By Ukpai Ukairo, Esq.
Arguably, one of the greatest challenges of the internet era is the unlimited opportunity for all manner of persons to express opinions on any issue, and spread same across the web through diverse platforms. The distinct disadvantage is that false facts and unfounded opinions are often, easily spread as outcome of in-depth thoughts through several of the channels made available by the internet sphere. In this way people are misled and energy expended in useless pursuits because of improper reliance on false facts and unsupportable views.
No where has the above view point gained immense endorsement in recent times than in the publication by Sonnie Ekwowusi who, having the United Nations insignia as the backdrop of his portrait, wrote an article titled, A CONFESSION TOO LATE: THE SCANDAL OF NATIONAL HEALTH ACT, (NHA) 2014 published in the on-line edition of LAW AND SOCIETY Magazine and which could be accessed on https://lawandsocietymagazine.com/a-confession-too-late-the-scandal-of-nigerias-national-health-act-2014/.
I want to state, without equivocation, that the exposition in the said article does not represent, at all, the provisions of the NHA Act as will be evident hereunder. In order to amply prove the palpable distortion of the clear provisions of NHA by the author, I shall, in ex-raying the views expressed in the said article, reproduce verbatim each of the Sections of the Act he referred to, and thereafter analyze the views in the accursed article with the ipsissima verba of the law. My sole objective is to ensure that no person is misled by what is a manifest distortion of the NHA.
The author of the said article claims that he stood against the passage of the Act when the bill was being considered by the National Assembly because, according to him, he remembers “… the stakeholders present criticized Sections 48, 49, 51, 52, 53, and related provisions of the Bill, which either directly or indirectly endorsed trafficking in human embryos and organs, as well as the sale or trade in human tissues, blood, or blood products from living persons without their informed consent”.
In order to expose the audacious misrepresentations by the author on the effect of the said Sections we shall, as earlier stated, reproduce each of the sections, and then analyze them in seriatim. However, before that, let us situate the historical standing of the NHA. Without doubt, a glossary of the corpus of legislations in Nigeria will show that before the NHA there was no law tackling the very subject addressed by NHA. That subject is captured in the explanatory note to the NHA which is AN ACT TO PROVIDE THE FRAMWORK FOR THE REGULATION, DEVELOPMENT AND MANAGEMENT OF A NATIONAL HEALTH SYSTEM AND SET STANDARDS FOR RENDERING HEALTH SERVICES IN THE FEDERATION AND OTHER RELATED MATTERS.
The said explanatory note clearly sets out the mischief which the NHA sought to address and that is to establish a legal framework for the regulation of scientific developments that has converted tissue, blood and blood products as transferable products from one person to the other. It is, thus, ennobling that the National Assembly rose to the occasion to address the challenge. The Sonnie Ekwuwosis of this world and their co-travelers had no alternative legal frame work on the table except to scream, albeit falsely, that the then National Assembly was legitimizing the sale of human organ. As we shall prove hereunder that accusation was false, then and now. In the discharge of our goal hereunder, we shall apply the three well known rules of statutory interpretation, which are the Literal Rule, The Golden Rule, and The Mischief Rule which have received judicial imprimatur of approval in several cases, one of which is UMEANO & ORS V. ANAEKWE & ANOR (2022) LPELR-56855(SC).
Having made the above prefatory remarks may we proceed to deal with each of the sections in accordance with our earlier pledge.
Section 48 of the NHA provides thus:
(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 the 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 by the appropriate authority.
(2)(a) A person shall not remove tissue which is not replaceable by natural processes from a person younger than 18 years.
(b) A tissue, blood or a blood product shall not be removed from the body of another living person for purpose of merchandise, sale. or commercial purposes.
- a person who contravenes or fails to comply with the provisions of this section commits an offence and is liable on conviction in the case of—
- tissue, to a fine of =N=1,000,000 or imprisonment of not less than two years or both; and
(b) blood or blood products, to a fine of =N=I,000,000 or imprisonment for a term not exceeding one year or both.
The words and structure of the above section are very clear and brooks of no equivocation. The said Section prohibits, in clear terms, the removal of “tissue, blood or blood product” for any purpose except in circumstances therein clearly spelt out. The said section therein provides that it can only be done upon the “informed consent of the person”. The literal meaning of the said section is very clear. There cannot be any removal of the items listed without the informed consent of the person. It is, therefore, mind-blogging where the author of the article under review found the authority to assert that “a person may remove tissue, blood or blood from another living person without informed consent for medical investigation and treatment in emergency cases”.
The term informed consent is a technical word with in-depth connotation because it does not just mean the signature of the person. In all jurisdictions where the same words have been used in similar statute there is the onerous duty on health care administrators to fully explain the details of the pros and cons of the procedure. Without doubt, the need for informed consent is founded on the right to privacy and family life and freedom of conscience and religion. Accordingly, several years before the NHA the Supreme Court had held that no one can undergo a medical procedure which the person objects to: M.D.P.D.T V. OKONKWO (2001) LPELR-1856(SC). It is the view of this writer that the provision for informed consent in NHA has only strengthened the constitutionally guaranteed rights, which by itself is commendable.
