By Folorunso Samuel Oluwatobi and Akintunde Kehinde Opeyemi

Abstract

The word ‘Euthanasia’ also referred to as Mercy killing or assisted suicide (though kind of different but similar) gears emotions irrespective of the way it is used. When being discussed, separate schools of irreconcilable opinions, views, proponents and opponents are drawn up. Since years back, public opinion, court decisions, legal and medical approaches towards the issue of euthanasia in Nigeria have been conflicting. The connection between right to life and right to die have been attempted in few debates. Although it remain firm under the Nigerian law that murder is a crime but a clearly defined stand had not been taken on the issue of euthanasia under the Nigerian law and legal arena. The Nigerian populace viewed euthanasia or Mercy killing so called as euphemism or better still an unnecessary counterintuitive, murder in disguise, a situation whereby the healing place becomes a quick place of transit to the underworld and the healer joyfully become the killer. This, therefore froms the nooks and crannies of discussion in this article where we shall examine the the concept of ‘euthanasia’ or ‘mercy killing’ and assisted murder in relations to Nigerian municipal laws.

Key words: Euthanasia, Mercy Killing, Physician-Assisted Murder, Nigerian Laws, Right to Life.

1.0 Introduction

Globally and historically, the word euthanasia, Mercy killing or Assisted suicide usually engender immense controversy and divergent perspectives just like other life and death issues such as abortion. Most of these different views are usually as a result of differences religious beliefs, legal system, ethical and moral values, social and economic pillars. In the legal sphere, most opponent of euthanasia (also referred to as ‘pro-life’ adherents) base their legal and moral submission against euthanasia or Mercy killing and assisted suicide on the principle of sanctity of hunan life and the need to give utmost respect to it sustainance. The pro life adherents won’t therefore hesitate to antagonise every law in support of euthanasia or assisted suicide and thereby invoke host of national and international instruments that guarantee the right to life, it sustainability and the promotion of it sanctity. These instruments include the municipal laws (constitutions) of most countries of the world and international instruments such as the Universal Declaration of Human Right (UDHR) 1948[1], the International Covenant on Civil and Political Rights (ICCPR) 1966[2] and the African Charter on Human and People’s Rights 1981[3]. As a matter for fact, euthanasia and assisted suicide is either wholly or partly prohibited or decriminalized in most countries of the world.

The opinion that euthanasia is morally permissible is traceable to Socrates, Plato, and the Stoics. It is rejected in traditional Christian belief, chiefly because it is thought to contravene the prohibition of murder in the Ten Commandments[4]. However, three European countries[5] have legalized both physician-assisted suicide and active euthanasia and the U.S states of Oregon and Washington have passed legislation regulating physician – assisted suicide.

According to Encyclopedia Britannica, euthanasia or Mercy Killing is the act or practice of painlessly putting to death persons suffering from painful and incurable diseases or incapacitating physical disorder.[6] Etymologically, the word is a derivative of two Greek words ‘Euthukos’ which means’ good cheer’, ‘courage’ or ‘cheerful’ and ‘thanatos’ which means ‘death’. In the words of Black’s law Dictionary, euthanasia means “the act or practice of painlessly putting to death persons suffering from incurable and stressing disease as an act of mercy”.[7] The term normally implies an intentional termination of life by another at the explicit request of the person who wishes to die.

Assisted suicide, also known as assisted dying or medical aid in dying, is suicide undertaken with the aid of another person. The term usually refers to physician-assisted suicide (PAS), which is suicide that is assisted by a physician or other healthcare provider[8].

1.1 Forms of Euthanasia.

Euthanasia can either be passive or active in form.

1.1.1 Active Euthanasia

According to Black’s Law Dictionary, this form of euthanasia is performed by a facilitator (such as a health care practitioner) who not only provides the means of death but also carries out the final death causing act. It entails the taking of specific steps to cause the death of another such as injecting the patient with a lethal injection or medication. In practice, this may be undertaken by the use of an overdose of painkillers or sleeping medication.

1.1.2 Passive Euthanasia

This is the act of allowing a terminally ill person to die either by withholding or withdrawing life sustaining support, such as a respirator or feeding tube. In other words, the withdrawal of medical treatment accompanied with a deliberate intention of causing the death of another.

