COMPULSORY COVID-19 VACCINATIONS UNCONSTITUTIONAL – SAMMY GYAMFI PROOFS WITH FACTS
It does appear that my public opposition and condemnation of the directive issued by the Ghana Health Service and the Ghana Airport Company that seeks to impose mandatory vaccination restrictions on the right of entry into Ghana of citizens, has stirred up the hornet’s nest. That is understandable given the considerable public interest in the matter of forced vaccinations. After, a careful and objective consideration of the contrived justifications being mounted by some for compulsory COVID-19 vaccination restrictions on the right of entry into Ghana, I am fortified in my belief that same is unconstitutional, illegal and unjustifiable, as the directive is neither supported by law nor the science of COVID-19. 1. Article 12 of the 1992 Constitution enjoins the Executive, Legislature, Judiciary and all other organs of government and its agencies to respect and uphold the fundamental human rights and freedoms provided under Chapter five (5) of the 1992 Constitution. 2. Article 21(1)(g) of the 1992 Constitution expressly guarantees the freedom of movement of all persons in Ghana, which means the right to move freely in Ghana, the right to leave or to enter Ghana and immunity from expulsion from Ghana. 3. As a lawyer, I know that the fundamental human rights and freedoms provided under Chapter five (5) of the Constitution are not absolute but subject to certain exceptions or conditions. Clause 4 of article 21 of the Constitution allows for the imposition of certain restrictions on freedom of movement. However, it is clear from the terms of Article 21(4) of the Constitution, that the freedom of entry into Ghana of a citizen of Ghana is not one that is or can be subject to the imposition of restrictions by a law. Per Section 2(1) of the Imposition of Restrictions Act (Act 1012) 2020, only the restrictions specified under Article 21(4)(c)(d)(e) of the Constitution can be imposed by the President through an Executive Instrument. 4. Article 21(4)(c) of the Constitution provides for the imposition of restrictions that are reasonably required for defence, Public safety, Public health or the running of essential services, on the freedom of movement and residence within Ghana of all persons (including citizens). Note that this provision relates only to the imposition of restrictions on the freedom of movement and residence within Ghana and not the right of entry into Ghana by citizens. 5. Article 21(4)(d) of the Constitution provides for the imposition of restrictions on the freedom of entry into Ghana or movement in Ghana of a person who is not a Citizen of Ghana. It is thus clear from the provisions of Article 21(4)(c)(d)(e) that the Constitution has not provided for the restriction of the freedom of entry into Ghana of a citizen. It is therefore right to say, that only the right of entry into Ghana of non-citizens can be reasonably restricted by law as provided under Article 21(4)(c). The new directive by the Ghana Airport company which seeks to impose a restriction (compulsory vaccination) on the freedom of entry into Ghana of citizens is patently unconstitutional, hence null and void. There is no constitutional justification whatsoever for same and I challenge anyone who holds a contrary view to adduce evidence of any such provision in the Constitution. 6. The claim that the Public Health Act, 2012 (Act 851) provides for Public vaccination and compulsory vaccination is true but not absolute as same is subject to three (3) exceptions, all of which are present in the instant case of mandatory COVID-19 vaccinations. A full reading of sections 21, 22 and 25 of the Public Health Act, 2012 shows that Public vaccination and the power of the Health Minister to make an order for compulsory vaccination is not at large, but subject to specific conditions. 7. Specifically, Section 21 of the Public Health Act exempts and prohibits Public vaccination in a situation where a person has natural immunity to a disease or a vaccine would be injurious to health. 8. With regards to section 22 of Act 851 which provides for compulsory vaccination, note that compulsory vaccination can only be done upon the issuance of an Executive Instrument by the Health Minister, which per my checks at the Assembly Press has not been done in the instant case of compulsory COVID-19 vaccination for travelers leaving or coming to Ghana. Also, per section 22, the Health Minister’s power to order compulsory vaccination is not absolute as cases where the vaccine is determined by the Public vaccinator to be injurious to health are exempted. Note, that the exercise of the discretion given to a Public vaccinator to determine whether or not a vaccine “would be injurious to health” is governed by Article 296 of the 1992 Constitution and therefore ought to be exercised in a fair and candid manner and not capriciously or arbitrarily. This is trite legal learning. 9. Additionally, section 25 of the Public Health Act, 2012 (Act 851) which provides for “Power of Entry for vaccination” by a Public vaccinator does not apply to situations where a person has natural immunity to a disease or in cases where the vaccine would be injurious to health. 10. I wish to state for emphasis, that there is no law in Ghana that gives government an unconditional right or power to forcefully vaccinate people even during a Public Health Emergency as government is seeking to do. Any Executive Instrument issued by the Health Minister ordering compulsory vaccination must comply with the conditions and exceptions provided under section 21, 22 and 25 of the Public Health Act, 2012 (Act 851). Even in cases where a law may be passed to impose restrictions on the freedom of movement or residence within Ghana on grounds of Public health or safety, such restrictions must be reasonable as provided by Article 21(4)(c). And the test of reasonability is objective and not subjective. 