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On Thursday, June 23, 2022, Nigeria’s former Deputy Senate President and a serving senator representing Enugu West Senatorial District, Ike Ekweremadu, and his wife Beatrice Ekweremadu were arrested in the United Kingdom for allegedly trafficking a young Nigerian named David Ukpo Nwamini with the intent to harvest his kidney. They were subsequently arraigned before the Uxbridge Magistrates’ Court in London on Thursday, June 30, 2022, on charges of organ transplantation.

In the hearing held on June 30, the prosecutor maintained that the victim of the alleged trafficking, David, is a 15-year-old minor and was coerced to donate his kidney. However, the case was transferred to the Westminster Magistrates’ Court in London and adjourned till July 7, 2022. This was to determine whether the case would remain in the UK or transferred to Nigeria.This is procedurally required under UK regulations because certain elements of the alleged crime occurred outside the UK.

That hearing on July 7 laid to rest the controversy concerning the age of David Nwamini, with the court and prosecution accepting that the victim is 21-year-old and not a 15-year-old minor.

15-year-old in June, 21-year-old in July: What went down?

Just a day before the July 7 hearing, the Federal High Court in Abuja ordered the National Identity Management Commission (NIMC) to transfer the Certified True Copy (CTC) of the alleged victim’s data to the Attorney General of the Federation.

The Attorney General was to subsequently ensure its transmission to the UK to aid the court proceeding. On Thursday, July 7, the new piece of evidence that states David Nwamini’s age as 21 was presented before the Westminster Magistrates’ Court presided over by Deputy Senior District Judge, Tan Ikram.Also, the Nigerian Immigration Services said that David Nwamini is 21 years old, and official documents confirm this. Details on his international passport in wide circulation on social media suggests he was born on October 12, 2000. This puts his current age at 21.

Leading Nigeria media house, Premium Times, reported Ekweremadu wrote to the United Kingdom High Commission in Nigeria to apply for David Nwamini’s visa stating the purpose of the trip, the hospital to be used, and was subsequently granted a ‘Private Medical Treatment’ visa. Thereby disputing the claims that the 21-year-old was smuggled out of Nigeria to be exploited in the UK.

After the July 7 hearing, the court ruled that the case would be tried in London. And further proceedings will commence on August 4, 2022.

Without mincing words, the trial has evoked sensations from people across all levels. Notably, in a show of solidarity, the red chamber sent a team of delegates to the UK to give moral support to the embattled senator at the hearing, among other resolutions to ensure “due process” is done in the case. However, it’s instructive to note that the law must be applied notwithstanding how people feel. The law is the law

Examining the legal issues arising from this case, the ruling on July 7 is vital. According to a statement by Metropolitan Police in London, each accused individual is “charged with conspiracy to arrange/facilitate the travel of another person with a view to exploitation, namely organ harvesting.”

In the United Kingdom, one of the relevant laws on this matter is the British Modern Slavery Act 2015; in Nigeria, the National Health Act 2014 is the extant law on organ transplantation. While the couple has denied allegations of human trafficking and organ transplantation, the counter-narrative that the Ekweremadus acted in a manner that could be construed as exploitation of David Ukpo Nwamini cannot be ignored.

A close look at British laws shows that things are not as black and white as they seem, and trouble could be brewing for the couple.

The British Modern Slavery Act 2015

The Modern Slavery Act 2015 consolidates existing human trafficking and slavery offenses and encompasses trafficking for all forms of exploitation. Section (S.) 2 of the Act provides: “a person commits an offence if the person arranges or facilitates the travel of another person (“V”), with a view to V being exploited. It is irrelevant whether the victim consents to the travel (whether V is an adult or a child).”In S. 2(3), the Act states, “a person may, in particular, arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V.”In Section 3(4) of the Modern Slavery Act, the Act defines exploitation in the above context as the removal of organs in circumstances where the victim is encouraged, required, or expected to do anything by the trafficker which involves the commission by them or another person of an offence under S. 32 or 33 of the Human Tissue Act 2004 (Prohibition of Commercial Dealings in Organs and Restrictions on use of Live Donors) as it has effect in England and Wales.

In simpler words, organ donation in exchange for a financial reward is prohibited.In S. 3(5)(6), the Act provides that securing services by force, threats, or deception to induce the victim to provide services of any kind for the benefit of another person, whether the victim is a child or an adult is tantamount to exploitation.

Careful consideration of the above provisions shows that in this case, David Nwamini’s age is utterly irrelevant; therefore, arguments about Ukpo being 15 or 21 are entirely useless. Additionally, it may not matter that the procedure was later called off. The fact that transplantation was bargained illegitimately makes a culprit run afoul of the law.

According to S. 2(2) above, it is irrelevant whether the victim consents to the travel. A mere intent to exploit or knowledge that others may exploit the victim is enough to be culpable under the Act.

With new developments on the case, it has been revealed that medical personnel and consultants at the Royal Free Hospital in East London where Ukpo was examined noticed that something didn’t feel right regarding their patient.They did not believe that the patient was the age on his document – a fear that the court has now allayed – and did not believe that he genuinely consented to donate his organ. If the latter is established in court, it will be a nail in the coffin for the Ekweremadus.

It has also been established that this treatment was meant for the daughter of senator Ekweremadu. This already satisfies one of the requirements in S. 3(5)(6) that some form of benefit arrogates to someone. Therefore if the element of “force, threats or deception” to induce the donor is proved, the court will likely find the couple guilty. Based on Section 5(1) of the Modern Slavery Act, the penalty if indicted is life imprisonment.

The National Health Act 2014

As you may expect, the law in Nigeria is not as damning. The National Health Act 2014 in S. 48(1) provides for the informed consent of a living donor. This consent may be revoked at any time preceding the organ or tissue removal.

However, S. 51 of the same Act provides that a person shall not remove tissues from a living person or carry out the transplantation of such tissue except in a hospital authorized for that purpose and on the written authority of a medical practitioner in charge of services in that hospital.

It would surprise you that this section above, when jointly read with S. 48, arguably empowers physicians to harvest organs without the consent of donors. S. 48, which provides for informed consent of living donors, has an exception clause that the donor’s consent may be waived for ‘medical investigations’ or ‘treatment in emergency cases.’ What the Act means by these phrases are not stated.

Since its enactment, there have been calls for these vague provisions to be amended to correct these illogical anomalies, yet nothing has been done. The stark differences in the provisions of the UK Modern Slavery Act 2015 and the NHA 2014 are ridiculous. With the sporadic spike in illegal organ transplantation incidents in Nigeria in the past few years, such dangerous provisions should have been long amended.

On the grounds of the loopholes and underdevelopment of the Nigerian legislations on the subject matter, it’s reasonable to submit that if Senator Ekweremadu and his wife were tried in Nigeria as against the UK, there would almost certainly be no substantial case against them – not because of their status, but because there are no similar strict laws.

Irrespective of the outcome of the court proceeding on August 4, the (un)fortunate development has successfully drawn the attention of Nigerians to the underdevelopment of the nation’s law, particularly on healthcare. Hopefully, the national assembly will address these issues with a similar impressive sense of urgency it’s demonstrating in support of Senator Ekweremadu. And Mr. President equally does not delay the assent as his custom is.

Credit: The Law Press Organisation

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