As with some laws there are exceptions to the informed-consent provision. Let us, therefore, explore the exceptions in order to determine if it cancels out the absolute bar in Section 48(1)(a) of the NHA. Section 48(1)(b) of the NHA explicitly provides that consent “may be waived for medical investigations and treatment in emergency cases”. However, this subsection can only be invoked, according to Section 48(1)(c) of the NHA “in accordance with prescribed protocols by the appropriate authority”. In Section 64 of the NHA “appropriate authority’” means any other authority apart from the Minister, Commissioner, Executive Secretary, Chairmen of Boards or Agencies”. The author of the article under review did not cite the protocol issued by the appropriate authority that supports his views on the section.
There is yet another anomaly in the unsupportable view of the said author. By rule of statutory interpretation, which is not necessary to go into herein, the said subsection covers two situations:
(1) Medical Investigation in emergency cases, and
(2) Treatment in emergency cases.
The literal meaning of the above words are clear and the circumstances in medical situations, even, clearer. The legislature, in enacting the NHA, realized the danger posed in the waiver of consent in any of the two situations, and thereby quickly stated that there must be adherence to prescribed protocols by the appropriate authority.
Without doubt, the insistence on the prescribed protocol is directed at ensuring compliance with the overarching provision for informed consent. It is, however, appropriate to underscore the tragic reasoning of the author in the article under review because all he did was to concoct a non-existent scenario in order to arrive at his predetermined conclusion. How did he do this?
Suddenly, the author contends that the two situations stated in Section 48(1)(b) of NHA, when there may be waiver, are not clearly defined. This claim of lack of clarity is difficult to appreciate because medical investigations and treatment in emergency cases have very clear literal meanings. It is puzzling that an author, who is learned in law, will attribute a blurred definition to such clear words. But this is because the author was fixated on arriving at a preconceived conclusion.
The learned author, having claimed that clear English words no longer had meanings was not yet satisfied in his quest to slur the NHA. Not seeing any loophole in the NHA he invites to his platform persons who “…under the pretext of carrying out “medical investigations” or “treatment in emergency cases,” [could] waylay any non-consenting living person and forcefully remove his or her tissue, blood, or blood product”. The falsity of this assertion cries to high heavens because it is such acts of criminality that the NHA is directed at stopping. Accordingly, by the very provisions of the NHA anyone who operates under the pretext alleged by the author obviously commits a crime under the NHA and any other law.
The author of the article under review made another terrifying submission regarding Section 48 (2) of the NHA in the following words:
“Section 48(2) of the NHA 2014 states that “a person shall not remove ’tissue’ which is not replaceable by natural processes from a person younger than 18 years.” Clearly, this implies that tissue replaceable by natural processes may be removed from individuals aged 18 and above”.
This assertion, with due respect, demonstrates, an abysmal ignorance of the lexical structure of the NHA. By Section 277 of the Child Rights Act, “child” “means a person under the age of eighteen years”. Accordingly, the NHA prohibits, absolutely, removal of such parts from a person under 18 years because such a person is a child, and thus, incapable of giving the INFORMED CONSENT provided for in the overarching provision in Section 48(1)(a) of the NHA. The clear literal and purposive rules of interpretation which enjoins that statute be read holistically would have shown that for all those above 18 years informed consent is mandatory. That the author of the above view could express the opinion above is, for me, very troubling because the NHA is clear on the issue.
Section 49(1) of the NHA provides thus:
49. (1) Subject to the provision of section 52 of this Act, a person shall use tissue removed or blood or a blood product withdrawn from a living person only for such medical or dental purposes as may be prescribed.
(2) A person who contravenes or fails to comply with the provisions of this section commits an offence and liable on conviction in the case of—
(a) tissue, a fine of if =N=1,000,000 or imprisonment of not less than two years or both; and
(b) blood or blood products, a fine of =N=100,000 or imprisonment for a term not exceeding one year or both.
The above section is also very clear in its intent and purport. In Section 48(1) of NHA we have the words “…remove tissue, blood or blood product…”. In Section 49 the words are “tissue removed or blood or a blood product”. In order to understand the intent and purport of a legislation the Superior Courts have urged for a holistic reading as was done in NWOBIKE V. FRN (2021) LPELR-56670(SC)
Accordingly, a holistic reading of both Sections 48(1) and 49 reveals that the items listed in Section 48(1) of the NHA can only be used for the “purposes as may be prescribed”. This Section, therefore, prohibits the use of the items for any other purposes outside the ones for taking it from a person. The author of the article in focus claims that “the terms “tissue” and “medical or dental purposes” are not defined in the interpretation section of the Act. This means that anyone could remove any human part under the guise of fulfilling some undefined “medical or dental purpose.”. Again, this is another attempt at obfuscation of clear terms of a statute in order to arrive at a pre-conceived conclusion. This is because no person, schooled in English language, can truthfully, in the context of the NHA claim that terms like “tissue” and “medical and dental purposes” are ambiguous.
