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02.05.2020 Opinion

The Legal Synthesis Of Forced Vaccination In Nigeria

By Edikan Ekanem
The Legal Synthesis Of Forced Vaccination In Nigeria
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Mr. Femi Gbajabiamila, the Speaker of the House of Representatives, in the course of discharging his statutory and legislative obligations, on Tuesday, April 28, 2020, introduced an 82 section Bill Known as “Infectious Diseases Bill, 2020” to the House of Representatives of Nigeria (Green Chambers).

The proposed Infectious Diseases Act is supposed to create a legal framework for the federal government to manage the special circumstances surrounding infectious disease outbreaks like the ongoing COVID-19 pandemic, which at last count had claim 68 lives across Nigeria.

As reported by Sahara Reporters, “what the Bill is supposed to do is to provide an updated legislative basis for the government's anti-pandemic efforts, replacing the National Quarantine Act of 2004, which many have identified as the cause of least some of the Federal Government's initial flat-footed response to COVID-19”.

Meanwhile, on May 1st, 2020 the International Centre for Investigative Reporting reported with corroborations that the said proposed Infectious Diseases Act is over 90% plagiarised from Singapore's law. What a legislative slap and embarrassment.

From a close survey, the Bill empowers the Director-General of Nigeria Centre for Disease Control (NCDC) to order forceful vaccination of Nigerians against supposed infectious diseases amongst other powers. The Bill under section 52even go-ahead to criminalise non-compliance to forced vaccination by Nigerians. This is quite sad and worrisome.

Well, for the purposes of this work, I will limit my scope to the forced vaccination of Nigerians under the proposed Act. This does not, however, mean that other parts of the Bill may not be repulsive and unconstitutional. If need be, I will on a future date give the synopsis and forensic criticism of the entire Bill.

The phrase “forced Vaccination” is distilled from Sections 47 & 48 of the proposed Infectious Diseases Act. For clarity, I replicate the relevant sections as follows:

48.—(1) “In an outbreak or a suspected outbreak of any infectious disease in any area in Nigeria, the Director General may by order direct any person or class of persons not protected or vaccinated against the disease to undergo vaccination or other prophylaxis within such period as may be specified in the order”.

48. — (3) “Any order made under subsection (1) or (2) may specify the person by whom and the manner in which the vaccination or other prophylaxis is to be carried out”.

48. — (4) “Where any order is made under subsection (1) or (2), the Director General shall cause notice of the effect of the order to be given in such a manner as he thinks necessary for bringing it to the notice of all persons who in his opinion ought to have notice thereof”.

It should be borne in mind that the word “Order” as used in the above sections is synonymous to “dictate”, “command”, “mandate” etc. It becomes more worrisome as section 52 of the Bill makes it an offence if citizens repel or do not comply with such orders. Why do you need to criminalise rejection of a particular treatment by a citizen? This is heart breaking! It is somewhat irritating and acerbic.

Section 52 states: “Any person who contravenes any provision of this Part, or fails to comply with any notice given under section 47 or order made under section 48, shall be guilty of an offence”.

From the commentaries we have read so far, it is obvious that the introduction of this Bill has a great nexus to curbing the outbreak of the deadly and dreaded COVID19 pandemic that is ravaging Nigeria and the entire globe at large.

But one wonders; how do you criminalise non-compliance to a (vaccination) treatment that is not yet in existence? Assuming there is even a global recommended and accepted vaccine by World Health Organisation, can you force citizens to take it?

THE LEGAL PERCEPTION
Ostensibly, the combine effect of sections 37 and 38 of the 1999 Constitution of Nigeria as amended which provides for the right to private and family life, right to freedom of thought, conscience and religion has shielded the individual's right to accept or reject treatment of any kind, be it a vaccine or not. Put it differently, the right to either accept or reject a vaccine is founded on sections 37 and 38 of the 1999 Constitution of Nigeria.

For clarity, Section 38 (1) states: “Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, practice and observance”.

