THE NATIONAL HEALTH LAW: Jonathan’s controversial legacy still unresolved

Trafficking in human parts is a practice backed by law in Nigeria as you read this, courtesy of the controversial National Health Law bequeathed to Nigerians by the immediate past administration of President Goodluck Jonathan. GBUBEMI GOD’S COVENANT SNR picks up the drama from where politicians dumped it and the legal battle promised by concerned lawyers. His report.

National Health Bill controversy that raged on for the greater part of 2012 to 2015 has resurfaced in 2016. While politicians were beating the drums of Daily Times Nigeria Thursday, January 28, 2016 17 Continued on page 18 Continued on page 18 electoral war and the nation preoccupied with March 2015 election, the Daily Times authoritatively reported that then President of the Federal Republic of Nigeria, Dr. Goodluck Jonathan had hastily signed a scandalous and controversial health bill into law.

Our features desk had been alerted by Human Rights Lawyer, Sonnie Edwuowusi of the Project for Human Development PHD in Lagos and confirmed by Constitutional Lawyer, Mr. Femi Falana (SAN). The concerned lawyers had kicked against the National Health Bill (NHB) passed by the National Assembly and signed into law by President Goodluck Jonathan on December 14, 2014 – just three months before the presidential election that ousted Jonathan’s-led administration.

The contention It would be recalled that the piece of legislation permits the removal of the tissue, blood or blood products from another living person in Nigeria for (what a doctor may consider) ‘medical investigations’ and treatment in ‘emergency ‘cases – without the patient’s consent. Commenting on sections 48, 49 and 52 of the health law, Mr. Sonnie Ekwuowusi states: “The legal implication of Section 48(1) of the Act, which permits the removal of the tissue, blood or blood product from another living person ‘without his informed consent’ for ‘medical investigations’ and ‘treatment in emergency cases’ is a very dangerous piece of legislation which not only infringes on the fundamental human rights of the citizens, but is capable of fuelling the already thriving business of human and organ trafficking in Nigeria.

“Strangely enough, the interpretations of the phrases ‘medical investigation’ and treatment in ‘emergency cases’ are not provided in the Act. “This means that any doctor, even a quack – under pretext of carrying out ‘medical investigations’ or the said ‘treatment in emergency cases’ could get hold of any non-consenting living person and remove his or her tissue or blood or blood product. This obviously could lead to a willful bodily injury or murder of a human being in its true sense. “Also, Section 48(2) of the Act permits the removal of a tissue of a person who is above 18.

The section has no consent clause, meaning that anybody under the guise of medical investigation can remove the tissue of any living person who is above 18 years. “Section 51 is even more scandalous. It permits the removal of a tissue or an organ of a living person for transplantation in another living person WITHOUT ANY CONSENT CLAUSE. “The only thing it says is that the removal should be carried out at ‘a hospital authorised for that purpose’ or with ‘the written authority of a medical practitioner in charge of the clinical services…’

“The cardinal rule of interpretation of statutes in Nigeria is that where the meaning of the language used in the statutes is clear and simple, the court must give effect to that meaning without inferring any other construction to that meaning. This was the decision of the Nigerian courts in *IBWA LTD V IMANO LIMITED* (1988)3 NWLR Page 633 at 660l *SAVANNAH BANK LTD & ORS V AJILO & ORS* (1987) 2 NWLR at 421. Therefore the meaning of the language of sections 48 and 51 of the National Health Act is clear and unambiguous.”

It would be recalled also that lawyers had considered the health bill a scandal, especially because stakeholders had protested the inclusion of those clauses at the initial hearing. This is Lawyer Ekwuowusi again: “I participated in the Public Hearing and some of the meetings culminating in the making of the NHB. In those fora, stakeholders specifically raised objections against sections 48, 51 and 52 of the Act. “It is a big scandal that in a country where uncountable Nigerians are dying owing to inaccessibility to basic primary health, some Nigerian legislators are sponsoring a Bill to legalise the exploitation and trafficking in human tissues and human organs. I still don’t know why we can’t put our priorities right in this country.”

When the Daily Times contacted constitutional lawyer, Mr. Femi Falana (SAN) on the issue, he confirmed the NHB scandal. In a written reaction made available to Daily Times, Falana reviewed the NHB side by side with constitutional provisions. “Since medical doctors have been empowered to decide when to remove organs from living persons, Section 51 of the Act therefore constitutes an infringement of the rights of citizens to life, dignity of their persons as well as the rights to privacy and freedom of thought, conscience and religion guaranteed by Section 33, 34, 37 and 38 of the Constitution.

“In Medical and Dental Practitioner Disciplinary Tribunal v Okonkwo (2001) WRN 1, the Supreme Court held that a patient has the constitutional right to reject a life-saving treatment on religious ground. “In the leading judgment of the apex court, Justice Emmanuel Ayoola held inter alia: “The patient’s constitutional right to object to medical treatment or, particularly as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1979 Constitution. The right to privacy implies a right to protect one’s thought, conscience of religious belief and practice from coercive and unjustified intrusion, and one’s body from unauthorized invasion.

“The right to freedom of thought, conscience or religion, implies a right not to be prevented, without lawful justification, from choosing the course of one’s life, fashioned on what one believes in, and right not to be coerced into acting contrary to religious belief. The limits of these freedoms, as in all cases, are where they impinge on the rights of others or where they put the welfare of society or public health in jeopardy.” It is pertinent to point out that it is the donor, and not the medical doctor or manager of a hospital who has the power to authorise that an organ be removed from a living Nigerian citizen.

The definition of ‘organ’ in the law includes kidney, liver, heart, lens, ovarian eggs, and sperm. The proponents of the law are likely to refer to section 48 thereof which provided for the ‘informed consent’, but such consent ‘may be waived for medical investigations and treatment in emergency cases’. “As far as the fundamental right of a Nigerian to dignity is concerned,” Falana continued, “there can be no waiver of consent under any medical condition. Even where a patient is unconscious or incapable to give informed consent, the power is transferred to a next of kin or parent in the case of children.

“Since the consent clause may be waived for ‘medical investigation and treatment in emergency cases’ it does appear that medical practitioners and hospitals have been licensed to remove tissues and organs of living Nigerian citizens as any medical condition may be considered an emergency. In other words, Section 51 of the Act constitutes an egregious assault on the humanity of Nigerians. The provision of the law cannot be allowed to be implemented in any civilized society.

Therefore, the National Assembly should expunge it from the law without any delay.” Following the objections and submissions, the sitting Senate Health Committee at the time, led by former Senator Okowa (who is now the Delta state governor) had promised to ‘re-work the said vexed sections. The NHB is already an Act, a law of the Federal Republic of Nigeria, signed by the President in December 2014 as we speak,” Ekwuowusi told Daily Times. “The only solution now is to amend those sections that are offensive, unconstitutional and unacceptable.

“For now, we are asking Nass for those areas of the law to be amended; but if they don’t, we could challenge it in court and we intend to do so soon.” Fellow Nigerians, the bottom-line now is, for as long as the law makers procrastinate in amending the law as it stands, the ethical crime of trafficking in human parts remains a legal practice in Nigeria – until concerned lawyers take the issue before the law courts. But Daily Times investigation reveals that the former Okowa-led health committee did make changes before hurrying out of office, but the content of the change, our correspondent discovered, tantamount to another slap on Nigerians.

The concluding part of this study exposes another flaw in the NHB which permits the practice of young unsuspecting women to be exploited for their ovarian eggs to feed Invitro Vitro Fertilisation clinics in Europe and America – for a fee.