Wednesday, 31st May 2023

The Illegality of COVID mandates

By Sonnie Ekwowusi
25 January 2022   |   3:06 am
Mandatory COVID vaccination, if I may reiterate for the umpteenth time, is illegal. Mandatory COVID restrictions are also illegal.

Mandatory COVID vaccination, if I may reiterate for the umpteenth time, is illegal. Mandatory COVID restrictions are also illegal.

Consequently, Nigeria should lift its COVID mandates and restrictions in order to ameliorate the economic hardships heightened by the COVID pandemic. It is preposterous that instead of scrapping or easing COVIC restrictions, the Nigerian government is toughening them. No Nigerian citizen should be deprived of anything or suffer anything or any discrimination on account of his or her refusal/failure to take the COVID vaccines. 

Under Nigerian law, the Federal Government has no right to mandate or force its citizens to be vaccinated or to do the COVID-19 PRC test. The rule of law ought to prevail at all times over arbitrary and capricious exercise of power or over a government directive. A directive not backed up by law goes to no issue and therefore should not be obeyed. Happily, the Federal Government has been dragged to court over this directive. In the same vein, I am reliably informed that some Nigerian banks and private companies have fired their staffers for failure to take the COVID-19 vaccination or PCR test. This is equally illegal and unconstitutional. The sacked workers and others are advised to seek remedy in court immediately.
If countries that had experienced or experiencing the worst COVID prevalence rate are lifting their COVID restrictions, why should Nigeria, which has successfully managed her lower COVID prevalence rate (as of December 31, 2021, Nigeria had only recorded 214,113 reported COVID cases and 2,977 COVID deaths) be toughening her COVID mandates and restrictions. Last week the UK Prime Minister, Boris Johnson, announced that starting from this week, COVID mandates deployed to fight the latest wave of the COVID pandemic-compulsory wearing of COVID face masks, mandatory COVID vaccination and other COVID protocols-will no longer be enforced in schools, public places such as night clubs in England. In Ireland, almost all COVID restrictions have been lifted.

The Irish government had announced that with effect from January 22, 2022, compulsory vaccination, recovery certificate to access hospitals, social distancing, and restrictions on numbers attending indoor and outdoor events or activities would no longer be enforced. Equally all pubs, nightclubs and restaurants can return to normal opening times (no longer must close at 8:00 pm) in Ireland. Ditto for Thailand. The Scottish government has lifted restrictions on outdoor gatherings and reopened nightclubs although the mask mandate and vaccine passport requirements are still remaining. The World Health Organization (WHO) has urged nations to lift or ease COVID-19 travel restrictions because they have proven to be of little public health value but detrimental to economic growth. Netherlands, Denmark, South Korea, Australia, Israel, Sweden, and other nations have lifted their respective COVID restrictions. In the Netherlands, the wearing of face masks has long been abandoned. Wearing a face mask is no longer compulsory in Israel and Australia.

Over the last two years, the U.S. Supreme Court has struck down some COVID mandates on the ground that they violate individual human rights. For example, in Tandon v. Newsom the U.S. The Supreme Court ruled 5-4 that the 9th Circuit should have preliminarily struck down California and Santa Clara County’s COVID-19 rule permitting only three families to gather in homes at a time. At the moment there are more than a dozen cases pending before federal courts seeking to strike down the mandate of President Biden (whose approval rating has irretrievably been sagging, even sagging to the low level of 30%) that federal employees should be vaccinated compulsorily. Specifically, on January 13, 2022, the U.S Supreme Court overturned the Biden administration’s Occupational Safety and Health Administration (OSHA) Act that required about 80 million American workers to be compulsorily vaccinated against Covid-19 or be regularly tested or masked and tested weekly for COVID. In fact, most states in the US have struck down or eased their COVID mandates. Face-mask wearing is no longer compulsory in about 40 states.

Nigeria should take the right steps in the right direction by not mandating her citizens to be vaccinated compulsorily or even forcing them to do PCR tests or to wear a mask. Of course, the temptation is high to continue to enforce the COVID mandate because it has suddenly become a money-spinning commercial venture. For example, in September 2021, the Federal Government of Nigeria received approval from the World Bank Board of Directors for a $400 million credit in additional financing for COVID-19 vaccine acquisition and deployment within the country. Nigeria’s COVID-19 Response programme was expanded to purchase affordable COVID-19 vaccines for 18 percent (40 million) of Nigeria’s population and support effective vaccine deployment to 50 percent (110 million) of its citizens.

Enough of all this gambling and experimentation with human life aimed at making quick money. Agreed, COVID-19 or Omicron should be combatted but not at the expense of human life. Since there are other effective COVID-19 prevention measures out there in the market coupled with the fact that the vaccines do not offer full-proof prevention against COVID, the government should allow the citizens to make their respective choices and avail themselves of the numerous preventive measures out there in the market. 

Relying on the case of Denloye v Medical & Dental Practitioners Disciplinary Tribunal the Nigerian Supreme Court held in the case of Medical and Dental Practitioners Disciplinary Tribunal v Dr. John Emewulu Nicholas Okonkwo (2002) AHRLR 159 that failure to extract a patient’s informed consent before administering a blood transfusion on him constituted an infraction of his fundamental human rights to privacy (section 37) and right to freedom of religion and conscience (section 38).

The Supreme Court held that the patient’s constitutional right to object to medical treatment or, particularly, as in this case, to his tissue, blood or blood products or his organ being taken away from his body is founded on fundamental rights protected in the 1999 Constitution under the (i) right to privacy: section 37; (ii) right to freedom of thought, conscience and religion: section 38. The Court further held 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 or religion implies 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… ”