RIGHT TO DIE: LEGAL PERSPECTIVE ON EUTHANASIA IN NIGERIA

 INTRODUCTION

The word "euthanasia" has Greek roots, and its broad meaning is the act of taking a terminally ill person's life out of compassion to relieve their suffering.
According to its etymology, "euthanasia" comes from the Greek words "eu" and "thanatos," which signify "good death" or "easy death." [1]Its broad definition centres on taking an incurably sick person's life out of compassion to lessen their misery.[2] In Nigeria, there is no official legal framework in place to support individuals seeking assistance in dying. It is widely known that euthanasia is practised outside of the safe confines of the law. Examples of this include when life-sustaining or life-prolonging treatments such as food, medication, or fluids are withheld from sick patients, when life support machines are delayed, when patients refuse medical treatments even though doing so speeds up their demise, when CPR is not administered, and when a patient whose heart has stopped is allowed to pass away.

In the context of Oregon's Death with Dignity Act (1997), to be eligible for euthanasia, a person must be terminally ill and have six months or less to live, according to a doctor's assessment. On the other hand, in the Netherlands, where assisted suicide and euthanasia are both permitted, the emphasis is on unbearable agony or suffering, regardless of whether the patient is terminally sick, as long as their sickness is irreversible.

Euthanasia can be classified under six broad categories:

• Voluntary   Euthanasia;

• Passive   Euthanasia;

• Involuntary Euthanasia;

• Active   Euthanasia;

• Non-Voluntary Euthanasia;

• Physician-Assisted Suicide.  

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EUTHANASIA UNDER THE NIGERIAN LEGAL JURISPRUDENCE

It is evident from a critical analysis of the Nigerian 1999 Constitution that while there is a right to life, there is no equal right to death. In actuality, the statutes contain no provisions regarding the determination or making of end-of-life decisions in cases where the person holding such a life is suffering from a terminal illness. All types of assisted suicide and euthanasia are forbidden explicitly under the provisions of the Criminal Code. Being terminally sick or giving permission to the euthanasia act is not an excuse and does not lessen the criminal responsibility of those who cause such a death. Unlike some jurisdictions, as things stand in Nigeria, it is illegal to kill someone or cause them to pass away more quickly. This might be interpreted as either manslaughter or murder.

The Position of the Criminal Code on Euthanasia.

Several parts of the Criminal Code make provision for assisted suicide and euthanasia, either directly or indirectly. For example, the Act prohibits the killing of anyone in any way, including euthanasia, unless the death is permitted, justified, or excused by law.[3] Therefore, except as stated, anyone who by any means causes the death of another directly or indirectly is deemed to have killed that person.[4] An offender may be found guilty of murder or manslaughter, based on the circumstances of the case.[5] In the case of murder, the prescribed punishment is a mandatory sentence of death.[6] Whilst the punishment for manslaughter is life imprisonment.

Under the Code, the offence of murder is defined as comprising the following:

 A person who unlawfully kills another 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 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 grievous harm 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 overpowering things for either of the purposes aforesaid;

(6) If death is caused by willfully stopping the breath of any person for either of such purposes.[7]

Whether or not the offender intends to hurt the deceased is immaterial under this section. Other than the above instances, a person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter. In the same vein, under the acceleration of death provision 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 labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.[8] In addition to this, the practice of assisted suicide is specifically made an offence in section 326 of the Code. Under this 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) Aids another in killing himself is guilty of a felony and is liable to imprisonment for life.”[9]

The consent of a person to the occasioning of his death does not make the person by whom such death is caused any less culpable. This implies that the defence of consent is irrelevant.[10] Based on the foregoing, one can deduce that any person, whether it is a physician or other health care practitioner who, at a patient’s request, administers a lethal injection to a patient, would be criminally liable for murder, manslaughter or assisted suicide, depending on the facts and circumstances of the case.

The position of the penal code on euthanasia

Similar to the provisions of the Criminal Code, the Penal Code makes provisions for the offence of murder and manslaughter. However, one difference is that the Penal Code prefers to refer to them as culpable homicide punishable with death,[11] for murder and culpable homicide not punishable with death,[12] for manslaughter. Under the Penal Code, abatement of suicide of persons lacking in legal capacity, such as a minor under the age of 18, an insane person, a delirious person, an idiot or any person in a state of intoxication, in committing suicide is criminalised and made punishable with death.[13] In the same vein, abatement of suicide generally is made an offence punishable for a term which may extend to ten years in addition to a fine.[14] 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 punished with imprisonment for a term which may extend to ten years and shall also be liable to fine.[15]

According to the legal stance mentioned above, it makes no difference if the deceased was a terminally ill patient who was in pain or had an incurable disease, if the patient had a life expectancy of six months or less, or if the patient's family members gave their permission for the death. Encouraging someone to commit suicide is illegal in Nigeria, regardless of the victim's age, health, or permission.

The Position of the Nigerian Constitution on Euthanasia.

