. So what it ought to be is that the Nigeria Centre for Disease Control (NCDC) would upon the obtaining of a warrant, which would be issued within a short period of time in chambers, enter into and be responsible for the adequate disinfecting of the infected premises or vessel. Hence, the criminalising of the failure of such individual to comply with the provisions of this section may not be necessary after all.  Subsection (3) gives individuals authorised by the DG to enter the premises or vessel to which the notice relates and take or cause to be taken such measures, specified in the notice.

Some critiques believe that a court order should be obtained before the said authorities swing into action.  The recurrent use of "without warrant" was observed in the Bill.  It allows the DG or anyone authorised by him to execute acts without warrants, which is a violation of constitutionally guaranteed rights. The Bill empowers the DG to breach an individual's rights to dignity of his person, private and family life as it does not make it a necessity for a warrant to be obtained before the exercise of such power.  It is worthy of note that the world is evolving and there should come a time soon when there would be a practice direction granting judicial officers the power to issue warrants in chambers after due cause has been established by the concerned authority, specifying that it is a matter of urgency and for the interest of public safety.

Section 15 provides that the Director General can declare any premise as an isolation area for the purpose of preventing the spread or possible outbreak of an infectious disease. This provision is quite autocratic in nature and leaves in the hands of an individual the opportunity to act according to his whims and caprices. Declaration of a premise as an isolation area ought to be upon consultation with the concerned persons and adequate provisions made available, because if these persons are going to be cut off from the world, then they should be well taken care of, with their needs provided for. Where this is done, there wouldn't be cases of persons escaping from isolation.

The section mentioned in the above paragraph has also failed to provide that in any case of disease outbreak, the Government should fund the quick construction of a proper isolation centre, or the conversion of a public facility or space into an isolation centre for the time being.  This isolation centre should be fully equipped and the services of medical personnel should also be engaged. It also empowers the DG to order an arrest when an individual attempts to leave, or is suspected to have left the isolated area without a warrant. There is no provision as to whether the person in question will have access to a Legal Practitioner or he would be left in the hands of the Director-General of the Nigeria Centre for Disease Control, to determine his fate.

Section 16 of the bill provides that the Director General may order the owner or occupier of a building to abate the crowd clustered in his building.  Whereas, subsection(7)mentions that the DG can go ahead to carry out the order even while an appeal of the aggrieved person is pending with the Minister, but the proper thing to be done is that all actions be suspended until the Minister gives a final directive, which would be in line with the exercise of fair hearing.

Section 23 of the bill provides that an enforcement officer, police officer or any authorised officer may apprehend and take, any person suffering from any infectious disease that the other officer finds on any street or public place. This section does not state how the apprehension should take place as it is common amongst law enforcement agents to be extreme. It would have been ideal for the bill to state the procedure involved in this apprehension, to prevent the likelihood of inhumane treatment and the violation of section 34 of the 1999 Constitution.

Generally, Part IV of the Bill compels every Nigerian to undergo vaccination against any disease set out in the schedule of the disease.  This provision is widely vilified as no one should be sanctioned for refusing to vaccinate. The vaccination is not free and majority might not be able to afford such expense. It is therefore suggested that the vaccination mentioned in Section 46, be free and upon adequate medical advice on the need and purpose of the vaccination with the consent of the parent or guardian of the child.

Section 47 gives the DG power to direct persons to undergo vaccination and in whatever manner directed which is improper and highly autocratic, because not only can people not be forced to act, if there is need for an urgent treatment or vaccination of individuals, they should be enlightened and made to understand the level of the medical emergency, not ordered to vaccinate.  That would be a gross infringement of the rights to dignity we struggle so hard to protect.

Human rights are natural rights possessed by all human beings; they are non-transferrable and interdependent. These rights have been recognized by the international community as they have been enshrined in the provisions of the 1948 Universal Declaration of Human Rights (UDHR), International Covenants on Civil and Political Rights (ICCPR) and the African Charter on Human and People's Rights (ACHPR).  These rights have also been enacted in the various constitutions of the world, Nigeria not being an exception.

In the case of Bobade Olutide & Ors v. Adams Hamzat & Ors, Sotonye Denton-West J.C.A (P.11, Paras B-E) stated,

"Human rights are moral principles or norms that describe certain standards of human behaviour and are regularly protected as legal rights in municipal and international law. These rights are based on the belief that everyone is equal and should have the same rights and opportunities. Thereby, it is safe to say that these rights impose an obligation on all persons as human beings to respect the human rights of others.  However, these rights can be taken away though as a result of due process based on certain circumstances."

