Euthanasia And Assisted Suicide: A Critical Examination on the recognition and legalization of the right to die in Nigeria.
By Anthony K. Abubakar.
The question of the existence of a right to die by euthanasia otherwise referred to as mercy killing and assisted suicide is one that transcends national boundaries and diverse legal system. The dominant legal regime around the world is that euthanasia and assisted suicide is unlawful and criminalized. However, with the advancements in medical technology leading to remarkably greater ability to sustain and prolong human life coupled with corresponding growth in human rights law, many countries around the world like Netherlands and Belgium have legalized the act of euthanasia and assisted suicide. There is no doubt that there is a global acceptance of right to life. The question that is the bedrock of the euthanasia controversy is whether or not there is conversely a right to die?
The right to die is a concept based on the opinion that a human being is entitled to end his or her life or undergo voluntary euthanasia. Possession of this right is often understood that a person with a terminal illness, or without the will to continue living, should be allowed to end their own life, use assisted suicide or to decline life-prolonging treatment. However for the sake of this work, it is the writer’s opinion that individuals have the right to die as it typically associates the right to die with the idea that one’s body and one’s life are one’s own, to dispose as one sees fit.
The right to self-determination emerged and questions the definition of quality and sanctity of life, if one had the right to live, then the right to die must follow suit, both on their terms, death itself is a natural process of life thus there should be no laws to prevent it if the patient seeks to end it. Individuals should have the right to die because the end of our lives should not be of concern of others.
EUTHANASIA AND ASSISTED SUICIDE
The word ‘Euthanasia’ is derived from the Greek words eu and thanatos which means ‘good death’ or ‘easy death’. The Black’s Law Dictionary defines euthanasia as the act or practice of causing or hastening the death of a person who suffers from an incurable or terminal disease or conditions especially a painful one, for reason of mercy. It is imperative to state at this point that whilst the above definitions highlight the fact that often times the subject of euthanasia and assisted suicide suffers from some form of incurable or terminal condition, this is not always the case. There have been reported cases where euthanasia and assisted suicide have been carried out in less extreme cases.
Assisted suicide on the other hand connotes the intentional act of providing a person with the medical means or medical knowledge to commit suicide. Where a doctor provides the means, it is referred to as physician assisted suicide (PAS). Here, a physician knowingly and intentionally provides a person with the knowledge or means or both required to commit suicide, including counseling about lethal drugs, prescribing such lethal doses or supplying the drugs. Euthanasia differs from assisted in that in the latter case, a person voluntarily brings about his or her own death, i.e. commits suicide with the assistance of another person who provides the means to terminate the life of the patient, coupled with a clear knowledge of the intention of the person to commit suicide, often times due to medical condition. The means could be by way of lethal medication. The provider unlike in the case of euthanasia does not necessarily act as the direct agent of death. Euthanasia can be passive, active, voluntary, non-voluntary, or involuntary.
Euthanasia and Assisted Suicide as a means to the right to die is important because it is an act of compassion as it provides reliefs in cases of extreme pain and anguish; particularly for the terminally ill when all hopes of survival is clearly lost. It is an expression of the freedom to choose or self-determination inherent in all individuals, recognized by nature and God and it preserves as well as promotes bodily integrity and dignity for the terminally ill or incapacitated. Lastly, it frees up scare medical facilities and funds to assist other people who are less ill, with clear chance of survival.
LEGALITY OF THE RIGHT TO DIE IN NIGERIA VIS A VIS EUTHANASIA AND ASSISTED SUICIDE
There is no specific law on euthanasia in Nigeria. The law on euthanasia and assisted suicide is embedded in the penal laws of the country (The Criminal Code Act and the Penal Code Act). Also, germane to this, are the human rights in the 1999 Constitution which brings a constitutional dimension on euthanasia law in Nigeria.