 
The fourth chapter of the Constitution contains a crucial provision. This chapter includes detailed provisions about the acknowledgement and defence of fundamental rights. As a result, basic human rights safeguards are included in the Nigerian constitution of 1999 in compliance with global best practices and the country's obligations under treaties. Therefore, the Nigerian 1999 Constitution includes essential human rights provisions in accordance with international best practices and the nation's treaty responsibilities. A few of these clauses directly affect the laws governing assisted suicide and euthanasia. These guarantees cover freedom from discrimination, torture, cruel or inhumane treatment, rights to life, human dignity, liberty, privacy, freedom of thought, conscience, and religion. Accordingly, the right to life is protected by the Constitution.[16]

Under this section, every person has a right to life, and therefore, no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect to a criminal offence for which he has been found guilty in Nigeria. The Constitution also guarantees other rights, such as the right to human dignity.[17] under which there is freedom from torture or inhuman or degrading treatment, freedom from all forms of discrimination,[18] thought, conscience, and religion[19], right to personal liberty, and so on.[20]

There is little question that the right to life is the most important of all the rights protected by the Constitution, based on how the Constitution is read. The right to life, however, cannot be interpreted in a vacuum or apart from other constitutional articles, especially those about human rights. This argument is supported by numerous Nigerian Supreme Court decisions that are pertinent to the matter, such as Nafiu Rabiu v. State[21]where the Supreme Court stated that constitutional provisions, particularly as they relate to fundamental rights, must be read broadly and together and not disjointedly and that the “whole or community reading rule” must be adopted.

The principle of sanctity of life enshrined in section 33 (1) of the Constitution is frequently quoted by those opposed to assisted suicide and euthanasia. While this provision is essential,  it should be balanced against other fundamental rights such as personal liberty, which includes the right to make decisions about one’s life; freedom of thought, conscience, and belief; and protection against discrimination. The right to dignity must also be taken into account. When someone is living with unbearable pain or a complete loss of independence, being forced to continue that life against their wishes can feel deeply cruel and even inhuman. In such cases, preserving life at all costs may end up stripping a person of the dignity the law protects. Any conversation about assisted dying must weigh the sanctity of life against the equally vital right to die with dignity.

It is further argued that the 1999 Constitution's drafters expressly intended for a commensurate enjoyment of the right to life as inseparable from the other rights mentioned above for the constitutionally protected right to life to have any significance. These rights are available in equal measure to all Nigerians irrespective of their state of health or circumstances, including the terminally ill.

It is submitted, therefore, that the right to euthanasia and /or assisted suicide or generally to die is recognised and preserved by necessary implication under the 1999 Constitution as a fundamental right as an integral part of the right to life. All Nigerians, including the terminally sick, have equal access to these rights, regardless of their circumstances or condition of health.

Therefore, it is argued that the 1999 Constitution recognises and upholds the right to euthanasia, assisted suicide, and general death as fundamental human rights that are an essential component of the right to life. The British House of Lords in the celebrated case of Airedale N.H.S.S. Trust v Bland,[22] held that there are exceptions to the sanctity of life premise. Consequently, it does not, for example, require a doctor to treat a patient who will die if he does not, against the patient's clear desire, under threat of criminal prosecution. Additionally, it forbids forcing inmates on a hunger strike. This viewpoint is explicitly supported in Nigeria by the Nigerian Supreme Court's historic decision in Medical and Dental Practitioners Disciplinary Tribunal v Dr John Emewulu Okonkwo.[23] In this instance, the Nigerian Supreme Court preserved a patient's constitutional right to freedom of mind, conscience, and religion from coercion when it comes to consenting to medical intervention or treatment. It is argued that the ruling essentially approved passive voluntary euthanasia by allowing patients to exercise their right to self-determination by refusing medical treatment even when it will undoubtedly cause their death, and in situations where such treatment would violate their constitutionally protected rights.

Considering the aforementioned, it is argued that the right to assisted suicide and euthanasia for terminally ill patients who have little chance of recovery does not conflict with the right to life. Conversely, it is against a patient's constitutionally guaranteed rights to liberty (self-determination), privacy, the dignity of the human person, freedom of thought, conscience, and religion, and against discrimination to insist on keeping them alive against their will, in excruciating pain and suffering, or a permanent vegetative state, frequently in an undignified manner. Thus, it would be against the letter and spirit of the 1999 Constitution to criminalise euthanasia and assisted suicide on a broad scale, as we have seen in Nigeria's criminal and penal code, without taking into account the unique and mitigating circumstances of cases that warrant them. This is clearly in tandem 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.

CONCLUSION

There is no question about the reality that Nigeria's penal laws are now antiquated and anachronistic. For example, the Nigerian Criminal Code was established on 1 June 1916. The criminal and penal code's provisions regarding murder, manslaughter, and assisted suicide, as well as its explicit ban on euthanasia and assisted suicide, clearly show a stark contrast between these laws and the advancements in modern technology, medicine, human rights law, and society at large. It is argued that making assisted suicide and euthanasia illegal on a broad scale, as is currently the situation under Nigeria's penal laws, is no longer sound legislation and is unconstitutional, making it void to the extent that it violates the Constitution.

Ikeola Atilola

William Shimave

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