According to the Nigeria Center for Disease Control (NCDC), as at 27 July 2021 Nigeria has recorded 171,324 confirmed cases of COVID-19 with 2,134 deaths with a case fatality rate of 1.3% . Globally, the World Health Organization (WHO), as at 26 July 2021 reports that there have been 194,080,019 confirmed cases of the COVID-19 as well as 4,162,304 deaths. As a result of the fatality of the virus, pharmaceuticals such Pfizer, Johnson and Johnson and a host of others tasked themselves with the goal of creating a vaccine to curb the spread of the coronavirus as well as reduce the fatality of the virus.
Vaccination is one of the wonders of modern medicine. It is a simple, safe and effective way of protecting the body from harmful diseases. Vaccines have played a huge role in ensuring that the fatality of diseases such as measles, chicken pox, tuberculosis and several others have reduced significantly.
As at July 5, 2021, a total of 3,832,459 doses of the vaccine had been administered in Nigeria. Globally, a total of 3,696,135,440 doses of the COVID vaccine had been administered as at July 26, 2021. The figures are not quite impressive especially considering Nigeria’s population of over 160 million people. This has sparked debate as to whether the state can mandate compulsory vaccination of citizens and the legal implication of such compulsion. In this paper we shall consider the legality of the COVID vaccine and whether the government can mandate compulsory vaccination of its citizens while also considering the provisions certain sections in Chapter four of the 1999 Constitution.
Irrespective of how highly requested the vaccine has been, it has been met with a lot of hesitancies. This hesitancy being fueled mostly by rumours and conspiracy theories. Theories regarding the inclusion of a microchip in the vaccine, that it alters DNA, that it can be shed from one person to another, that the vaccine is causing other variants of the virus and that the vaccine has already led to a large number of deaths. These theories have led to a lot of people refusing to take the vaccine. This has led to debate as to whether taking citizens should be mandated to take the vaccine compulsorily. However, several world leaders have stated their stance on compulsory vaccination with a vast majority being against it.
President Joe Biden of the United States of America confirmed in a statement that vaccinations would not be mandatory in the United States. Similarly, the Prime Minister of the United Kingdom, Boris Johnson has also expressly stated that there would be no vaccine passports in the UK. A vaccine passport is a document attesting that the bearer has been vaccinated and is immune to that disease. If enforced, individuals would be required to present the passport before being allowed to enter certain establishments such as restaurants and bars or even travel. Germany’s Minister of Health, Jens Spahn, has also stated that there would be no compulsory vaccinations in Germany.
NIGERIA’S LEGAL POSITION ON VACCINATION
The reception in Nigeria to the COVID vaccine was not much different from the international sphere. About 3.8 million doses of the vaccine have been administered in Nigeria which is a poor figure considering Nigeria has a population of over a 160 million people. Campaigns were held to sensitize people to take the vaccine. The Director-General of the National Youth Service Corps, Brigadier General Shuaibu Ibrahim, during his nationwide virtual address to Corps Members, stated that the Corpers would not be forced to take the vaccine but he however encouraged them to make themselves available to receive the vaccine at their various camps while stressing the importance of being vaccinated.
The National Health Act, 2014, establishes a Basic Health Care Provision Fund. It provides that 20 percent of the fund be used to finance vaccines, essential drugs and consumables. On the issue of medical negligence, rule 19 Part A of the Code of Medical Ethics of Nigeria which provides that medical practitioners are required to obtain consent from their patients or their relation or authorized public authority. Failure to obtain consent before administering the vaccine would amount to medical negligence. In such a situation an injured person may bring an action in negligence against such a medical practitioner.
As it stands, there is no enabling law in Nigeria which gives employers, proprietors, or the National Youth Service Corps the power to mandate compulsory vaccination. The current position is that unless the nature of a person’s job mandates it such as frontline health workers, laboratory staff, COVID-19 rapid response team and other essential workers, such a person need not be vaccinated. The Federal Government has not mandated compulsory vaccination of Nigerian citizens. However, the only directive from the Federal Government is merely that the first phase of the COVID vaccine be issued to frontline health workers, laboratory staff, COVID-19 rapid response team, the police, among others.
Mandating citizens to get vaccinated compulsorily may run contrary to Article 8 of the European Convention on Human Rights which provides the right to private life as well as Section 37 of the Constitution of the Federal Republic of Nigeria.
Mandating compulsory vaccination raises various concerns as to whether the government has the power to mandate its citizens to be vaccinated. In as much as the government owes a duty to protect its citizens, it should also take care to ensure that in exercising this duty it does not breach the citizens’ rights as entrenched in the constitution. Nigeria has taken steps in the right direction by not mandating its citizens to be vaccinated compulsorily. It is important to note that citizens and the government owe a duty to protect the next person on grounds of public policy however, it would not be possible to mandate compulsory vaccination as people have a right to privacy and a right to decide what is best for their health.
* This paper has been prepared by Sonia Onyia, an Associate in the Law Firm of Kenna Partners. Sonia may be reached at [email protected]