From the above, it is unambiguous that an individual may at his own volition accept or reject any vaccine without any terrorisation, pressure or undue influence from any third party, be it a government agency or an individual as an exercise of his constitutional rights.

The Supreme Court in the case of MEDICAL AND DENTAL PRACTITIONER'S' DISCIPLINARY TRIBUNAL V OKONKWO (2001) FWLR (Pt 44) 542, interpreted the above sections when Uwaifo J.S.C held:

“I am completely satisfied that under normal circumstances, no medical doctor can forcibly proceed to apply treatment to a patient of full and sane faculty without the patient's consent, particularly if that treatment is of radical nature ... So, the doctor must ensure that there is a valid consent and that he does nothing that will amount to the trespass to the patient. Secondly, he must exercise a duty of care to advise the patient of the risk involved in the contemplated treatment and the consequences of his refusal to give consent”.

The court further held:
“Once the patient has made his choice, the doctor or hospital cannot overrule such a choice… the patient's right to object to medical treatment is founded on the fundamental right to privacy and right to freedom of thought and religion. The sum total of these rights is that an individual should be left alone to choose a course of life”...

From the foregoing analysis, it is apposite to say that sections 47,48 and 52 of the Bill is in clear contravention of sections 37 and 38 of the Constitution, thus making it void and unlawful. No medical expert can force a treatment on a patient. Please see the cases of MEDICAL AND DENTAL PRACTITIONER'S' DISCIPLINARY TRIBUNAL V EMEWULU & ANOR (2001) 3SCNJ 106; TEGA ESABUNOR & ANOR V. DR. TUNDE FAWEYA & ORS, LEPR [2019] SC.97/2009

In as much as we are not oblivious of the fact that the type of disease the Bill is seeking to regulate is “infectious” (which could endanger public safety), this does not however in any way mean a patient suffering from such disease should be forcefully vaccinated. Are there no other measures or better ways of controlling such spread, while the patient is treated the way he or she wants? Why then do we then have Infectious Diseases Hospitals and Isolation Centres all over the country?

The truth is: either from a subjective or objective examination of sections 47, 48 and 52 of the Bill, it is incurably bad and cannot pass the moral and legal refinement or test. Do you force people to treat against their wishes? What if the outcome is disastrous? This kind of practice should be abhorred at this time and age.

Beyond the above, the Infectious Diseases Bill is also contravenes the Patients' Bill of Right which provides for “Right to decline care, decline or consent to participate in medical research, experimental procedures or clinical trials”.

What more? Should human decisions vis-à-vis health treatment not be respected as enshrined in the Constitution? If this Bill is passed into law tomorrow, does it mean anyone can be taken for vaccination or clinical trial against his or her wishes because it has been “Ordered”? Who does that in this 21stcentury?

Lest we forget, there are enough legislation (legal framework) in the country to help us fight this pandemic. If you must repeal the National Quarantine Act of 2004, please pigeonhole its loopholes that forms the basis for the repeal. This is beyond the fight against COVID19, it is about our legal system and democracy.

In a nutshell, sections 47, 48 and 52 of the proposed Infectious Diseases Act is a clear contravention of the Nigerian Constitution and other extant Health Legislation in the country and on the authority of Section 1(3) of the Constitution, null and void. Forced Vaccination is vindictive and barbaric.

Assuming without conceding that this Bill is really necessary, should it be at this time, when Nigerians are suffering and struggling to eat? Should the welfare of Nigerians not have priority over law making of this kind? Well, let the scale of preference play its role to the fullest.

This is not a time for legislative charred, neither is it time to play to the gallery nor a time to operate window dressing. Let it be known that Nigerians need good feeding mechanism during this catastrophe, maximum security, quality health care and humane treatment. There is time for everything.

With this article, I vehemently oppose the proposed idea of forced vaccination and its criminal elements, as it violates the patient's Bill of Rights, Patient's fundamental and constitutional Rights and international best medical practice. These sections should be expunged from the Bill or the Bill itself withdrawn.

Thank you.
Edikan Ekanem is an Abuja based Legal Practitioner and a Columnist and can be reached via 08130015006 or [email protected]

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