Euthanasia and The Right to Die Under Nigerian Law

EUTHANASIA AND RIGHT TO DIE UNDER NIGERIAN LAW

Musa Habila Zakariah

University of Jos

ABSTRACT

      The word ‘euthanasia’ evokes emotions, regardless of the way it is used. When pronounced, separate camps of irreconcilable proponents and opponents are drawn up. Over the years, public opinion, decisions of courts, and legal and medical approaches to the issue of euthanasia in Nigeria have been conflicting. The connection between the right to life and the right to die has been attempted in a few debates. Although it is widely accepted that murder is a crime under Nigerian law, a clearly defined stand has not been taken on euthanasia. The Nigerian populace views euthanasia as a murder in disguise, a situation where the supposed healer becomes a killer. This, therefore, forms the nitty-gritty of discussions in this article.

 INTRODUCTION 

    Globally and historically, human euthanasia and assisted suicide, like other life and death issues such as abortion always engender immense controversy and very divergent perspectives. 

Much of these differences rest squarely on legal, religious, ethical /moral, social and economic pillars. On the legal front, most opponents of euthanasia and assisted suicide (sometimes referred to as “pro-life” adherents) base their legal and moral revulsion to euthanasia and assisted suicide principally on the principle of sanctity of human life and the need to accord utmost respect to its sustenance. 

They therefore actively and completely seek to discourage any law that detracts from it. Under this resolve, pro-life adherents are therefore quick to call in aid a host of national and International legal instruments that guarantee the right to life and the promotion of its sanctity.

 These instruments include the municipal constitutions of most countries of the world and International instruments such as the Universal Declaration of Human Rights (UDHR) 1948, the International Covenant on Civil and Political Rights (ICCPR) 1966 and the African Charter on Human and People's Rights 1981. 

DEFINITION OF EUTHANASIA 

  According to Encyclopedia Britannica, euthanasia is the act or practice of painlessly putting to death persons suffering from painful and incurable diseases or incapacitating physical disorders. Euthanasia is therefore; generally defined as the act of killing an incurably ill person out of concern and compassion for that person’s suffering. It is sometimes called "mercy killing".

CLASSIFICATIONS OF EUTHANASIA

Euthanasia can be categorized under the following headings: 

Passive euthanasia: This is hastening the death of a person by altering some form of support and letting nature take its course. Examples include such things as turning off respirators, halting medications, discontinuing food and water to allow a person to dehydrate or starve to death or failing to resuscitate. 

Active euthanasia: Active euthanasia involves causing the death of a person through a direct action, in response to a request from that person. A well-known example of active euthanasia was the death of a terminally ill Michigan patient on September 17, 1998. 

Physician-assisted suicide: In this situation, a physician supplies information and or means of committing suicide (e.g., a prescription for a lethal dose of sleeping pills, or a supply of carbon monoxide gas) to a person, so that that individual can successfully terminate his or her own life. The U.S. Supreme Court has made two important rulings on assisted suicide. In Washington v. Glucksberg, three terminally ill patients, four physicians, and a non-profit organization had brought action against the State of Washington for declaratory judgment, that a statute banning assisted suicide violated Due Process Clause. The Supreme Court held that the state has the right to prohibit assisted suicide. In Vacco v. Quill, the physicians challenged the constitutionality of the New York statutes making it a crime to aid a person in committing suicide or attempting to commit suicide. The Supreme Court held that New York’s prohibition on assisting suicide did not violate the Equal Protection of the Fourteenth Amendment.

Voluntary euthanasia: Voluntary euthanasia arises where a person requests a doctor to put an end to his or her life. In this situation, the patient understands the nature of her demand and its implication.

Involuntary euthanasia: The term involuntary euthanasia is used to describe the killing of a person who has not explicitly requested aid in dying. This term is most often used with respect to patients who are in a persistent vegetative state and who probably will never recover consciousness.

 

 PRACTICE OF EUTHANASIA IN SOME JURISDICTIONS

Euthanasia has been legalized in a few nations, albeit it is subject to signature requirements. In the year 2002, the Netherlands became the first country to legalize euthanasia and assisted suicide simultaneously. Like every other country that has permitted one or both notions, the Netherlands, which has legalized both euthanasia and assisted suicide, has imposed considerable limits on the practice. They include:

 (i) The request must be made in writing. 

(ii) The physician must hold the conviction that the request by the patient is voluntary and considered carefully.

(iii) The physician must hold that the conviction that the patient’s suffering is lasting and unbearable and that there is no possible hope for improvement.

(iv) The physician must consult at least one other independent physician, who examines the patient and confirms in writing that the attending physician met the criteria with due care. 

(v) The physician terminates the patient’s life or assists the patient in ending their life must be present.

 (vi) The physician must report the death to the coroner.”                                 

       The state of Oregon where assisted suicide was legalized in the year 1997, has the following conditions: 

(i) The patient must be a capable adult who is suffering from a terminal disease. 

(ii) Patient’s life expectancy is less than six months. 

(iii) The patient is a resident of the state of Oregon. 

(iv) Patient must make an oral request and a written request and reiterate the oral request

 (v) Less than 15 days shall elapse between the patient’s initial oral request and second oral request.

 (vi) Patient must self-administer the medication without assistance, but a physician may be present.     

EUTHANASIA UNDER NIGERIAN LAW

   The penal laws in Nigeria are governed by statute. Under the Penal Code applicable in Northern Nigeria, and the Criminal Code applicable in Southern Nigeria, consent of a person to an act causing death is not a defence. The term euthanasia is not used in the penal laws in Nigeria, but an inference to that effect is provided. The killing of a human being by another is a crime under homicide, amounting to murder or manslaughter, depending on the intent with which the killing is done. 

