Are Verbal And Social Autopsies Legal In Nigeria? Daily Law Tips (Tip 559) by Onyekachi Umah, Esq., LLM. ACIArb(UK)
Amid the fight against COVID-19, Punch Newspaper reported that, the Kano State Government will rely on verbal autopsy to determine the cause of over one hundred mysterious deaths recorded within a week in the state. The state government is said to be using this method, since majority of the residents in Kano State are muslims and burials are conducted almost immediately without an opportunity for medical autopsy. Many Nigerians got worried and expressed their opinions against the use of ‘verbal autopsy’ instead of proper ‘medical autopsy’ in Kano State. Many have even questioned the legality of ‘verbal autopsy’ in Nigeria. This works analysis ‘verbal autopsy’ and ‘social autopsy’ in the eyes of laws and courts in Nigeria.
Generally on the meaning of ‘AUTOPSY’, the Court of Appeal has held that; ‘“Autopsy” is defined as “A postmortem examination of the body, including the internal organs, usually to determine the cause of death. (p.61). “Postmortem examination” means “An alternative term for an autopsy.’ Per TUR ,J.C.A ( P. 40, paras. A-B ). Also in another case, about a month earlier, the same court also held that; ‘In the clinical field, autopsy means “dissection of a body after death to determine the cause of death; a postmortem examination of a body”, see Medical Dictionary in the Webster’s Dictionary, International Edition, at page MD-6.’ Per OGBUINYA ,J.C.A ( P. 32, paras. E-F ). Meaning of ‘autopsy’ having been established, the purpose of autopsy is not far fetched, and below are the words of Justice UWANI MUSA ABBA AJI of the Court of Appeal; ‘The main purpose of autopsy is … for ascertainment of the cause of death ….’ Also, the most important thing to a court in an autopsy, is that the corpse of an alleged deceased is identified and postmortem medical examination is carried out on it by a qualified medical officer.
In Nigeria, autopsy is not compulsory and cannot be conducted on a corpse except after 24 hours of death and also after the issuance of a death certificate by a medical practitioner. In this context, ‘autopsy’, ‘postmortem examination’, “anatomical examination’, ‘medical evidence’ and ‘medical autopsy’ mean and refer to the same thing and will be used interchangeably.
According to the World Health Organisation, ‘Verbal Autopsy’ is ‘a method used to ascertain the cause of a death based on an interview with next of kin or other caregivers’. To Murray, ’Verbal Autopsy’ is a method of determining individuals’ causes of death and cause-specific mortality fractions in populations without a complete vital registration system. Verbal autopsies consist of a trained interviewer using a questionnaire to collect information about the signs, symptoms, and demographic characteristics of a recently deceased person from an individual familiar with the deceased. A standard Verbal Autopsy instrument paired with easy-to-implement and effective analytic methods can help bridge significant gaps in information about causes of death, particularly in resource-poor settings.’ Furthermore, according to an ongoing WHO/UNICEF projects under John Hopkins, in Nigeria and four other African countries, ‘Verbal Autopsy is the most useful tool available to determine cause of death in settings with limited access to health care. …The cause of death is determined from predefined combinations of the reported illness signs;…. Verbal Autopsy is not intended to make a gold standard diagnosis of an individual’s cause of death, however it is the best available method for diagnosing cause of death in settings where many deaths occur outside of medical care and lack proper medical certification.’
It is important to mention that ‘Social Autopsy’ is a departure from biological cause of death and rather an inquiry into social, cultural and health system factors that might have caused death. ‘Social Autopsy findings detail the most common household (e.g., mother’s and father’s education, ….), community (e.g., residence place, time to reach health care in an emergency, social capital) and health system (e.g., ANC content, delivery care, newborn and child care, child illness care) factors that contributed to the deaths.’ This helps with health polices and program development.
Close examination of the Nigeria’s legislations, case laws and literatures, reveales that autopsy in terms ‘medical Autopsy’ and ‘postmortem examination’ are very known and common to courts and are often used in criminal trials. The terms ‘Verbal Autopsy’ and ‘Social Autopsy’ seem to be unknown to our laws and are yet to be pronounced on by any court in Nigeria. An informed inquiry beyond terminology, diving deep into processes, procedures and outcomes of terms will reveal a sharp contrast.
Since, the processes of verbal autopsy and social autopsy are radically different from that of medical autopsy (being that unlike medical autopsy, corpse is not examined in verbal autopsy and social autopsy rather testimonies of third parties as well as surrounding circumstances of death are recorded), one may be quick to wrongly conclude that the results of verbal autopsy and social autopsy cannot be used in criminal trials as evidence of cause of death. Well, a review of case laws, shows that a court in the absence of medical evidence, can rely on other evidence and infer the cause of death of a person, where there is sufficient evidence beyond reasonable doubt. What then are sufficient evidence beyond reasonable doubt, apart from medical examination, that courts can rely on to ascertain cause of death and give justice? Simply, they are circumstantial evidence.
