By Sonnie Ekwowusi
“I wish to express my deep regret for my role in driving the National Health Act 2014 as a Permanent Secretary in the Federal Ministry of Health. At the time, I was unaware of the far-reaching implications of certain clauses, particularly those related to reproductive health. Professor Phillip Njemanze, Head of the Global Pro-life Alliance, brought this to my attention during a courtesy visit to my office, warning about the potential health consequences. Unfortunately, I dismissed his concerns, viewing them as an attempt to undermine our progress in the health sector or as mere politicking.
Now, reflecting on my actions, I realize the gravity of my oversight. If there’s an opportunity for me to share my regrets with the National Assembly and the Nigerian people through a conference or any other platform, I would seize it to clear my conscience. I believe it’s essential to acknowledge the concerns raised by various stakeholders, including Professor Njemanze, and to engage in a constructive dialogue about the Act’s implications”.
The above is a regretful open confession sent by Dr. Linus Akwute to Professor Philip Njemanze today, Sunday, 27th July 2025. As soon as Prof. Njemanze received the message, he wasted no time in forwarding it to me.
Prof. Njemanze, I, and several others vehemently opposed the National Health Bill 2014, which we believed contained vexatious and obnoxious provisions endorsing trafficking in human embryos and organs, as well as organ transplantation. Dr. Akwute, who was then a Permanent Secretary in the Federal Ministry of Health, co-chaired Nigeria’s Technical Working Group for implementing the National Health Act 2014, promoting it as a transformational reform for primary health care delivery and intergovernmental coordination. He was a strong proponent of the Act’s full implementation and often spoke publicly in its defence. In fact, Dr. Akwute positioned himself as one of the leading voices advocating for accountability and strict adherence to the policy frameworks of the National Health Act.
However, as I mentioned earlier, Dr. Akwute wrote to us today, Sunday, 27th July 2025, expressing deep regret over his role in driving the National Health Act 2014, which is now having far-reaching negative repercussions on the Nigerian health system—particularly the clauses related to “reproductive health,” a euphemism for abortion.
To refresh your memory, former President Goodluck Jonathan signed the National Health Bill (NHB) 2014 into law on October 31, 2014. It is worthwhile to briefly recall that long before the signing of the NHB 2014 into law, the Bill had been mired in serious controversy. While some stakeholders criticized it for being largely indistinguishable from the National Health Bill 2008 and the National Health Bill 2012—both of which late President Umaru Musa Yar’Adua and President Jonathan, respectively, refused to sign on grounds that they were perverse, discriminatory, inchoate, and self-serving—others faulted the NHB 2014 for violating certain provisions of the 1999 Constitution, the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10, and other international human rights instruments.
You may recall that on Monday, 11th February 2013, the Senate of the Federal Republic of Nigeria organized a Public Hearing on the National Health Bill at Room 231 of the Senate Building. The hearing was well attended by a wide array of stakeholders, including the Nigerian Medical Association (NMA), the National Association of Nigerian Nurses and Midwives (NANNM), the Association of Radiographers of Nigeria (ARN), the Nigerian Society of Physiotherapy (NSP), the Medical and Health Workers’ Union of Nigeria, the Association of Medical Laboratory Scientists of Nigeria (AMLSN), the National Association of Complementary and Alternative Medicine, the Health Reform Foundation of Nigeria, the Pharmaceutical Society of Nigeria, the Institute of Health Administrators of Nigeria, the Nigerian Physiotherapy Association, the Catholic Secretariat of Nigeria, and some Northern traditional rulers.
The Public Hearing was chaired by Senator Arthur Ifeanyi Okowa, who was then the PDP gubernatorial candidate for the 2015 Delta State election. Senator Ike Ekweremadu served as co-chair of the hearing.
Prof. Njemanze and I both submitted memoranda vehemently opposing the National Health Bill.
Prior to the commencement of the Public Hearing, Senator Okowa reassured all stakeholders that their inputs would be taken into account in the final version of the Bill to be adopted by the Senate. To his credit, Senator Okowa did give all stakeholders the opportunity to make their respective submissions. I made my presentation. Prof. Njemanze made his. I remember clearly that almost all 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.
Even representatives of the Catholic Bishops Conference of Nigeria held a closed-door meeting with then Health Minister, Prof. Onyebuchi Chukwu, to discuss the vexed provisions. The bishops strongly urged Prof. Chukwu to ensure that those offensive sections were expunged from the Bill.
At the time, Ban Ki-moon, who served as United Nations Secretary-General from 2007 to 2016, was in Abuja lobbying for the passage of the Bill, as Nigeria was reportedly designated as a depot for human parts trafficking globally. Sad
Despite Okowa’s assurances, the final version of the NHB 2014 signed by President Jonathan still contained the aforementioned offensive provisions. Specifically, Section 48(1)(b) of the National Health Act states that a person may remove tissue, blood, or a blood product from another living person without their informed consent for “medical investigation and treatment in emergency cases.” Strangely, the terms “medical investigation” and “treatment in emergency cases” were never clearly defined in the version of the Bill signed into law by ex-President Jonathan.
