By Ben Ijeoma Adigwe Esq.
THE RIGHT TO DIE IN NIGERIA*
Euthanasia is defined as the act or practice of killing or permitting the death of hopelessly sick or injured individuals (such as persons or domestic animals) in a relatively painless way for reasons of mercy. (“Euthanasia 2024”) Euthanasia is defined as the act or practice of killing or permitting the death of hopelessly sick or injured individuals (such as persons or domestic animals) in a relatively painless way for reasons of mercy. (“Euthanasia 2024”) Euthanasia is the intentional termination of life by another at the explicit request of the person who wishes to die. It is defined as “an easy, quiet and painless death.” (Seymour) It is further stated that euthanasia involves “putting an end to the lives of people with incurable or terminal illness of unbearable suffering” (Greif).
Etymologically, the word is a derivative of two Greek words ‘Euthukos‘ which means’ good cheer’, ‘courage’ or ‘cheerful’ and‘thanatos‘ which means ‘death’ (Okonkwo and Naish) Another name for it is mercy killing. Patients who choose euthanasia see that they would die anyway but they choose to have control over the dying process and avoid the huge medical cost that would be imposed on loved ones if they continue to live. A family’sfinancial resources could be wrecked by such diseases. The individual elects to die rather with dignity.
Euthanasia is criminalized in most countries of the world. Ireland, Colombia, Netherlands, Belgium, Luxembourg, and the States of Oregon and Washington all have laws permitting euthanasia. Belgium in 2014 removed all age restrictions of euthanasia. It was the first to so do. According to reports, 3 % of deaths in the Netherlands are attributed to euthanasia. (Lütje et al.)
The Bible says “Thou shall not kill.” Both the Catholics and the Protestants reject euthanasia. There is also in Christianity the belief that God can miraculously intervene to ease the sufferings of even those who are to be euthanatized. Muslims rejecteuthanasia since the Koran states in Chapter 4 verse 29 as follows: “do not kill yourselves, for verily Allah has been most merciful.” Allah is the giver of life.
In the African society, suicide and euthanasia are taboos. The belief is that God owns life and he alone can terminate it. In pre-colonial times, suicides were thrown into Evil Forests, but in this era, these people are given the most undignified burial, buried facing the earth (upside-down) so that such an individual does not return to the earth by reincarnation—since he has loathed the world. Fines are also imposed on their family beforetheir burial. I once had the misfortune of witnessing the burial of a suicide somewhere in Nigeria. He was buried “unwept, unhonoured, and unsung.” (Bartlett) The Hippocratic Oath which Doctors swear to, forbids euthanasia. (Smith)
The arguments put forward against Euthanasia/Assisted Suicide are that : (a) Euthanasia and Assisted Suicide constitute an attempt by man to play God. (b) It devalues human life i.e. undermine the sacredness of human life. (c) It can quickly become a selfish and short cut technique of health care cost reduction (d) It amounts to an act of cruelty, rather than an act of kindness (e) It is against natural rules of human interactions (f) In the case of doctors it is against the Hippocratic oath (g) There exists a “slippery slope” effect that can develop if there is a legalization of euthanasia/assisted suicide.
Euthanasia can be categorized under six headings, to wit:passive euthanasia; active euthanasia; physician-assisted suicide; voluntary euthanasia; involuntary euthanasia; and non-voluntary euthanasia. (Omipidan)
In passive euthanasia, death is hastened by altering the support of the victim for example stopping his drugs or other treatment, or turning off the life support. In active euthanasia, the physician actually causes the death at the request of the patient. In doctor-assisted suicide, the physician proffers information or supplies the means of committing the suicide. In voluntary euthanasia,the victim requests that the physician should end his or her life. Here the patient is fully aware and conscious of the implications of the whole process. Voluntary euthanasia could either bevoluntarily active or involuntarily passive. In voluntarily active, the physician at the request of the patient gives medication that causes death. In voluntary passive, the patient dies for example when his treatment is stopped. In involuntary euthanasia, the patient is killed even though he has not expressly requested it,for example where the patient is in a continuous vegetative state and the killer considers that it is in the best interest that his life be ended.