11. Again, there is no law in Ghana that gives government the right or power to deny a citizen of Ghana entry into Ghana if he or she refuses to be injected with a vaccine. Not even section 22 of the Public Health Act, (Act 851) 2012, contemplates, envisages and provides for that remedy. Subsection (2) of section 22 provides that an Executive Instrument issued by the Minister of Health ordering compulsory vaccination may prescribe “at what age a person is liable to a penalty for non-compliance”. And I submit that the penalty or remedy for non-compliance to compulsory vaccination by a citizen of Ghana cannot be denial of entry into Ghana as same will violate Article 21(1)(g) and 21(4)(d) of the 1992 Constitution. 12. More importantly, based on the totality of the legal and scientific evidence available, I strongly contend that compulsory COVID-19 vaccinations is not reasonable for the following reasons: A) None of the six (6) COVID-19 vaccines that are being forced on Ghanaians have been approved by the Food and Drugs Authority of Ghana. I) Information published on the website of the FDA on 28th October, 2021 indicates that none of the six COVID-19 vaccines have been registered or approved in Ghana by the FDA as required by section 118 of the Public Health Act, (Act 851) 2012. The FDA has only given Emergency Use Authorization (EUA) to six (6) unregistered/unapproved vaccines namely: Sputnik V, Covishield, Johnson & Johnson, Pfizer, Moderna and AstraZeneca. II) At page 7, paragraph 3.2 of the FDA’s Guidelines for Emergency Use Authorization of Medical Products issued on 15th March, 2019 (Version No.: 01), Emergency Use Authorization is provided when “an unregistered medical product can be authorized for use during a declared public health emergency involving heightened risk of affliction or attack on the health, safety and security of the general public. The FDA continues to say that, that these (EUA) medical “products and their uses are not approved or cleared or registered under section 118 of the Public Health Act (Act 851)”. II) Also, at page 20, paragraph 4.11.2 of the above-mentioned FDA’s guidelines, the Food and Drug Authority of Ghana “recommends that: * recipients be given as much appropriate information as possible given the nature of the emergency and the conditions of the authorization”. * And that, “recipients must have an opportunity to accept or refuse the Emergency Authorized Product”. * “Recipients also must be informed of available alternatives to the product and of their risks and benefits. * Also the Authority recommends, written information be given to recipients in the simplest language possible and that same should “include the significant known and potential risks and benefits of the product and the extent to which the potential risks and benefits are unknown”. See https://www.fdaghana.gov.gh › …PDFGuidelines for emergency use authorization of medical products It glaringly clear from the foregoing, that the directives by the Ghana Health Service and the Ghana Airport Company seeking to impose mandatory COVID-19 vaccinations on all persons traveling to or out of Ghana violates the FDA’s own guidelines. I wonder if my critics will describe the FDA as an “anti-vax or conspiracy theorist” institution since their rules proscribe forced vaccinations relative to medical products or vaccines that have only been given Emergency Used Authorization and not approved or registered. B) The unregistered/unapproved COVID -19 vaccines have proven to be significantly ineffective. (I) All the earlier claims and narratives that suggested that COVID-19 vaccines prevent one from getting the virus and reduce the rate of transmission of the virus, the rate of severe illness or hospitalizations and deaths have been found to be false and revised accordingly. It has been scientifically established that fully vaccinated persons can still be infected by the virus (breakthrough infections) and can be severely ill of the breakthrough infection, hospitalized and even die. The number one advocate of COVID-19 vaccines, Dr. Anthony Fauci, Chief Medical Advisor the President of the USA has said that hospitalization among fully vaccinated persons in the US has reached significant levels. See https://www.nbcnews.com/health/health-news/hospitalizations-rising-fully-vaccinated-us-fauci-says-rcna5907. Also, the UK Prime Minister, Borris Johnson has publicly stated that fully vaccinated people can be infected by the omicron variant and infect other people. II) Also, data from a scientific study conducted by Lancet Europe, one of the World’s most oldest and internationally reputable medical agencies, and published on 1st December 2021, show that vaccinated people spread the virus more than unvaccinated people. See https://www.thelancet.com/journals/lanepe/article/PIIS2666-7762(21)00258-1/fulltext III) Additionally, the National Center for Biotechnology Information (NCBI), a Public Institution that is part of the United States National Library of Medicine, a branch of the National Institute of Health has published a scientific research report that indicates that countries and counties with higher vaccination rates such as Israel (60%), Portugal (75), Iceland (75%) among others, have higher COVID-19 positive cases per one million people than countries such as Vietnam (10%), South Africa (10%) among others with relatively lower vaccination rates. See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8481107/ IV) It is a notorious fact that the first case of the early cases of omicron