The Encroachment Of Vaccination Law On Human Rights: Legal Critique

The Encroachment Of Vaccination Law On Human Rights: Legal Critique

By ~ Meti M. Ukpeh, Esq.

 (Ama-mme Anana-owo)

ABSTRACT

Obviously, with Nigeria ravaged and swept off its feet by  corona virus, code named “COVID-19”, hence mass medical apathy becomes inevitable owing to the  uncertainties of the perceived effects of the corona virus vaccines which are basically preventive than curative remedies, the unmassaged leadership dishonesty perceived by the masses coupled with the country’s  economic woes; consequently, the masses see an attempt by some states to mandate its agencies in enforcing compulsory vaccination of the populace as an attempt to further trap the people to the dungeons of uncertainties, hence , a sheer and blatant infringement  of human rights. Thus, this paper will juxtapose human right principles with vaccination laws with particular reference to vaccination law of Akwa Ibom State, the encroachment thereof and possible recommendations. 

INTRODUCTION

Verily, it is true that since 2019 the whole universe has been ravaged and left crawling by the cold-hearted hands of Corona virus, christened as “COVID-19”, a plague against the collective health of the society; consequently, many countries have developed vaccines to curb the near-perpetual massacre of its victims, some countries have passed or enacted vaccination laws, or reactivated or supplemented its existing laws on vaccination in a bit to curb the mass loss of lives of the citizenry. Hence, Nigeria and Akwa Ibom state aren’t exceptions in legislating or reactivating its existing legislations and subsidiary legislations on vaccination of the citizens. These revelations will be evident in the course of this article.

Vaccination Law and Human Rights:

Undoubtedly, human beings have those rights which are inherent, inalienable and constitute a birth right in nature and without which we cannot function as human beings. See Universal Declaration Of Human Rights, 1948; African Charter On Human And Peoples’ Rights, 1981. See also, New Patriotic Party v. IGP Accra (2000) 2 HRLRA, 1 Sup. Ct. Ghana.

Little wonder the American Declaration of Independence emphasized thus:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their creator with certain inalienable rights, which among these are life… and the pursuit of happiness….

Consequently, respect for human rights needs to be upheld at all times, irrespective of circumstances or political systems. The right of any particular individual or group in any particular circumstances can only be restrained if they threaten to curtail similar or comparable rights of other persons; thus, human right law applies at all times and in all situations. See Article 27(2) African Charter On Human And Peoples’ Rights, 1981.  However, some human right treaties allow for certain derogations in a “State of Emergency”. Be that as it may, such emergency, when it is imperative, the law insists that any measure that would limit human rights during a state of emergency must be limited to the extent strictly required by the exigencies of the situation as consent of person, victim or patient, is of paramount consideration in global medical best practice. See UN Human Rights Committee, General Comment No.29 On Article 4, International Covenant On Civil And Political Rights, 24 July 2001.

In a quick contrast, S. 2(1) of the Vaccination Law (Cap 138. Vol.VI. Laws of Akwa Ibom State, 2000 at  page 548) provides for mandatory vaccination of every adult and children. Such a person, in the case of an adult, has seven (7) days to submit himself for vaccination or revaccination after service of notice on him of a time and place for such vaccination.

It is my view that, notwithstanding the fact that Sections 5 ,6 and 10 of the said law provide for events of small pox diseases, however the vaccination law is skeletal, but a stem upon which an off-shoot of other laws, or rules may thrive; consequently, strict compliance with  the law as couched with mandatory term, “shall” will negate and willfully jettison the place of medical consent,  fundamental right to privacy and/or dignity of human person vis-à-vis vaccination of the people against the covid-19 pandemics and other diseases. See Article 5, African Charter on Human And Peoples’ Rights, 1981. See also, Section 34, Constitution of the Federal Republic Of Nigeria, 1999l.

Section 9 provides thus: any person who fails to comply with any of the provisions of this law or willfully endeavours to deceive by false statement or otherwise, or obstructs any public vaccinator or other person in the discharge of his duties under law shall be liable on summary conviction to a fine of one thousand naira or to imprisonment for one month, and when the failure continues after conviction, to a fine of two thousand naira for each day on which such failure continues.

This is a sheer negation of the privacy of citizens, their homes, their relationship with other human beings. See the case  of Niemietz v. Germany (1992) 16 EHRR 97. While it is understandable that rights embedded under Chapter IV Of The 1999 Constitution Of Nigeria are restricted to political and civil rights which are justiciable; however, medical rights are among unjusticiable rights under our laws. See S.17 of  1999 CFRN. But these rights comfortably enjoy justiciablity and enforceability under the international law.

I make bold to say that the vaccination law is more punitive than consensual. It is a told truth that medical consent is an indispensable figure every democratic state should not erode or derogate from even in the event of “State of Emergency”. Respect for human rights needs to be upheld at all times, irrespective of circumstances or political systems.

Thus, it is my submission that vaccination for covid-19 or any other viruses or any other diseases is a matter of consent which should be first sought and obtained voluntarily from any person, victim, patient or not even at the state of emergency, except it is evidently impracticable for the person to exercise his right of choice/consent.

Also continuous recourse should be made to the HIPPOCRATIC OATH which has been universally adopted by medical personnel wherein pledge to consecrate their lives to the service of humanity; that the interest of their patients shall be their first consideration, and to give utmost respect for human life right from conception. Also, the International Code Of Medical Ethics 1949 contains the duties of medical practitioners to patients, to the society and to themselves.

Furthermore, rather than enactment or invocation of  existing vaccination laws, rules, regulations or executive orders built on mandatory or punitive terms, it is noteworthy and rewarding for the said laws or rules to be couched with qualified terms that accommodate medical consent, promote legitimacy, and command a seamless enforceability flavour with little or no deviance from the people.

 The National Health Insurance Scheme established under the National Health Insurance Scheme Act Cap N42 LFN, 2004, should be adequately made use of. This is because the NHIS is aimed at providing quality healthcare in a cost effective way and patients are offered a variety of health care options.

Consequently, citizens should be made aware of their rights to ask questions, right to second options, right to choose their preferred treatment options and a voice to complain