Legal Implications of the COVID-19 Vaccine: A Breach of Human Rights?

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By Fowowe Adetomiwa Isaac

Introduction

It is not gainsaid that the world was caught unawares by the coronavirus (COVID-19) which consequently resulted to a global pandemic crippling almost every sphere of life. Following a desperate yearn for a cure to obviate the aftermaths of the virus, scientific research for a vaccine fortunately yielded positive. As present, there exist more than fifteen (15) vaccines authorized by the World Health Organization (WHO) for safe use.[1] The vaccine, alas, have opened gates to certain public opinions on account of its administration; some of which revolve on human rights. Accordingly, the thrust of this composition is premised on the analysis of the reality of the COVID-19 vaccine and human rights.

The Concept of Human Rights

While the concept of human rights is of essence of this writing, it is equally expedient to distinguish the difference between ‘fundamental rights’ and ‘human rights’. In brevity, fundamental rights are the basic rights of the citizens of a country. On the other hand, human rights are the universal, absolute, and moral claims that are inherent and inalienable to all individuals by virtue of their existence. In other words, the fundamental rights of humans are specific and may vary from country to country, while human rights are globally accepted rights that are and must be enjoyed by all human beings regardless of their nationality, tribe, colour and so on; without discrimination.

As a concept, human rights can broadly be defined as the basic rights of human beings that is centered on equality, fairness, freedom, and respect for all. Human rights was succinctly defined by Kayode Eso J.S.C (as he then was) in the case of Ransome Kuti & ORS v. A.G Federation & ORS (1985) 2 NWLR to be “rights that have always existed, even before orderliness prescribed rules for the manner they are to be sought”. In emphasis of its importance, it was further defined as being “a primary condition to a civilized existence” which “stands above the ordinary laws of the land”. To wit, human rights are too precious to be infringed upon without sufficient and convincing justification.

The Reality of COVID-19 Vaccine and Human Rights

In a bid to ensure an effective and mass protection of the public against the coronavirus, some country governments have enacted or are considering enacting the creation of a law as an enforcement procedure; the mandatory receipt of the COVID-19 vaccine. These laws have a general objective to get people vaccinated via the imposition of penalties such as payment of fines, loss of employment, and restriction of liberty. Premised on this, controversies have it that these laws are violations of human rights. With the purpose of addressing, this discussion would be anchored on three (3) cogent perspectives.

As a part of the grounds, human right to liberty has been observed to be violated by the making of compulsory receipt of COVID-19 vaccination laws. In this sense, persons stated by the law would be restricted in movement to public places and public transportation upon their refusal to be vaccinated. Basing this argument on the law of the United Kingdom which is synonymous to most laws in terms of human rights, it is truism that article 5 of the Human Rights Act, 1998 provides that “[e]veryone has the right to liberty and security of person. No one shall be deprived of his liberty …” Further,, section 35 of the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN) is in conformity as this provision recognises the right to liberty. However, certain exceptions to this right have been laid down by the same provisions in which article 5(e) of the Human Rights Act, 1998 states as an exception thus “the lawful detention of persons for the prevention of the spreading of infectious diseases”. As a consequence, COVID-19 being an infectious and deadly disease can rely and have the full effect of this exception in restricting the movement of persons. In addition, the Court of Appeal of Nigeria in the case of Nwafor v. EFCC (2021) LPELR – 52949 (CA) stated thus: “[T]he right to personal liberty … is not absolute and can as permitted by law be derogated from”.

Furthermore, some protests have been founded on the need to respect the human body and choice – whether or not the victim of the virus chooses to receive the vaccine. This has gone to the extent of hinging it on the right to dignity of human person entrenched in section 34 of the 1999 CFRN, article 5 of the African Charter on Human and People’s Rights, among others. The claims here are simple; the refusal to the medical treatment of COVID-19 by vaccination. In contrast, it is important to state that the course of a greater good is of more importance to public interest and order. It goes without saying that, by of the contagious nature of coronavirus, the refusal of an infected person to be vaccinated would be detrimental to the public. Hence, it is only commonsensical that such victims are vaccinated to prevent a national disaster. In support of this, the Supreme Court of Nigeria, in the case of Medical and Dental Practitioners Disciplinary Tribunal v. Okonkwo (2001) LPELR – 1856 (SC) has proven that a suit which is brought on the basis of an action done to save a life, especially the public, will fail. In this case, the court posited that although a patient has a constitutional right to object to medical treatment, the limit of these freedoms, in all cases, are when they impinge on the rights of others or where they put the welfare of society or public health.

Lastly, some mandatory vaccination laws in some countries are particularly directed at health workers which have caused protests from these persons. For instance, in France, health workers have protested against the mandatory coronavirus health pass; a consequence of which results to loss of employment by defaulters. As against the protest of this being a violation of human right of employment, a reference to the Hippocratic oath taken by health workers states thus: “I will apply, for the benefit of the sick, all measures which are required …” In other words, it is required, safe, important, and a necessary medical ethic that health workers are vaccinated for the purpose of their lives and other patients in the hospital.

Conclusion

Flowing from the aforementioned, evidently, the purpose of the COVID-19 vaccine by way of mandatory vaccination is not a breach of human rights; rather, it is an indispensable implementation for the good of the general public. An individual, in promoting his own interest, may injure the public interest; a nation, in promoting the general welfare, may check the interest of a part of its members.

Fowowe Adetomiwa is an undergraduate student at Adekunle Ajasin University Akungba-Akoko where he studies Law. He can be reached via his mail; fowowe.adetomiwa@gmail.com, and his phone number; +2349057501333.

Reference

 [1] Wikipedia, ‘List of COVID-19 Vaccine Authorizations’, <https://en.wikipedia.org/wiki/List_of_COVID-19_vaccine_authorizations> accessed 11 August 2021.

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