Relying on the case of Denloye v Medical & Dental Practitioners Disciplinary Tribunal the Nigerian Supreme Court held in the case of Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2002) AHRLR 159 that failure to extract a patient’s informed consent before administering a blood transfusion on him constituted an infraction of his fundamental human rights to privacy (section 37) and right to freedom of religion and conscience (section 38).
The Supreme Court held that the patient’s constitutional right to object to medical treatment or, particularly, as in this case, to his tissue, blood or blood products or his organ being taken away from his body is founded on fundamental rights protected in the 1999 Constitution under the (i) right to privacy: section 37; (ii) right to freedom of thought, conscience and religion: section 38. The Court further held that the right to privacy “implies a right to protect one’s thought, conscience or religious belief and prac
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 a 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.
The sum total of the rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary…”. 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 or 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 a 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.”
Under the English Law, the consent of a living person to medical treatment or to the removal of any of his bodily parts is absolutely mandatory. In fact the person can maintain an action in tort or civil wrong for damages for trespass against his person against a medical practitioner or a hospital for removing his tissue, organ, blood or blood product or any of his bodily part without his consent. See Wells v Surrey A. H. A. E (1978). Even when consent has been obtained, it is duty of the medical practitioner, said Justice Bristow, in the case Chatterton v Gerson (1980), to explain to the person beforehand what he intends to do, and its medical implication, in the way careful and responsible doctor in similar circumstances would do. And if the medical doctor claims that he did it under a medical emergency, the onus of proving the need for an emergency is upon him, and this might be difficult to discharge.
The argument of the backers of sections 48(1) (b), 48(2), 49, 51, 52 and 53 of the National Health Act argue that since the selling of or trading in human parts has become a thriving business in Nigeria, it is preferable to regulate it rather than ban it to ensure that only authorised persons carry it out. This argument is fundamentally flawed. First: a society doesn’t regulate a crime simply because the crime is rampantly committed in that society. For example, a society cannot regulate the heinous crime of armed robbery simply because it has become rampant. Second: considering our ineffective police system, judicial checks and regulatory policies, the efforts to regulate the selling of or trading in human parts in Nigeria are efforts in futility. Third: section 21 (a) of the 1999 Constitution enjoins the State to protect, preserve and promote Nigerian culture. Fourth and more importantly, the National Assembly, by virtue of section 4(2) of the 1999 Constitution, is enjoined to make laws for the peace and good government in Nigeria, in other words, laws that conform to the social and religious realities in the country.
Therefore to the extent to which the National Health Act is inconsistent with the 1999 Constitution, which is the supreme law of the land, it is null and void and unenforceable. In Military Governor of Ondo State & Others V Adewumi (1988) 3 NWLR 280 Justice Nnaemeka-Agu (of the blessed memory) held that the Constitution is the grundnorm, the fundamental law or the organic law of the land. All laws derive their validity from the Constitution. Any law that is inconsistent with the provisions of the Constitution shall be rendered void to the extent of the inconsistency. And the Nigerian courts have the power, in exercise of their judicial powers, to declare legislation of the National Assembly that contravenes the provisions of the 1999 Constitution invalid and unconstitutional whether the contravention is substantive or procedural or whether the contravention merely interferes with any of the constitutional fundamentals including the guaranteed rights, the principles of federalism or the constitutionally recognized concept of separation of powers. (See the pronouncements of Justices Fatayi-Williams, Bello, Idigbe, Obaseki, Eso, Nnamani and Uwais in Attorney-General of Bendel State V Attorney-General of the Federation and others).
Consequently, the country’s National Health Act is overdue for immediate amendment. As I earlier stated, the National Assembly is constitutionally empowered to enact good laws for the country; laws that conform to the philosophical realities of the Nigerian people not laws that threaten national security. To that effect, the offensive sections 48(1) (b), 48(2), 49, 51, 52 and 53 should be yanked off or amended in such a way that they do not give rise to any ambiguity or create loopholes for organ trafficking or illegal organ harvesting in Nigeria.
Ekwowusi is the chairman, human and Constitutional Rights Committee of the African Bar Association.