FEDERAL HIGH COURT SET TO STRIKE DOWN INHUMAN ORGAN-HARVESTING LAW PASSED BY NASS IN 2014.

At last, a Federal High Court sitting in Abuja, barring any last minute change of Cause List, will tomorrow (Friday, 24^th July, 2016) hear a Human Rights Enforcement suit challenging the Constitutional validity of some repugnant provisions of the National Health Act, 2014 passed by the seventh National Assembly.  The sections being challenged inhumanly empowers Medical Doctors to harvest at will human vital organs like kidney, liver and the likes from a patient without the consent of the patient.

The sections being challenged are sections 48 (1) and 51 of the Act and they provide as follows;

48 (1) Subject to the provision of section 53, a person shall not remove tissue, blood or blood product from the body of another living person for any purpose except;

(a)   With the informed consent of the person from whom the tissue, blood or blood product is removed granted in prescribed manner;

(b)   That the consent clause may be waived for medical investigations and treatment in emergency cases; and

(c)    In accordance with prescribed protocols.

51 (1) A person shall not remove tissue from a living person for transplantation in another living person or carry out the transplantation of such tissue except;-

(a) in a hospital authorized for that purpose; and

(b) on the written authority of:

(i) the medical practitioner in charge of clinical services in that hospital or any other medical practitioner authorized by him or her; or

(iii) in the case where there is no medical practitioner in charge of clinical services at that hospital a medical practitioner authorized thereto by the person in charge of the hospital.

(2) The medical practitioner stated in subsection (1)(b) shall not be the lead participant in a transplant for which he has granted authorization under that subsection.

(3) For the purpose of transplantation, there shall be an independent tissue transplantation committee with any health establishment that engages in the act and practice of transplantation as prescribed.

It will be recalled that the passage of these sections of the Act in 2014 was greeted with uproar from Civil Society Groups and Human Rights Community and public opprobrium against the National Assembly and former President Jonathan, amidst allegations that the two sections were secretly sponsored by one powerful Foundation based in the United States of America whose sole business is organ-poking. Chief Femi Falana then accused the National Assembly of being heavily induced financially to pass the law empowering the dreaded cartel to cart away the vital organs of innocent Nigerians who walk into hospitals for otherwise minor ailments. He then called on the National Assembly to quickly repeal the obnoxious law or face litigation, a threat he later did not carry out and the bad law still remains.

However, an Abuja-based Human Rights Lawyer, Barrister JOHNMARY JIDEOBI, has approached the Federal High Court, through his Lead Counsel Barrister NGOZI MEDANI, to challenge the odious provisions. In the Fundamental Rights Enforcement action commenced by way of Originating Summons, the Lawyer is asking the Court presided over by Honourable Justice Abang for the determination of the following question of law;

1.       Whether having regard to the provision of section 46 (1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the Fundamental Rights of the Plaintiff to the dignity of his human person, privacy and freedom of thought and religion, protected by sections 34, 37, and 38 of the 1999 Constitution (as amended), have not been endangered and exposed to erosion by the 2^nd and 3^rd Defendants in enacting sections 48(1) and 51 of the National Health Act, 2014?

Against the answer that may be given to the above question of law, the Plaintiff claims the following reliefs from the Court;

1.       A SOLEMN DECLARATION of this Honourable Court that in enacting sections 48(1) and 51 of the National Health Act, 2014, the 2^nd and 3^rd Defendants have endangered and exposed to peril the Applicant’s Fundamental Human Rights to the dignity of his human person, privacy and freedom of thought and religion jealously guarded by the combined provisions of sections 34, 37, and 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

2.       A SOLEMN DECLARATION of this Honourable Court that sections 48(1) and 51 of the National Health Act, 2014 enacted by the 2^nd and 3^rd Defendants are void and ultra vires the legislative powers of the 2^nd and 3^rd Defendant for challenging and exposing to peril the Fundamental Rights of the Applicant as entrenched in sections 34, 37 and 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

3.       AN ORDER of this Honourable Court striking down and setting aside the provisions of sections 48(1) and 51 of the National Health Act, 2014 enacted by the 2^nd and 3^rd Defendants for constituting a grave affront on the Applicant’s Fundamental Rights to the dignity of his human person, privacy and freedom of thought and religion jealously guarded by the combined provisions of sections 34, 37 and 38 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

In the Affidavit of fact accompanying the Originating Summons, the Plaintiff/Applicant deposed, among other things, as follows;