Still further, the said author invites criminal conduct as a ploy to justify his conclusions. He refers to persons who operate, under the guise of operating under the NHA and commit crimes. This brings up the question of what was the law before the enactment of the NHA because such act of deceit is pointedly one of the actions criminalized by the NHA. This is because once there is no informed consent a crime is committed and accordingly anyone who operates under the guise in a subject of criminal prosecution under the NHA.
Section 51 of the NHA provides thus:
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—
- in a hospital authorised 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 authorised by him or her; or
(ii) in the case where there is no medical practitioner in charge of the clinical services at that hospital, a medical practitioner authorised by the person in charge of the hospital.
- The medical practitioner subsection(1)(b) of this section shall not be the lead participant in a transplant for which he has granted authorization under that subsection.
- For the purpose of transplantation, there shall be an independent transplantation committee within any health establishment that engages in the act and practice of transplantation as prescribed.
In reaction to the above section the author of the article under review made the assertion thus:
“Section 51 permits the removal of tissue or organs from a living person for transplantation into another living person, without any consent clause”.
It is my humble view that Section 48(1) of the NHA applies fully to the situation in Section 51 of the NHA. The assertion that Section 51 of the NHA obliterates the informed consent provision has no support in law at all under any rules of interpretation.
The word TISSUE in Sections 48 and 51 of the NHA is directly referrable to the same item of the body. The complementarity of both sections is very clear because the informed consent provision can only be given in a hospital. All that Section 51 provides for is the institutional structure and frame work to carry out the exercise consented to. There is no way any person, schooled in the use of English Language and rules of interpretation of statute, could make the above false assertion except there is an ill-motive.
Section 52(1) of NHA provides thus:
52—( 1) Only a registered medical practitioner or dentist may remove any tissue from a living person, use tissue so removed for any of the purposes stated in this Act or transplant tissue so removed into another living person.
(2) Only a registered medical practitioner or dentist, or a person acting under the supervision or on the instructions of a medical practitioner or dentist, may administer blood or a blood product to, or prescribe blood or a blood product for, a living person.
This Section is, again, very clear and direct. A medical practitioner can only remove tissue for the purposes stated in the NHA. Accordingly, this Section only strengthens the previous provisions which have, used the word “prescribed” which in Section 64 of the Act means prescribed by regulation made under section 59 of this Act.
Section 53(1) of NHA provides thus:
- (1) It is an offence for a person—
(a) who has donated tissue, blood or a blood product to receive any form of financial or other reward for such donation, except for the reimbursement of reasonable costs incurred by him or her to provide such donation; and
(b) to sell or trade in tissue, blood, blood products except for reasonable payments made in appropriate health establishment for the procurement of tissues, blood or blood products.
(2) A person who contravenes under sub-section (1) of this section commits an offence and is liable on conviction to a fine of =N=100,000 or to imprisonment for a period not exceeding one year or to both.
The above section, once more is very clear, but again the author of the article under review chose to claim the contrary not minding the express provisions. The author of the article stated, thus, of the above section:
Section 53 permits the sale or trade of human tissues such as female egg cells, sperm, and corneas, provided that the payments made are considered “reasonable” and are conducted within an appropriate health establishment.
A literal reading of the Section shows that there is nothing in Section 53(1) that permits the sale or trade of human parts as opined by the author. Indeed, there is an absolute bar to it. The provision is a complete opposite of this contention. This tendency to misrepresent clear words of statute is a tragic of flaw that flows throughout the entire article. The words sale and trade, used by the author clearly imports the negotiation of a price, which a consideration, and the payment of same as the only conditions. A reading of Section 51 of the NHA shows that such merchandising of human parts is clearly prohibited by the NHA.
From all I have written above, it my considered view that the article in focus is a complete distortion of the provisions of the NHA. Regrettably, it appears that the author set out to clothe the article with a false authoritative aura. As evident, part of the get-up of the write-up shows the author standing in front of the United Nations Logo. The picturesque message is directed at manipulating the reader to have a thinking that an expert with a global viewpoint is writing on the subject matter. But this is false and deceitful because the author is neither an official of United Nations nor any of its numerous agencies. To deploy the status of the United Nations in such a manner is an ignoble act and further attenuates the hollowness of the article.
Having demonstrated that the author misrepresented the provisions of the NHA it is appropriate to demand the pulling down of the article. On this note one is compelled to demand that the platform on which the article was published should develop the practice of fact-checking assertions. In that way it will raise the platform as a channel for informed discourse.
From the foregoing it is obvious that the contention by the author that NHA is directed at regulating the decriminalization of the sale of body parts is clear hocus pocus. There is certainly nothing in the NHA to support the view. As we have demonstrated above the NHA criminalizes the sale of human parts.
Finally, it is, thus, clear that the NHA does not offend any section of the fundamental rights provisions of the 1999 Constitution. Such contention is false in the extreme. However, if the author believes in his contention he ought, without much ado, institute a public interest suit to challenge the NHA. This is the path of honour rather than engaging in false narrative.
Ukpai Ukairo, Esq., Ukpai Ukairo & Associates, Nde Udo Chambers, ULUE IFE, B16 Pound Road, Aba, Abia State, Nigeria.
08033382685/ukpaiukairoandassociates@yahoo.com
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