The penal laws do not distinguish between a killing that is carried out with the assistance of a physician or a request emanating from a patient or the state of the patient’s health. The effect is that euthanasia is murder.

There is a cultural dimension to the issue of euthanasia in Nigeria. Nigeria is a multi-ethnic nation with a diverse culture. Law is organic and functional in human societies; however, it functions differently from one society to the other. 

Under some Nigerian cultures and from a sociological perspective, euthanasia or suicide has not been recognized as a viable option. On some occasions, patients who are terminally ill and in an intolerable situation because of physical or mental incapacity will not wish to remain in a deplorable condition that will bring about shame and pity from a cultural perspective. 

Moreover, family members, out of pity, may not wish to see the patient in agony. With the statutory penal laws in place, however, any act of terminating such a patient’s life would be regarded as murder. 

In respect of assisted dying/suicide, the position of the law is clear. Section 326(3) of the Criminal Code Act provides that ‘any person who aids another in killing himself is guilty of felony, and is liable to imprisonment for life.’ The syllogism here is that consent by a person to the cause of his death does not affect the criminal responsibility of any person by whom such death is caused. In State v. Okezie, the accused, a native doctor, prepared some charms for the deceased. The deceased then invited the accused to test the charm on him by firing a shot at him. The accused shot him in the chest and killed him. He was convicted of murder.

   It is a criminal offence attracting life imprisonment for aiding someone to commit suicide in Nigeria. Thus, section 326 of the Criminal Code Act provides that: ‘any person who aids another in killing himself is guilty of a felony, and is liable to imprisonment for life.” 

This is contrary to the laws of some Western states, such as the Oregonian Death with Dignity Act, where assisted suicide is not a crime but, rather an aspect of medical treatment. So far as the practitioner (i.e. the assisted killer) complied with the procedural safeguard enshrined under the Act, the practitioner or any other person(s) he/she acted in concert with (e.g. family relation of the deceased patient) is exonerated from any criminal liability, thereby protected under the Act. However, in Nigeria, there is no such qualification as regards aiding another in killing himself. The community reading of sections 220 and 221 of the Penal Code shows that any form of killing, (except one exempted under the Nigerian Law, which fortunately and unfortunately does not include euthanasia) attracts the death penalty under Nigerian Law. 

Thus, section 220 of the Penal Code provides that: Whosoever causes death –(a) By doing an act with the intention of Causing death or such bodily injury as is likely to cause death; or

(b) By doing an act with the knowledge that he is likely by such act to cause death; or 

(c) By doing a rash or negligent act, commits the offence of culpable homicide.

From the above position of the law, it does not matter whether the deceased person is a terminally ill patient suffering from pain or incurable disease, whether the patient’s life span is six (6) months or below, or that he /she or the family members consented to his /her killing. However, in Nigeria, any person who attempts to kill himself has committed an offence and that person would be tried by the state authority. 

Thus, section 327 of the Criminal Code provides that “any person who attempts to kill himself is guilty of a misdemeanour and is liable to imprisonment for one year.” The pertinent question is whether consent to die exonerates the criminal liability of the physician who assisted the patient in dying. Under Nigerian law, consent by any person of his death does not exonerate the killer from criminal liability. Section 299 of the Criminal Code provides that “consent by a person to the causing of his death does not affect the Criminal responsibility of any person by whom such death is caused.” Thus, in the case of State v. Okezie, the accused, a native doctor, prepared some charms for the deceased. The deceased then invited the accused to test the charm on him by firing a shot at him, in the chest, and he died. He was convicted of murder even though the accused acted with the consent of the deceased. In a related development, section 222(5) of the Penal Code provides that “culpable homicide is not punishable with death when the person whose death is caused, being above the age of eighteen years suffers death or takes the risk of death with his consent”. 

The combined reading of sections 222(5) and 224 of the Penal Code shows that the offence of killing a person of full age and capacity whether suffering from terminally ill and or painful sickness or otherwise, with the deceased’s consent, attracts life imprisonment or any less term or with fine or with both.

What may be seen as a legal nod to passive euthanasia in Nigeria is reflected in the reasoning of the Supreme Court in MDPDT v. Okonkwo, where the apex court held inter alia that: The total rights of privacy and of freedom of thought, conscience or religion which an individual has, put in a nutshell, is that an individual should be left alone to choose a course for his life, unless a clear and compelling overriding state interest justifies the contrary.’ …Law’s role is to ensure the fullness of liberty when there is no danger of public interest. ‘This is why, if a decision to override the decision of an adult competent patient not to submit to blood transfusion or medical treatment on religious grounds, is to be taken on the grounds of public interest or recognized interest of others, such as dependent minor children, it is to be taken by the courts.

CONCLUSION 

Despite the recognition and legalization of assisted suicide or euthanasia in some countries, many other countries, including Nigeria are yet to embrace let alone legalize it. That a person provides consent to occasion their death by an external person is not an escape route from being criminally liable. This is evidenced in the extant legislations of Nigeria that provide for the criminal liability of persons who engage in assisted suicide or euthanasia.

Recommendation

It is recommended that a comprehensive reform of existing penal laws be carried out aimed at creating an exception to deserving cases for the exercise of the right to die by Euthanasia.

 REFERENCES 

Nigerian Penal code Act, (Northern Nigeria)

Nigerian Criminal code Act, (Southern Nigeria)

Washington v. Glucksberg 

Vacco v. Quill

Medical and Dental Practitioners Disciplinary Tribunal v. John Nicholas Okonkwo 

State v. Okezie

MDPDT v. Okonkwo