There is no particular law regulating euthanasia in Nigeria. The legislation on euthanasia and assisted suicide is integrated in the penal laws of the country and consequently statutory. Also pertinent to the legislation on euthanasia and assisted dying are the human rights provisions of the 1999 Constitution (as amended) which provides a constitutional component to euthanasia law in Nigeria. The relevant sections of these legislation and the constitution should now be studied.
There are two basic statutes covering the criminal laws of Nigeria. These are the Criminal Code Act (applicable to the Southern states of Nigeria) and the Penal Code (applied to the Federal Capital Territory (FCT) Abuja and other Northern States). These Penal laws contain a substantial number of provisions that directly or indirectly relate to the practice of euthanasia and assisted suicide as may be derived from a careful review of these prominent sections. In this respect, the criminal and penal codes being the primary penal enactments in Nigeria shall be of particular importance.
A number of Criminal Code laws relate either directly or otherwise to euthanasia and assisted suicide. For instance, under the Act, any type of killing of any person (euthanasia clearly including) is prohibited unless such killing is permitted, justified or forgiven by law.
25
Therefore, except as mentioned out, any person who causes the death of another directly or indirectly, by any means whatever is held to have killed that other person. 26 In any of these instances, an offender may be found guilty of murder or manslaughter, depending on the facts of the case .27 In the instance of the former, the stipulated punishment is a mandatory sentence of death. 28 Whilst in the latter, it is life imprisonment. Under the Code, the offence of murder is defined as comprising the following:“…… A person who unlawfully killsanother under any of the following circumstances, that is to say- (1) If the offender intends to cause the death of the person killed, or that of some other person; (2) If the offender intends to do to the person killed or to some other person some grievous harm; (3) If death is caused by means of an act done in the prosecution of an unlawful purpose which act is of such a nature as to be likely to endanger human life; (4) If the offender intends to do greviousharm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose facilitating the flight of an offender who has committed or attempted to commit any such offence; (5) If death is caused by administering any stupefying or over overpowering things for either of the purposes aforesaid;
(6) If death iscaused by willfullystopping the breath of any person for either of such purposes29. Under this section, it is immaterial that the official did not intend to hurt the particular person who is killed. Other than the preceding scenarios, a person who illegally kills another in such circumstances as not to constitute murder is guilty of manslaughter.
Similarly, under the acceleration of death section of the Criminal code, a person who hastens the death of another person who, when the act is done or the omission is made is laboring under some disorderor disease arising from another cause is deemed to have killed that other person.30This rule pretty plainly refers directly to the practice of euthanasia and assisted suicide in all but name. under addition to this, the practice of assisted suicide is expressly constituted an offence under section 326 of the code. Underthis provision; “Any person who- (1) Procures another to kill himself, or (2) Counsels another to kill himself and thereby induces him to do so or, (3) Aid another in killing himself is guilty of a felony and is liable to imprisonment for life.”31
Consent by a person to the causing of his own death does not change the criminal responsibility of any person by whom such death is caused. It is thus not a defense under the law to assert a defense of consent.
32 From the above any individual, physician or other health care who at a patient’s request, gives a deadly injection or drug on a patient, would be criminally responsible for murder, manslaughter or assisted suicide depending on the facts and circumstances of the case.
The Penal Code, like the criminal code, provides the offence of murder and manslaughter. Although the code prefers to refer to them as culpable homicide punishable with death, 40for murder and culpable homicide not punishable with death,41formanslaughter. The definition of these offences is largely the same as that of the criminal code before discussed. The prescribed penalties are likewise identical. Under the Penal Code, abatement of suicide of persons lacking in legal ability such as a juvenile under the age of 18, mad person, a delirious person, any fool or any person in a condition of drunkenness in committing suicide is criminalized and rendered punishable with death.