The implication of this is that anybody, 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. This could obviously lead to willful bodily injury or even the murder of a human being. Furthermore, it may lead to an increase in human tissue trafficking in Nigeria. Wealthy human-parts merchants in Europe and America, who trade in the tissues of living human beings in Nigeria, will now have a legal justification to perpetuate their illegal activities in Nigeria.
Section 48(2) of the NHB 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. Section 49 is ambiguously worded and could be grossly abused. It states that a person shall use tissue removed, or blood or blood products withdrawn from a living person, only for such medical or dental purposes as may be prescribed. However, 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.”
Section 48(2) permits the removal of tissue from a person over the age of 18, but the section lacks a consent clause. This implies that under the pretense of medical investigation, tissue may be removed from any adult without their informed consent.
Sections 51, 52, and 53 are even more alarming. Section 51 permits the removal of tissue or organs from a living person for transplantation into another living person, without any consent clause. The only requirement is that the removal must occur in a hospital authorized for such purposes or with the written authority of a medical practitioner in charge of clinical services. Section 52 authorizes a registered medical practitioner or dentist to carry out such procedures. 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.
The cardinal rule of statutory interpretation in Nigeria is that where the language of a statute is clear and unambiguous, the court must give effect to that meaning without inferring any other interpretation. This principle was upheld in cases such as IBWA Ltd v. Imano Ltd(1988) 3 NWLR 633 at 660 and Savannah Bank Ltd & Ors v. Ajilo & Ors (1987) 2 NWLR 421. Therefore, the language of Sections 48 and 51 of the National Health Act must be understood as written.
It is my humble view that Sections 48(1)(b), 48(2), 49, 51, 52, and 53 of the National Health Act, which permit the removal of tissue, blood, or blood products from a living person without their informed consent for “medical investigations” or “emergency treatment,” and which authorize the sale and trade of human tissues and blood products, are in violation of Sections 33 (right to life), 34 (right to dignity of the human person), 37 (right to privacy), and 38 (freedom of thought, conscience, and religion) of the 1999 Constitution, as well as Articles 2, 4, 5, 6, and 8 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10.
Under these sections of the National Health Act, a Nigerian medical practitioner or dentist could, upon receiving payment from a wealthy foreign merchant, remove tissue, blood, or an organ from a living Nigerian without that person’s informed consent for transplantation into the foreigner. This could lead to rampant cases of the theft of human tissues and organs and the sale of women’s eggs in Nigeria. It would even be legal to remove a kidney from a living Nigerian without consent and transplant it into a paying foreign recipient. Such actions would only serve to expand Nigeria’s already thriving black market in human parts.
Owing to widespread poverty, some relatives of patients, in collusion with unethical medical professionals, may begin to sell off vital body parts of their living patients without obtaining the patients’ informed consent.
Therefore, Sections 48(1)(b), 48(2), 49, 51, 52, and 53 of the National Health Act are in flagrant violation of Sections 33, 34, 37, and 38 of the 1999 Constitution, as well as Articles 2, 4, 5, 6, and 8 of the African Charter on Human and Peoples’ Rights.
It is noteworthy that among all the fundamental rights provisions in the 1999 Constitution, only those under Section 34 are granted in absolute terms. Not even a state of emergency or war permits derogation from the prohibition against torture, inhuman treatment, slavery, and servitude. While rights under Sections 37 and 38 may be curtailed under Section 45(1) in the interest of defence, public safety, order, morality, or public health, or to protect the rights of others, the non-consensual removal of tissues or organs for transplantation cannot be considered a law reasonably justifiable in a democratic society. Indeed, the continued retention of Sections 48(1)(b), 48(2), 49, 51, 52, and 53 in the National Health Act threatens to exacerbate the insecurity crisis in Nigeria.
More importantly, as I earlier noted, Sections 48(1)(b), 48(2), 49, 51, 52, and 53 of the National Health Act are inconsistent with Sections 33, 34, 37, and 38 of the 1999 Constitution, as well as Articles 2, 4, 5, 6, and 8 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap 10.
Relying on the case of Denloye v. Medical & Dental Practitioners Disciplinary Tribunal, the Nigerian Supreme Court held in Medical and Dental Practitioners Disciplinary Tribunal v. Dr. John Emewulu Nicholas Okonkwo (2002) AHRLR 159 that failure to obtain a patient’s informed consent before administering a blood transfusion constitutes a violation of the patient’s fundamental human rights to privacy (Section 37) and to freedom of religion and conscience (Section 38).
The Supreme Court held that a patient’s constitutional right to object to medical treatment—or, specifically in this case, to the removal of his tissue, blood, blood products, or organs—is rooted in the fundamental rights protected under the 1999 Constitution, namely:
- The right to privacy – Section 37;
- The right to freedom of thought, conscience, and religion – Section 38.
The Court further stated that 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, and religion, it continued, includes “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.” These freedoms are limited only when they infringe on the rights of others or threaten public welfare or health.