‘Circumstantial Evidence’ has been held to be the best form of evidence for courts. The Supreme Court (NWALI SYLVESTER NGWUTA ,J.S.C) resolved, that; “Speaking of circumstantial evidence, Lord Heward, CJ, said, inter alia: “… but circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial. See R v. Taylor & Ors (1928) 21 CAR 20 at 21.” So, courts look at other surrounding facts, known as circumstances evidence, which may include; testimony of a witness of truth or a video recording showing a deceased (dead) person being cut into pieces or being strangled or fed with poisoned food or even showing a confessional statement of a defendant. When a court relies on such circumstantial evidence to infer a cause of death, then the court has apparently relied on verbal autopsy and social autopsy. Testimonies of eye witnesses of truth are verbal autopsy. Video recordings from cameras mounted in family houses, hospitals or police stations where a deceased was murdered or where a person confessed to killing a deceased are social autopsy.
It is apparent that although the terms -Verbal Autopsy and Social Autopsy- may seem strange to law books, often courts and lawyers use and rely on the processes and results of such terms in criminal trials, to establish cause of death as well as determine persons behind cause of death. Surely, verbal and social autopsies are to legal profession “Circumstantial evidence” and court rely on them, a lot. For avoidance of doubt, there is no law against verbal or social autopsies and the terms are well recognised and used in public health in Nigeria and across the world. Until a written law or regulation prohibits an action or inactions, such action or inaction is not illegal, prohibited or criminalised in Nigeria. Verbal or social autopsies are used by courts in Nigeria although without labels but with variations from verbal and social autopsies models and processes under public health.
1. Eniola Akinkuotu, ‘COVID-19: Kano to rely on “verbal” autopsy for mysterious deaths’ Punch Newspaper (Lagos, 27 April 2020) <https://punchng.com/covid-19-kano-to-rely-on-verbal-autopsy-for-mysterious-deaths/> Accessed 29 April 2020
2. The Court of Appeal decision (on the meaning of ‘Autopsy’) ZAMAN v. STATE (2015) LPELR-24595(CA). Per, TUR, J.C.A
3. The Court of Appeal decision (on the meaning of ‘Autopsy’) in the case of in the case of ABELEGAH v. STATE (2015) LPELR-24793(CA). Per, OGBUNYA, J.C.A
4. The Court of Appeal decision (on the purpose of ‘Autopsy) in the case of OKOLIE v. STATE (2014) LPELR-23256(CA) Per, UWANI MUSA ABBA AJI, J.C.A
5. The Supreme Court’s decision (on need for identification before autopsy) in the case of ENEWOH v. STATE (1990) LPELR-1141(SC)
6. Sections 1, 3, 4, 5 and 7 of the Anatomy Act,1933.
7. Thomas, D’Ambruoso and Balabanova, ‘Verbal Autopsy in Health Policy and Systems: a Literature Review’  3(2) BMJ Global Health <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5935163/#R2> Accessed 29 April 2020 citing ’Verbal autopsy standards: the 2016 WHO verbal autopsy instrument’ (World Health Organisation,2016).
8. Christopher Murray, ’About Verbal Autopsy’ (The Institute for Health Metrics and Evaluation, 2019) <http://www.healthdata.org/verbal-autopsy/about> Accessed 29 April 2020
9. ‘Verbal Autopsy and Social Autopsy Studies (VASA)’ (John Hopkins Bloomberg School of Public Health, 2019) <https://www.jhsph.edu/research/centers-and-institutes/institute-for-international-programs/current-projects/verbal-autopsy-and-social-autopsy-studies-vasa/> Accessed 29 April 2020
10. The Court of Appeal’s decision (on circumstances where medical evidence will be dispensed with as to cause of death) in the case of AKPAN v. STATE (2014) LPELR-22741(CA)
11. The Court of Appeal decision (on use of circumstantial evidence to prove cause of death) in the case of OKOLIE v. STATE (2014) LPELR-23256(CA)
12. The Supreme Court’s decisions (on the meaning and nature of circumstantial evidence) in the case of ODOGWU v. STATE (2013) LPELR-42802(SC)
13. The Supreme Court’s decision (on the nature of circumstantial evidence and as a tool to prove murder) in the case of AMOS v. STATE (2018) LPELR-44694(SC)
14. The Supreme Court judgment on “Offence Unknown To Law” in the case of CHIEF OLABODE GEORGE v. FRN(2013) LPELR-21895(SC)
15. The Court of Appeal judgment on “Offence Unknown To Law” in the case of OMATSEYE v. FRN (2017) LPELR-42719(CA)
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