42 In the same vein, abatement of suicide usually is declared an offence punishable for a term which may reach to 10 years in addition to a fine.43
Furthermore, as in the case of the criminal code, under the penal code; whoever administers to or causes to be taken by any person any prison or any stupefying, intoxicating or unwholesome drug or things with intent to cause hurt to that person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punishedwith imprisonment for a term which may extend to ten years and shall also be liable to fine.44
In the light of the above, it is obvious that the practice of euthanasia and assisted suicide is criminalized under the criminal Penal code of Nigeria. The extent to which this is true within the context of the constitution must now be considered.
As regards Euthanasia under the 1999 constitution of Nigeria, It is clear that under the legal framework in Nigeria, the 1999 Constitution (as modified) is supreme and its provisions must prevail. Where any other legislation is inconsistent with the constitution, to the extent of such discrepancy, that other law(s) shall be void.45
A significant component of the constitution is established in chapterIV of the constitution. Under this chapter, extensive requirements relating to the recognition and preservation of basic fundamental Human rights are contained. Perhaps the greatest gift of mankind as far as law is concerned is the evolution of Fundamental Human Rights as inalienable rights.”
46Therefore, in keeping with global best practice, and the country’streaty responsibilities, the constitution of Nigeria 1999 (as amended) incorporates core human rights guarantees. Someof these rules have direct influence on the legislation and practice of Euthanasia and assisted suicide. These provisions include the right to life, human dignity, liberty, privacy, freedom of thought, conscience and religion freedom from discrimination, torture, human or humiliating treatment etc. Accordingly under the constitution, the right to life is protected. 47 Under this clause, every person has a right to life and consequently no one shall be deprived deliberately of his life, unless in execution of the sentence of a court in respect of a criminal crime of which he has been found guilty in Nigeria. The Constitution additionally grants other rights .For the purpose of this paper, specific mention must be given to the following: right to human dignity48 under which there is freedom from torture or in human or humiliating treatment freedom from all types of discrimination,49 think Conscience and religion50, right to personal liberty etc.51
From the reading of the constitution, there is no question that the right to life is the most significant of all rights captured by the constitution. No wonder therefore that substantial efforts is obvious to try to dissuade its truncation save as authorised for under the law. Nonetheless, it is claimed that this right to life cannot be interpreted in isolation or irrespective of other provisions of the constitution, particularly as they pertain to human rights. This opinion is strengthened by a multiplicity of judicial decisions of the Nigerian Supreme Court pertinent to this problem, where the Nigerian supreme Court has clearly highlighted the appropriate course to adopt in constitutional interpretation. In this respect, the Supreme Court has declared explicitly that Constitutional provisions, particularly as they pertain to fundamental human rights must be read widely and jointly and not disjointedly. In other words, what is referred to as the “whole or community reading rule” must be implemented. This was the ruling of the apex court in the following cases:
1. NafiuRabiuv. State5criminalized and made punishable with death.
42
Thus in the case of State v Okezi the accused who was a native doctor prepared some charms for the deceased which is said to be able to make one bullet proof. The deceased then invited theaccused to test the charm on him by firing shot at him. The accused shot him in the chest and killed him. He was convicted of murder.
A few people have advocated that the criminal code which came into being on 1st June 1916 is not in touch with modern realitiesin its wholesale ban on euthanasia. And in Medical and DentalPractitioners Disciplinary Tribunal v. John Okonkwo, The Supreme Court seems to have impliedly approved passiveeuthanasia in Nigeria. In this instance, the patient Mrs. Martha Okorie, her husband and one Dr. John EmewuluOkonkwo are all members of the Jehovah’s Witness Christian religious organisation. This sect of Christianity firmly embraces the concept that blood transfusion is opposed to God’s injunctions for Christians not to “eat blood”. The patient, having delivered a baby experienced post-delivery issue and was hospitalised to one Kanayo Specialist hospital for a period of 9 days. A diagnostic was undertaken and it was determined that she had a critical condition for which blood transfusion was required but she refused transfusion. She was on this reason released from the hospital with a letter saying she rejected transfusion and that she could die.She was transferred to another hospital where the respondent, Dr. Okonkwo practices, by her husband. Here, she provided the doctor with a card ordering that in line with her rights as a patient and her convictions as a Jehovah’s Witness, no blood transfusion should be carried out on her. She also exonerated the healthcare professionals of the institution from accountability. Her husband likewise completed a similar agreement. The doctor consequently went ahead to treat her without blood transfusion in line with her instructions. She subsequently died. The doctor in charge, Dr. Okonkwo was subsequently brought before the medical and Dental Practitioner’s disciplinary tribunal on 2 charges of acting counter to his oath of profession and negligence. The tribunal found him guilty on the charges and he was suspended from practice for 6 months. He appealed to the Court of Appeal and his Appeal succeeded. Upon a further Appeal by the tribunal to the Supreme Court, the apex Court held (unanimously dismissing the appeal), that the patient was well within her legal and constitutional rights to decline medical treatment which include blood transfusion and the doctor could not have done anything infringing this right.