Section 45 of the 1999 Constitution provides that nothing in section 37, 38, 39, 40 and 41 of this constitution shall invalidate any law that is reasonably justifiable in a democratic society. What is intended by this section is that law makers must be cautious to the fact that the constitution did not intend that in protecting the rights of others, there should be a flagrant abuse and disregard of the right of an individual.  Therefore, in carrying out these acts, there should be due process in place that will comply with the rule of law. The World Health Organization in its consciousness of this fact, stated succinctly in its publication thus;

"where public health laws authorize interference with freedom of movement, the right to control one's health and body, privacy, and property rights, they should balance these private rights with the public health interest in an ethical and transparent way. Public health powers should be based on the principles of public health necessity, reasonable and effective means, proportionality, distributive justice, and transparency."

Section 24 is quite audacious providing for the destruction of a house or building infected. The rationale behind this provision is not really comprehended because a building or house can be adequately disinfected using the appropriate chemical, so the destruction of the infected building is not a good way to curb a spread. The building may well be a source of livelihood or life investment of an individual. It is understandable if it will be confiscated for the period of the outbreak, but there should be provision for adequate compensation to the affected persons.

The immunity clause entrenched in section 70 of the Infectious Disease Bill is of great concern. It provides that,

"No liability shall lie personally against the Director-General, any Health Officer, any Port Health Officer, any police officer or any authorised person, acting in good faith and with reasonable care, does or omits to do anything in the execution or purported execution of this Act."

This provision is unnecessary as the Director General is not the President or the Governor, and neither does his position or that of the Police Officer require the protection of the law against lawsuits. The said Director-General is a medical personnel, of whom a level of professionalism is expected. Hence, his exclusion and that of other health care providers from medical liability is a licence to high rate of medical malpractice and negligence.  As it is, Nigeria suffers from a high rate of medical negligence and the inclusion of this section does not alleviate that problem. The issue of Police brutality is a prevailing matter in the country as well, this section only serves as an escape route for officers who might have acted out of line.

Section 75 provides that the Minister has the power to exempt any individual, vessel, premises etc from the provisions of this bill which is inappropriate.  There should be provided some reasonable grounds for exemptions, it should not be left to the whims and caprices of the Minister to decide subjectively why a certain individual or premise is been exempted from compliance with the bill, this we know will only give room for bias; everybody should be equal to the Law.

Furthermore, some concerns are being raised about the interpretation section of the bill. Section 80 for instance, interpreted 'Building' to mean;

"any house, hut, shed, or roofed enclosure, whether intended for the purpose of human habitation or otherwise, and any wall, gate, post, paling, frame, hoarding, slip, dock, wharf, pier, jetty, landing-stage or bridge."

Such a broad and ambiguous interpretation of a simple term as building is bound to lead to confusions and misinterpretation. Classifying wall, gate and bridge as building is going overboard. More so, in all aspects of the interpretation of the bill, some vital terms were omitted, such as; Vaccination, Vectors, Prophylaxis etc, there is need for the addition of these interpretations to avoid any form of inference and exploitation.

Conclusion

Summarily, the Infectious Disease Bill 2020 is a good initiative, seeing that it seeks to help the country prevent and manage a pandemic outbreak of any disease. Some of the new laws contained in the Bill as stated above are reasonable, realistic and commendable. However, for a country that practices democracy, some of the provisions are autocratic and hard on the lower class who cannot afford the compulsory vaccines and disinfectants for their vessels or premise. The powers are excessive for one individual who was not elected but appointed by the executive arm of government. The continuous exercise of that excessive power is an overstretch of the executive power, which is ultra vires to the constitution and hence, void. In addition, the drafting and passing of the Bill is being rushed and major stakeholders are not consulted for their inputs such as the Director General of the Nigeria Centre for the Disease Control (NCDC).

National laws of this nature should provide for procedural safeguards which will give individuals subject to quarantine or isolation the right to seek redress or review by a court of law within a reasonable time. As a whole, the Infectious Disease Bill 2020 needs to be properly drafted to suit our diverse environment, by amending some provisions while including some necessary provisions that are democratic, unambiguous and pragmatic.

Written by: Chioma Basil Esq. and Adeiye Adenekan Esq.

Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

Mojirayo Ogunlana-Nkanga "The Control of Infectious Diseases Bill 2020 Vis-a-vis Consent, HumanRights and The Rule of Law" Cited in https://thenigerialawyer.com/they-control-of-infectious-disease-bill-2020-vis-a-vis-consent-human-rights-and-the-rule-of-law-by-mojirayo-nknga/ Published 7th May, 2020. Accessed 8th May 2020.

Worldometer cited in https://www.worldometers.info/coronavirus/Accessed 10th May 2020

World Health Organization, Rolling updates on coronavirus disease (COVID-19) updated 7th May 2020. Cited in Accessed 10 May 2020.

Nigeria Centre for Disease Control: First case of coronavirus Disease confirmed in Nigeria published Friday 28th February 2020. Cited in https://ncdc.gov.ng/news/227/first-case-of-corona-virus-disease-confirmed-in-nigeria Accessed 10th May 2020.