infection in the US and other countries were found mostly in fully vaccinated people. https://www.reuters.com › world › usMost reported U.S. Omicron cases have hit the fully vaccinated -CDC | Reuters In short, the totality of available scientific data shows that the unregistered COVID-19 vaccines have proven to be ineffective in reducing the rate of COVID-19 infections or transmissions. Why then must people be forced to take so-called vaccines that have not been approved by the FDA of Ghana and has largely proven ineffective relative to its intended purpose? C) The unregistered COVID-19 vaccines have proven to be significantly unsafe. I) As I have already indicated, the FDA’s EUA guidelines indicates clearly, that none of the COVID-19 vaccines have been approved or registered. In other words, the FDA has not concluded its study, research and/or investigations into COVID-19 vaccines and do not have sufficient data on their efficacy and safety. This is why they have not yet approved the vaccines. II) COVID-19 vaccines such as the Pfizer vaccine, have been found to pose several serious adverse effects ranging from Nervous system, respiratory, Cardiac, psychiatric, musculoskeletal, vascular, blood disorders and even deaths or fatalities. The first batch of documents released by the Food and Drug Administration (FDA) of the US related to Pfizer’s Covid-19 vaccine after a federal judge ordered that they must comply with a Freedom of Information Act (FOIA) request that was filed by a government accountability group called Public Health and Medical Professionals for Transparency, titled Cumulative Analysis of Post-Authorization Adverse Event Records Reports, shows that in just the first 90 days of the vaccine’s roll out under the FDA’s EUA – from December 1st. 2020 – February 28th, 2021 – there were over 42,086 case reports of Adverse reactions and 1,223 deaths. Note that this is only the 500 pages of 329,000 pages of documents that the FDA of USA is yet to release. As a matter of fact, while it took the the US FDA 108 days to approve the Pfizer vaccine after it was given EUA, the US FDA is demanding for 55 years to release the same data that informed their decision to license Pfizer vaccine. III) Also, the WHO’s own data published on their VigiAccess.org Portal shows a total of over 2.6 million reports of Adverse Drugs Reactions to COVID-19. This number is very alarming as it is far higher than the total Adverse Drugs reactions of all vaccines ever produced in the history of the world over the entire duration that they have been administered. It should be clear to any objective mind, that given the fact that the COVID-19 vaccines have not be approved or registered, the Food and Drugs Authority cannot vouch for its safety. It is therefore unlawful, unreasonable and unconscionable to compel rationale human beings to take unapproved vaccines that may be injurious to their health, lest they lose their right of entry into Ghana and other civil liberties and fundamental freedoms guaranteed by the Constitution of Ghana. D) What is even worse, is that the manufacturers of the unregistered COVID-19 vaccines have been indemnified by governments across the world including Ghana against any legal suits arising out of any Adverse Drug Reactions or any form of liabilities, including willful misconduct on their part. This begs the question as to why our government will force us to take unapproved vaccines that its manufacturers are not ready to accept responsibility for. If the vaccines are safe, why is Pfizer, Moderna and the other manufacturers insisting on indemnification as a pre-condition for the supply of the vaccine? I salute the Indian government for rejecting the Pfizer and Moderna vaccines on grounds of this unconscionable indemnification conditionality among others, even in the midst of heightened and widespread COVID-19 positive cases. See https://www.reuters.com/world/india/india-govt-wont-buy-pfizer-moderna-vaccines-amid-local-output-sources-2021-09-21/ E) Further more, the compulsory vaccination directives issued by the Ghana Health Service and the Ghana Airport company do not take into cognizance peculiar underlying medical conditions or contraindications that may make the vaccines unsafe for some groups. In medicine, contraindication refers to a condition that serve as a reason not to take a certain medical treatment due to harm that it will cause the patient. However, the compulsory vaccination directives for travelers issued by the Ghana Health Service and the Ghana Airport Company do not make provision for any contraindications. For instance, save persons below 18 years of Age, no exemptions are made in the directive of the Ghana Health Service for people with severely immunocompromised health status, such as people with cancer receiving chemotherapy, people with HIV infection, people on long-term steroid therapy, people with advanced diabetes among others. Neither the FDA of Ghana or the Ghana Health Service has published any data or information on the impact of COVID-19 vaccines on people with some of these special conditions. This makes the wholesale compulsory vaccination for all persons above 18 years of Age unlawful and unreasonable. The evidence show that these unregistered vaccines may be injurious to the health of people with certain underlying medical conditions. (F) Again, the compulsory vaccination directive by the Ghana Airport Company and the Ghana Health service does not take into consideration people who have developed natural immunity to the COVID-19 disease and hence exempted from Public Vaccination and/or Compulsory vaccination as stipulated by Sections 21 and 25 of the Public Health Act, 2012. The Public Health Act, 2012 of Ghana is very clear, that