Under Section 306 of the Criminal Code Act, any form of killing of any person (euthanasia clearly inclusive) is unlawful unless such killing is authorized by law. Therefore, except as set forth, any person who causes the death of another directly or indirectly, by any means whatsoever is deemed to have killed that other person. Also, under Section 316 of the Criminal Code Act, the offence of murder is defined as where a person unlawfully kills another under any of the circumstances stated in subsections 1-6 of that section. Under that section, it is immaterial that the official did not intend to hurt the particular person who was killed.
Similarly, under the acceleration of death provision of the Criminal Code (Section 311), a person who hastens the death of another person who, when the act is done or the omission is made is laboring under some disorder or disease arising from another cause is deemed to have killed that other person. This provision quite clearly speaks directly to the practice of euthanasia and assisted suicide in all but name.
In addition to this, the practice of assisted suicide is specifically made an offense in section 326 of the Criminal Code. Under this provision: Any person who-
Procures another to kill himself, or
Counsels another to kill himself and thereby induces him to do so or,
Aid another in killing himself is guilty of a felony and is liable to imprisonment for life. See the case of State v. Okezie(1972) 2 E.C.S.L.R 419
Consent by a person to the causing of his own death does not affect the criminal responsibility of any person by whom such death is caused. From the above any person, physician or other health care who at a patient’s request, administers a lethal injection or medication on a patient, would be criminally liable for murder, manslaughter or assisted suicide depending on the factual circumstances of the case. These whole provisions are similarly provided for under sections 222, 227, and 228 and 249 of the Penal Code.
In light of the above, it is clear that the practice of Euthanasia and assisted suicide is criminalized under the penal laws of Nigeria. The extent to which this is true within the context of the Constitution shall now be examined.
It is well settled that the 1999 Constitution of Nigeria is supreme and its provisions shall prevail and any other law that is inconsistent with the constitution is void to the extent of its inconsistency. This is in accordance with the supremacy clause of the Constitution. A key feature and characteristic of this constitution is enshrined in Chapter IV of the Constitution. Under this chapter, exhaustive provisions relating to the validity, recognition, legalization and protection of basic Fundamental Human Rights are contained. Perhaps the greatest gift of mankind as far as law is concerned is the evolution of these rights as inalienable rights and this has made these rights sacrosanct and fundamental that it cannot be undermined or swept under the carpet. Some of these provisions have direct connection on the law and practice of Euthanasia and assisted suicide. These provisions include the right to life, the right to human dignity, privacy, freedom of thought, conscience and religion, freedom from discrimination, torture, human and degrading treatment. Accordingly, Section 33 of the constitution provides for the right to life. The constitution also provides for other rights, however, for the purpose of this work, specific mention shall be made to sections 34, 49 and 38 of the Constitution which provides for the right to human dignity, freedom of thought, conscience and religion and right to personal liberty respectively.
From the reading of the constitution, there is little doubt that the right to life is the most sacred of all rights captured by the constitution. No wonder therefore that serious efforts is evident to try and discourage its truncation save as provided for under the law. However, it is submitted that this right to life cannot be read in isolation or independent of other provisions of the constitution, particularly as it concerns human right. This submission is strengthened by plethora of judicial decisions of the Nigerian Supreme Court relevant to this issue, where the court has clearly shown the right path to take in constitutional interpretation as it relates to fundamental human rights. The court held that Constitutional provisions as they relate to fundamental human rights must be read broadly and together and not disjointedly. In other words, what is referred to as the whole or community reading rule must be adopted. This was the decision of the apex court in the cases of A.G Bendel v. A.G Federation (1982) 3 NCLR 166; Nafiu Rabiu v. State(1981) 2 NCLR 293; Lafia Local Government v. Government of Nasarawa State(2013) ALL FWLR (Pt 608) 956
Flowing from the above, it follows that the principle of sanctity of life often cited by opponents of euthanasia and assisted suicide must not be read in isolation but together with other necessary and corresponding rights. It is further submitted that for the enjoyment of the constitutionally guaranteed right to life to have any meaning at all, the makers of the 1999 constitution clearly envisage that there shall be a corresponding enjoyment of the right to life as inseparable from other rights highlighted above. These rights are available in equal measure to all Nigerians irrespective of a state of health or circumstances, the terminally ill inclusive. Imagine a sad picture of a terminally ill Nigerian in a persistent vegetative state, with no hope of improvement or survival, in excruciating pains and anguish, inhuman indignity, being kept medically and mechanically alive but functionally dead by life support devices, desirous of dying being denied the right of euthanasia and/or assisted suicide, can certainly not be the intention of the framers of the constitution in drafting section 33(1) of the constitution. It is submitted , therefore that the right to euthanasia and assisted suicide or generally the right to die is recognized and preserved by necessary implication under the 1999 Constitution as a fundamental human right as an integral part of the right to life.