Quarantine Act Cap Q2 LFN 2004                  

World Health Organisation: "Advancing the rights to health: the vital rule of Law" Chapter 10: Controlling the spread of infectious diseases. Pg 153. Cited in https://www.who.int/healthsystems/topics/health-law-chapter10.pdf Accessed 10th of May, 2020.

Michael Abulu: Control of Infectious Disease Bill. Published 8th May 2020 cited in https://www.thisdaylive.com/index.php/2020/05/08/control-of-infectious-disease-bill/amp/ Accessed 10th May 2020

Section 4, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

Ibid, Section 5                                                         

Ibid, Section 9

Ibid, Section 9, Sub Section 2

Infectious Disease Act 1977 of Singapore

Tomiwa Onaleye: Controversy Trails Nigeria's Proposed Infectious Diseases Bill, but is it as bad as People Claim? Published 5th of May, 2020. Cited in https://technext.ng/2020/05/05/controversy-trails-nigerias-proposed-infectious-diseases-bill-but-is-it-as-bad-as-people-claim/ Accessed 5th of May, 2020.

Section 3, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

Section 305, Constitution of the Federal Republic of Nigeria 1999 (as amended) LFN 2004

Section 6, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

Mojirayo Ogunlana-Nkanga "The Control of Infectious Diseases Bill 2020 Vis-a-vis Consent, Human Rights and The Rule of Law"Cited in https://thenigerialawyer.com/they-control-of-infectious-disease-bill-2020-vis-a-vis-consent-human-rights-and-the-rule-of-law-by-mojirayo-nknga/ Published 7th May, 2020.  Accessed 8th May 2020.

WHO Guidelines on drawing blood: Best practices in phlebotomy. (Published in 2018) Accessed 4th of May, 2020.

Eyal, Nir, "Informed Consent", The Standard Encyclopaedia of Philosophy (Spring 2019 Edition), Edward N. Zalta (ed) Cited in https://plato.standford.edu/archives/spr2019/entries/informed-consent/ Accessed 4th of May, 2020.

Ibid. Accessed 4th of May, 2020.

Section 10, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu

Ibid, Section 10, subsection 3.

Dr. Charles Omole: Redrafted Version of the Control of Infecious Diseases Bill, 2020. Cited in Accessed 5th May, 2020.

Section 15, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

Dr. Charles Omole: Redrafted Version of the Control of Infecious Diseases Bill, 2020. Cited in Accessed 5th May, 2020.

Section 16, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

Ibid, Section 16, subsection 7

Ibid, Section 23.

Section 34, 1999 Constitution of the Federal Republic of Nigeria (as amended) LFN 2004

Dr. Charles Omole: Redrafted Version of the Control of Infectious Diseases Bill, 2020. Cited in Accessed 5th May, 2020.

Section 46 Part IV of the Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

[33]Ibid, Section 47.

ojirayo Ogunlana-Nkanga "The Control of Infectious Diseases Bill 2020 Vis-a-vis Consent, Human Rights and The Rule of Law" Cited in https://thenigerialawyer.com/they-control-of-infectious-disease-bill-2020-vis-a-vis-consent-human-rights-and-the-rule-of-law-by-mojirayo-nknga/ Published 7th May, 2020.  Accessed 8th May 2020.

Bobade Olutide & Ors v. Adams Hamzat & Ors (2016) LPELR-26047 (CA).

Section 45, Constitution of the Federal Republic of Nigeria 1999 (as amended) LFN 2004.

World Health Organisation: "Advancing the rights to health: the vital rule of Law" Chapter 10: Controlling the spread of infectious diseases. Pg 153. Cited in https://www.who.int/healthsystems/topics/health-law-chapter10.pdf  Accessed 10th of May, 2020.

Section 24, Control Of Infectious Diseases Bill 2020 ; A Bill For An Act To Repeal The Quarantine Act And Enact The Control Of Infectious Diseases Act, Make Provisions Relating To Quarantine And Make Regulations For Preventing The Introduction Into And Spread In Nigeria Of Dangerous Infectious Diseases, And For Other Related Matters. Sponsors: Rep. Femi Gbajabiamila, Rep. Pascal Obi, Rep. Tanko Sununu.

 Ibid, Section 70.

Ibid, Section 75.

Ibid, Section 80.

Dr Charles Omole: Redrafted Version of the Control of Infectious Diseases Bill, 2020. Cited in Accessed 5th of May, 2020.

ChikeOlisah: Why Nigerians, NCDC DG are opposed to the new NCDC bill. Published, 2nd of May, 2020. Cited in https://nairametrics.com/2020/05/02/why-nigerians-ncdc-dg-are-opposed-to-the-new-ncdc-bill/  Accessed 6th of May, 2020.

World Health Organisation: "Advancing the rights to health: the vital rule of Law" Chapter 10: Controlling the spread of infectious diseases. Pg 153. Cited in https://www.who.int/healthsystems/topics/health-law-chapter10.pdf  Accessed 10th of May, 2020.