The Constitutionality Of Disclosing The Identity Of COVID-19 Patients

By: Emerhana Onoriode Paul

The Covid-19 pandemic has no doubt created the greatest challenge to the world in the wake of the new decade. The number of deaths and patients across the globe continues to be on the increase on a daily basis.

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According to statistics from John Hopkins University, as at May 7th, 2020 251,718 people around the world have now died from COVID-19, according to data compiled by Johns Hopkins University, the USA has a total of 1,228,609 cases and 73,431 cases of death.

The global figure is already above 3.5million and over 250,000 cases of death. While the figures are moving southwards in some countries, other countries, especially in Africa, are now having their figures of cases and death moving north.

The figures changes with every movement of the minute hand of the clock. The sad reality is the fall of the global economy, job losses and general recession. Mr. Donald Trump, for example, talks himself up as ‘wartime president’ to lead America through a crisis.

He believes the pandemic is an invincible enemy that must be defeated. According to Siddharth Chatterjee, the United Nations Resident Coordinator to Kenya, many soldiers have seen first-hand the horrors of war and, terrifying though it often was, they knew who they were fighting, and could recognize their enemy.

The COVID-19 or the new Corona Virus disease is different. In this virus, we have an enemy which is invisible and sometimes deadly, and the task is harder. The health workers are the frontline soldiers and they deserve to be protected.

The Director-General of the Nigeria Centre for Disease Control (NCDC), Dr. Chikwe Ihekweazu recently while taking questions from journalists during the regular briefing, noted that he cannot direct the patients to go public about their experiences unless they elected to do so.

The reason that many have advanced to justify the non-disclosure of the identity of patients of COVID-19 is the doctrine of medical confidentiality (secrecy).

The medical secrecy doctrine is one of the foundations of medical ethics and medical employees’ moral obligations, and it refers to the principle of not disclosing confidential information about the patient.

Hippocrates considered the obligation to keep a medical secret to be the “sacred duty” of a physician. The medical secret was initially cultivated as ‘the know-how to remain silent’ as it soon becomes a legal duty that would be sanctioned according to criminal law.

There is however mounting concerns between privacy and confidentiality of the patients who tested positive for COVID-19 and the public health safety of other members of the society in difficult times like this.

The present writer believes that observing the Covid-19 protocols alone may not lead to the end of the pandemic in Nigeria. There is need to make the identity of the victims of the Covid-19 public.

The reason is to help in contact-tracing and isolation especially bearing in mind the fluid nature of our communities. Section 1(1) of the Amended Constitution of Federal Republic of Nigeria, 2011 provides that the Constitution is supreme and shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. Section 1(3) provides that if any other law is inconsistent with the provisions of this constitution, the constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

Section 14 (2) (b) provides that the security and welfare of the people shall be the primary purpose of government.

One of the key components of welfare is public health. Section 37 of the Constitution provides for the Right to private and family life. The argument for justification by the proponents of non disclosure of the patients’ identities, rest their argument on this section.

However, even the Constitution itself, our supreme law, provides that no right is absolute in itself! Section 45(1) provides for the restriction on and derogation from these fundamental rights.

It provides that nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society: (a) in the interest of defense, public safety, public order, public morality and public health; or (b) for the purpose of protecting the rights and freedom of other persons.

A community reading of these provisions of the constitution herein cited are clear on the constitutionality of the disclosure of the victims of the pandemic. Firstly, there is no professional ethics or law enacted by the National Assembly that can be above the constitution.

The constitution of the Federal Republic of Nigeria is an organic instrument and the grundnorm of Nigerian law. It’s supremacy is clearly stated in Section 1 and 3. Musa v. INEC (2002) 11 NWLR (Pt. 778) 223; F.R.N. v. Osahon (2006) 5 NWLR (Pt. 973) 361; Turkur v. Gov., Gongola State (1989) 4 NWLR (Pt.117) 517; Abacha v. Fawehinmi (2000) 6 NWLR (Pt. 660) 228. Secondly, the right to privacy as provided for in Section 37 is not absolute.

Public health challenges now facing the country as anticipated in Section 45(1)(a) and the need to protect the rights and freedom of others as provided in Section 45(1)(b) of the Constitution erects exceptions to the enjoyment of the right to privacy.

The right of privacy of the less than 500 individuals who are positive for Coronavirus cannot supersede the rights of the over 175 million Nigerians because of the lone argument of stigmatization. COVID – 19 is none discriminatory.

It affects the rich and the poor, the young and the old. This defeats the argument of stigmatization. The pandemic has invaded both the high and the low in society.

The British Prime Minister, Mr. Boris Johnson, and HRH, Prince Charles, the Prince of Wales, are amongst the biggest victims of the stray bullets of the virus. In Nigeria, the Chief of Staff to the President, Mr. Abba Kyari, the Governor of Kaduna State, Mallam Nasir El-Rufai, the Governor of Oyo State, Mr. Seyi Makinde and the Bauchi State Governor, Mr. Bala Mohammed are some of the victims of the pandemic.

Renowned news anchor, Mr. Chris Cuomo of the CNN has become the most visible face of the coronavirus in the United States by giving daily updates about his condition. He did the same on April 14, 2020 when he interviewed the Governor of Connecticut and his colleague Sanjay Gupta.

Other television stars (Andy Cohen) and household names (Tom Hanks) have contracted the virus… there are more than I can list at this point. Italy, Spain and the United Kingdom have continued to release information of the dead fromCOVID-19 on national dailies and satellite TV. There is therefore need to depart from the hard ethic of medical secrecy to one aimed at serving the greater good of society founded on the constitution.

It is important that the Federal and State Governments take steps towards deploying more resources to the NCDC, the Ministry of Information and the National Orientation Agency (NOA), to drive the sensitization aimed at demystifying the mysteries, myths and monstrosities about the stigmatization of the virus.

I respectfully submit that releasing the details of the patients of the virus in Nigeria will greatly help in enforcing the stay at home order, reduce the spread of the virus and facilitate effective contact -tracing.

The earlier we tame the virus, the better for Nigeria and like the President of Nigeria, Mohammadu Buhari noted in his April 13, 2020 address, “it is not a joke, it is a matter of life and death.”