In sum, the rights to privacy and to freedom of thought, conscience, and religion guarantee that an individual should be left alone to choose the course of his life—unless a clear and compelling overriding state interest justifies otherwise.
Under English law, the consent of a living person to medical treatment or to the removal of any part of his body is absolutely mandatory. It is a violation of medical ethics to remove a living person’s organ without his or her consent. In fact, such a person may maintain an action in tort for damages for trespass to the person against a medical practitioner or hospital for removing tissue, blood, or any body part without consent.
See Wells v. Surrey AHA(1978). Even where consent has been obtained, it is the duty of the medical practitioner—said Justice Bristow in Chatterton v. Gerson (1980)—to explain in advance what is intended and its medical implications, in a manner consistent with what a careful and responsible doctor in similar circumstances would do. If the doctor claims that the procedure was performed in a medical emergency, the burden of proving that an emergency existed rests with him—and this may be difficult to establish.
The argument advanced by proponents of Sections 48(1)(b), 48(2), 49, 51, 52, and 53 of the National Health Act—that since the sale or trade in human parts is now a thriving business in Nigeria, it is better to regulate it than to ban it outright to ensure only authorized persons engage in it—is fundamentally flawed.
First, a society does not regulate a crime simply because it is widely committed. For instance, a society cannot regulate the heinous crime of armed robbery merely because it has become rampant.
Second, given Nigeria’s ineffective policing, weak judicial oversight, and poor regulatory enforcement, attempts to regulate the sale or trade of human parts are likely to be futile.
Third, Section 21(a) of the 1999 Constitution enjoins the State to protect, preserve, and promote Nigerian culture.
Fourth—and more importantly—under Section 4(2) of the 1999 Constitution, the National Assembly is empowered to make laws for the peace, order, and good governance of Nigeria. That means making laws that reflect the country’s social and religious realities. Trading in or selling human parts is not part of Nigerian culture.
Laws must align with the values of the people. Every country seeks to protect what it holds dear—its cherished values. It is self-destructive to import alien practices and lifestyles into Nigeria and attempt to impose them as law under the guise of fulfilling international obligations.
As Professor John Ademola Yakubu argues in his book Who Gives the Law? Determining the Jurisprudential Question, the only way to avoid chaos in a society is for the legislature to make laws that reflect the values and aspirations of the people.
It is a major scandal that in a country like Nigeria—where countless patients are dying due to lack of access to basic primary healthcare—our National Health Act is creating a leeway for trading in human tissues and organs. I do not understand why we cannot get our priorities right in this country.
Therefore, to the extent that the National Health Act is inconsistent with the 1999 Constitution, which is the supreme law of the land, it is null, void, and unenforceable. In Military Governor of Ondo State & Others v. Adewumi (1988) 3 NWLR 280, Justice Nnaemeka-Agu (of blessed memory) held that the Constitution is the grundnorm—the fundamental or organic law of the land. Similarly, in *Nafiu Rabiu v. State, Justice Udo Udoma emphasized that the Nigerian Constitution is the supreme law and must not be treated as if it were an ordinary statute passed by the legislature.
All other laws derive their validity from the Constitution. Any law that is inconsistent with the provisions of the Constitution is void to the extent of its inconsistency. Nigerian courts, in the exercise of their judicial powers, are empowered to declare any legislation of the National Assembly that contravenes the 1999 Constitution invalid and unconstitutional—whether the contravention is substantive or procedural, or whether it merely interferes with any constitutional fundamental, including guaranteed rights, federalism, or the constitutionally recognized principle 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 & Others). Also, in M.O. Oloyo v. B.A. Alegbe, Speaker, Bendel State House of Assembly (1985) 6 NCLR 61 at 80, Justice Kayode Eso stated:
“The Constitution of the Federal Republic of Nigeria 1979 is not intended to be a merely academic model Constitution. It is a pragmatic Constitution made for Nigerians, by Nigerians, and by a process of constitution-making which is expected to have benefited from the experience of this country under previous Constitutions and to provide, as much as possible, a panacea for the ills of the past.”
In light of the foregoing, urgent steps must be taken to amend the National Health Act to bring it into conformity with the 1999 Constitution. Until such an amendment is effected, the National Health Act remains unconstitutional and, therefore, unenforceable. The Federal Ministry of Health in Abuja is in dire need of reform.
In a constitutional democracy, sovereignty resides with the people. That means leaders must govern with the consent of the governed. Once that consent is absent, genuine democracy is lost. The American Founding Fathers aptly stated that:
“Governments are instituted among men, deriving their just powers from the consent of the governed.”
The Tinubu administration should be reminded that access to affordable healthcare is a constitutional right—not a privilege. By virtue of Section 17 of the 1999 Constitution, the government is duty-bound to improve the welfare of Nigerian citizens by ensuring they have access to adequate medical and health facilities. If this obligation is fulfilled, the billions of Naira wasted annually on medical tourism could be saved.
CONCLUDED
The views expressed by contributors are strictly personal and not of Law & Society Magazine.