According to Ayoola JSC:
The patient’s constitutional right to object to medical treatment or particularly, as in this case, to blood transfusion on religious grounds is founded on fundamental rights protected by the 1979 constitution as follows: (1) Right to privacy: Section 34, (ii) right to freedom of thought , conscience and religion, section 35. All of these are preserved in section 37 and 38 of the 1999 Constitution respectively. The right to privacy implies a right to protect one’s thought, conscience or religious beliefs’ and practice from coercive and unjustified intrusion and one’s body from unauthorized invasion. The right to freedom of thought, conscience and religion implies a right not to be prevented, without lawful justification from choosing the course of one’s life…. if a competent adult patient exercising his right to reject lifesaving treatment on religious grounds thereby chooses a path that may ultimately lead to his death, in the absence of judicial intervention overriding the patient’s decision, what meaningful option is the practitioner left with other than perhaps to give the patient’s comfort. More so against the back drop of the fact that prevailing medical ethical practice does not without exceptional demand that all efforts towards life prolongation be made in all circumstance, but seems to recognize that the dying are often in need of comfort than treatment”.
In line with the above judicial decision, it is arguable that the wholesale prohibition of euthanasia by our penal and criminal codes is against the constitutional provisions that guarantee the rights to liberty, self-determination, dignity of the person, freedom of thought, conscience, and religion, and against discrimination and therefore null and void. The right to life guaranteed by section 33 of the 1999 Nigerian constitution (as amended) should not be read in isolation but in connection with other provisions regarding human rights. It was the cerebral Professor Stephen Hawkins who said that to keep someone alive against his wishes is the ultimate indignity.
In the very recent case of Tega Esabunor v. Dr. Tunde Faweya,the Supreme Court restated the position saying that “it is longsettled that an adult who is conscious and in full control of hismental capacity and of a sound mind has the right to either accept or refuse blood transfusion (medical treatment). There isa right to freedom of choice, but when it involves a child different considerations apply because he is incapable of making a decision for himself and the law would intervene to protect such a person from abuse of his right as he may grow up and disregard those religious beliefs.” In that case, the parents of a child had insisted that the blood transfusion, which the Doctor prescribed, should not be administered as it was against their beliefs as Jehovah’s Witnesses.
In our local communities in Nigeria, there is a mysteriouspractice common in the days of yore where men prepare a special potent charm which they hang up on their wall, it beingunderstood and believed that the person who owns such a charm will never die unless the charm is brought down and touches the floor. As incredible as it sounds, it is a widely held belief. A senior Anioma citizen, Chief J. E. Adigwu, said he has seen such a charm among his people. Among the Anioma people of Delta State Nigeria, it is called idahi. Among the Yoruba people of South West Nigeria, it is called Gbekude. Among the Urhobosit is called obe-ru uyovwi. There is a common consensus wherever this practice has been noticed that the owners of such charms keep on living in spite of debilitating, distressingdiseases as long as the charm is hung up. The individual may begin to rot or be in a vegetative state but keep living. In suchcircumstances the man could voluntarily tell them to bring it down or the family members could search it out and bring it down to the floor, whereupon the man would then breathe his last. This, it is submitted, qualifies as a form of euthanasia in as much as the dying process is controlled. However, this is no longer commonly practiced in these modern times
.