1.       On the 8^th day of May, 2016, around 4:00pm, I visited my personal Lawyer, Nnameka Ezeani of Counsel, at his Katampe Extension residence, to intimate him about my medical condition and the decision I have reached with my Family members as to the December, 2016 surgery, whereupon he called my attention to sections 48(1) and 51 of National Health Act, 2014. He informed me as a fact and I verily believe him that:

a.       The National Health Act, 2014 was passed into law by the 2^nd and 3^rd Defendants herein.

b.      Section 48(1) and 51 of the National Health Act, 2014 empower medical doctors in designated hospitals to remove from any patient in such designated hospital for emergency purposes WITHOUT HIS CONSENT any organ (internal or external) and body tissues for use in another patient.

c.       The dignity of my human person is a right preserved by the Constitution of the Federal Republic of Nigeria and nobody can violate it.

d.      The right to freedom of thought, conscience and religion is my Fundamental Right preserved by the Constitution of the Federal Republic of Nigeria which nobody can take away from me.

e.      If the provisions of section 48(1) and 51 of the National Health Act, 2014 are not struck down by the Court to protect my Fundamental Rights, I run the risk of having my kidney or such other vital organs of my body harvested (under the pretext of emergency) when I go in for heart surgery in December, 2016 since the medical doctors will NOT NEED MY INFORMED CONSENT to embark on such.

f.        Organ harvesting is a dangerous venture that could either impact negatively on my overall health system or occasion outright death especially when I have not sanctioned it myself.

2.        I am member of Roman Catholic Church and my Catholic Faith and practice is against the harvesting of my body organ (internal or external) since it is only God who created me that equally has powers over my body organs and no human being can take away what he has not created and cannot create.

3.        I still desire to proceed, in December this year, on the medical treatment recommended for me by way of surgery for my medical wellbeing and I am mortally apprehensive as to which organ of my body might be harvested by the medical doctor who will attend to me since by sections 48(1) and 51 of the National Health Act, 2014 passed by the 2^nd and 3^rd Defendant herein, MY CONSENT WILL NOT BE NEEDED if and when such organ harvesting is deemed necessary for emergency purpose.

4.        I believe that if this Honourable Court does not swiftly intervene to protect my Fundamental Rights amply preserved by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which have come under imminent threat, sections 48(1) and 51 of the National Health Act, 2014 passed by the Defendants might destroy these cherished rights to the dignity of my human person, freedom of thought, conscience and religion and right to privacy by which time it would be too late in the day for me to apply for their enforcement.

5.        Being a Legal Practitioner, I know as a fact, that I can take proactive steps to protect these highly cherished Fundamental Rights of mine now that there is likelihood that the law made by the 1^st and 2^nd Defendant will contravene or infringe my Fundamental Rights.

In their written address in support of the Originating Summons, the Applicant argued as follows;

 “We further call the attention of this Honourable Court to the provision of section 48(1) (b) of the National Health Act, 2014 which the plaintiff has accentuated for attack and calling upon this Honourable Court to nullify. The subsection reads; “That the consent clause may be waived for medical investigations and treatment in emergency cases”. This is the gist and gravamen of the Plaintiff’s suit herein. By the above provision, the National Assembly attempts to empower medical doctors to brush aside the consent of a patient and proceed to harvest his organ at will under the vague and nebulous pretext of “medical investigations” and “treatment in emergency cases”. The Plaintiff contends that the “informed consent” of a patient can never be brushed aside or sidetracked under the Nigerian medical jurisprudence for whatever good or bad reason. The Plaintiff further contends that the Defendants in enacting the portions of the law herein impugned, exceeded the limit of the legislative powers assigned to them by the Constitution. It is the further humble submission of the Plaintiff that his fundamental rights guaranteed under sections 34, 37 and 38 Constitution have been gravely endangered by the conducts of the defendants in enacting the impugned legislation. In any case, the Constitutional provisions protecting the Plaintiff’s fundamental rights from invasion of any sort have been interpreted by the highest judicial authority in Nigeria to mean that under no circumstance should a medical practitioner proceed to tamper with a patient’s body in a manner inconsistent with his informed consent.”

Citing the decision of the Nigerian Supreme Court in the case of M.D.P.D.T. V. OKONKWO (2001) 3 S.C. 76 at 119, where it was held by Justice Uwaifo, J.S.C. that “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 a radical nature such as surgery or blood transfusion. So, the doctor must ensure that there is a valid consent and that he does nothing that will amount to a trespass to the patient. Secondly, he must exercise a duty of care to advise and inform the patient of the risks involved in the contemplated treatment and the consequences of his refusal to give consent: See Sideway v. Board of Governors of Bethlehem Royal Hospital (1985) 1 A.C 871”