persons with natural immunity to a disease cannot be forcefully vaccinated for that disease. Whereas, natural immunity is acquired from exposure to the disease organism through infection with the actual disease, Vaccine-induced immunity is acquired through the introduction of a killed or weakened form of the disease organism through vaccination. Either way, if an immune person comes into contact with that disease in the future, their immune system will recognize it and immediately produce the antibodies needed to fight it. Active immunity has been found to be long-lasting, and sometimes life-long. Studies from Public Health England (PHE) suggest that antibodies from people who had recovered from COVID-19 gave at least 83% immunity against re-infection. Due to this, hospitals in Michigan, now allows employees to opt out of vaccination if they present evidence of previous infection and a positive antibody test in the previous three months. See https://www.detroitnews.com/story/news/local/michigan/2021/09/09/spectrum-health-workers-can-use-natural-immunity-vaccine-mandate-exemption/8262491002/ and a publication by Medscape, one of the most authoritative sources of medical information in the world has corroborated this. https://www.medscape.com/viewarticle/960533 There have been scientific studies in Isreal, where Anonymized Electronic Medical Records (EMRs) were retrieved from MHS’ centralized computerized database for the study period of March 1, 2020 to August 14, 2021. MHS which is a 2.5-million-member, state-mandated, non-for-profit, second largest health fund in Israel, which covers 26% of the population and provides a representative sample of the Israeli population demonstrated that natural immunity confers longer lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant of SARS. The research uncovered that SARS-CoV-2-naïve vaccinees or people who had received the Pfizer Covid vaccines for the first time had a 13.06-fold increased risk of being infected again with the Delta variant compared to those previously infected who had developed natural immunity. See https://www.medrxiv.org/content/10.1101/2021.08.24.21262415v1 G) Finally, it is an incontrovertible fact, that trials and investigations into the efficacy and safety of COVID-19 vaccines have not been concluded by the FDA of Ghana. This why the vaccines have only be given EUA and not approved by the FDA. Therefore forcing people to take these unapproved vaccines which are still being investigated amounts to conducting scientific experiments on human beings without their informed consent. This is a clear violation of the Patients Charter provided under the Sixth Schedule of the Public Health Act, (Act 851) 2012 and all known medical ethics. CONCLUSION It is against the backdrop of the above-enumerated issues that I insist that the directives issued by the Ghana Health Service and the Ghana Airport Company that seek to impose mandatory vaccination on the right of entry into Ghana is unconstitutional, illegal, unreasonable and therefore unacceptable. For the avoidance of doubt, I am not against COVID-19 vaccinations per se. I believe that those who voluntarily opt to take the COVID-19 should be allowed to do so. What I am against is the unlawful imposition of restrictions (compulsory COVID-19 vaccination) on the constitutionally guaranteed freedom of entry into Ghana, particularly of citizens. What I am against, is the unlawful decision to forcefully vaccinate all persons traveling into or out of Ghana including citizens with an unapproved, ineffective and unsafe vaccine. No country in Africa has adopted this tyrannical compulsory vaccination approach to restrict the right of entry or freedoms of their people like we are witnessing in Ghana. In fact, I am yet to find any country in the world that has imposed compulsory vaccination restrictions on the right of entry of its own citizens. Even South Africa that is reported to have recorded about 3.1 million positive cases with over 90,000 deaths has rejected COVID-19 vaccine mandates. The President of South Africa, H.E Cyril Ramaphosa in an address to the South African nation few weeks ago assured all persons in South Africa that no one will be forced to take any COVID-19 vaccine against their will and that, those who refuse to take the vaccines will not suffer any punishment or discrimination or impediments to their rights and freedoms. Brazil has done same. This is the kind of responsible leadership we need in Ghana and not the leadership that is quick to to sacrifice the rights and freedoms of its people for financial aid that comes with compulsory vaccination conditionalities under the guise of public health. To those who are sincerely interested in knowing the truth about these issues, do not believe everything and anything you are told hook, line and sinker. Don’t be deceived by the uniformed advise or recommendations of officials or persons who hold big titles, most of whom are ignorant about some of these issues. Do your own study so you can make an informed choice for yourself. For knowledge they say, is power. I salute the Ghana Chapter of the International Human Rights Commission for speaking up against this unlawful and unconscionable directive by the Ghana Health Service. And I call on all men of conscience to speak up without any fear of misrepresentation, vilification or stigmatization. I am determined to join other like-minded persons to resist this oppression and grave injustice through every available legal means. COVID-19 vaccinations must be by choice and not by force. Signed, Sammy Gyamfi Legal Practitioner & Citizen of Ghana. NB: The views expressed in this piece are entirely mine and not that of any group that I am a member of or speak for.