The above submission finds express agreement in the landmark decision of the Nigeria Supreme Court in the case of Medical and Dental Practitioners Disciplinary Committee v. Dr. John Okonkwo (2001) 3 S.C 76 wherein the court upheld the right of a patient to consent to medical intervention or treatment in pursuit of her exercise of the freedom of thought, conscience and religion under the constitution. This decision effectively endorsed passive voluntary euthanasia by way of the exercise of a patient’s right to self-determination expressed in her refusal of medical intervention even where it will surely lead to her death, where such intervention runs contrary to her constitutionally guaranteed right
The primacy of the informed consent of a patient to all forms of medical treatment by a medical doctor was again reaffirmed by the Supreme Court in the case of Okekearu v. Tanko (2002) FWLR Pt. 131, 1888.
In the light of the above, it is submitted that the right to die by way of euthanasia or assisted suicide for the terminally ill with no hope of recovery is not inconsistent with the right to life. On the contrary, any insistence on keeping the patient alive against his will, in excruciating pains and anguish or a permanent vegetative state often times in an undignified manner is contrary to the patient’s constitutionally guaranteed rights to liberty, dignity of human person, privacy, freedom of thought, conscience and religion. Consequently, a wholesale criminalization of euthanasia and assisted suicide as we have seen in the penal laws of Nigeria without regard for the peculiar and extenuating circumstances of deserving cases of euthanasia and assisted suicide runs contrary to the spirit and letters of 1999 Constitution and is therefore unconstitutional. This is clearly consistent with the principles and decision of the Supreme Court in the MDPT v. Okonkwo case and should accommodate deserving cases of voluntary euthanasia and assisted suicide.
The fact that the penal laws of Nigeria have become outdated and therefore anachronistic is no longer in doubt. The Nigeria Criminal Code for instance came into being on 1st June, 1916. Obviously, the provisions of the criminal code and penal code relating to murder, manslaughter and assisted suicide and their outright prohibition of euthanasia and assisted suicide, presents a gaping disconnect between these penal laws and modern technological advances and development in medicine, human rights law and society in general. Indeed, it is submitted that a wholesale criminalization of euthanasia and assisted suicide as is presently the case in the penal laws of Nigeria is no longer good law and unconstitutional, therefore null and void to the extent of its inconsistency with the Constitution
Bryan A, Garner, Blacks Law Dictionary 9th Ed. (Texas; LawProse Inc.,2009)
Criminal Code Act Cap. 41 LFN 2004
Penal Code Law Cap 89, Laws of Kano State
Legality of euthanasia, available at en. Wikipedia.com
The 1999 Constitution of Nigeria(as amended)
Bright E. Oniha, Legality of Euthanasia and the Right to Die in Nigeria
Oniha B.E and Oniha M.O, “Euthanasia and Assisted Suicide as Basic Constitutional Rights under the 1999 Constitution of Nigeria”
ABOUT THE WRITER
Anthony K. Abubakar is a 3rd year student of the Faculty of Law, Ambrose Alli University, Ekpoma who has keen interest in International Humanitarian Law, Human Rights Law and Constitutional Law.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
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