1.1.3 Voluntary Euthanasia

This is euthanasia performed with the consent of terminally ill person. Such patient may grant such consent in advance, sometimes by way of a living will or directive which may simply, while still legally capable, declare that his life be terminated or request that lifesaving treatment be stopped with full knowledge that it will invariably lead to death.

1.1.4 Non Voluntary Euthanasia

This is euthanasia of an incompetent and therefore non-consenting person. It may arise in situations where the consent of the affected person is unavailable such as where the patient is unconscious or is otherwise incapable of granting consent. Consent may at times be given by the family member(s) of the affected person.

1.1.5 Involuntary Euthanasia

Euthanasia carried out on a competent non consenting person. This type of euthanasia is performed on a person who would be able to provide informed consent but does not either because they do not want to die or because they were not asked. Involuntary euthanasia is widely opposed and regarded as a crime in all legal Jurisdictions. Reference to or fear of it is often used as a reason for opposition to other types of euthanasia.

2.0 Legal Definition of Culpable Homicide under the Nigerian penal Laws.

It is trite that two system of penal law operate in Nigeria; the Penal Code in the northern Nigeria while the Criminal Code in the southern Nigeria. These two codes have give explicit definition of the the term ‘homicide’. Under the Penal Code we have culpable homicide punishable with death and culpable homicide not purnishable with death. However under the Criminal Code it is called Murder and manslaughter respectively. The penal laws in Nigeria however frown at the taking of life of one person by the other and there criminal such act.

The offence of Culpable Homicide punishable with death is defined, thus:

“Whoever 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 to commit the offence of culpable homicide.”[9]

Also the Criminal Code defines the offence of murder as follows:

“Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances that is to say:

(a) If the offender intends to cause the death of the person killed, or that of some other person; (b) If the offender intends to do to the person killed or to some other person some grievous harm;

(c) 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;

(d) If the offender intends to do grievous harm to some person for the purposes of facilitating the commission of an offence which is such that the offender may be arrested without warrant, or 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 of facilitating the flight of an offender who has committed or attempted to commit any such offence;

(e) If death is caused by administering any stupefying or overpowering things for either of the purpose last aforesaid;

(f) If death is caused by willfully stopping the breath of any person for either of such purpose, is guilty of murder.[10]

3.0 MURDER UNDER THE CRIMINAL AND THE PENAL CODE.

Basically, there is a grund norm that governs Nigeria as a country which is the Constitution. The Constitution is the law that governs everyone who resides in the country. It is the Supreme law and any other law that is inconsistent with it shall be null and void . There are also plethoral ofActs that governs different activities or transactions among Nigerians in the country. But under this sub-topic, our main focus is on the offence of murder under the criminal and penal code.
Murder simply means the unlawful killing of another person. This definition is basically in a layman’s language. Under section 316 of the Criminal Code, the definition and ingredients of murder is expressly stated. Murder was defined in the case of Nwokearu v. State as the taking of human life by a person who either; has a malicious and willful intent to kill or do a grievous bodily harm or is wickedly reckless as to the consequences. Also in the case of Ezeugo v. State , the court categorically stated the ingredients of murder and punishment under the criminal code which are the death of human being, the death of the deceased resulted from the act of the accused, the killing was unlawful, and grevious bodily harm was the probable consequence. All these ingredients are all stated under the criminal code which must be proven beyond all reasonable doubt by the prosecution. It should be noted that for an accused to be convicted of any criminal offence, the prosecution must prove their case beyond all reasonable doubt which is the requirement that must be met before an accused can be convicted. This principle was reaffirmed in the case of Famakinwa v. State . The charge of murder can be filed under both section 316 and 319. In an offence of murder, intent to kill must be proved by the prosecution before the accused can be convicted for murder . If the prosecution fails to prove beyond all reasonable doubt the intent to kill by the accused, the accused can be convicted for a lesser charge (manslaughter).
Under the penal code, offence of murder or culpable homicide punishable with death is expressly stated under section 220 of the penal code. In the offence of murder under the penal code, the same ingredients stated under the criminal code must also be proved by the prosecution beyond all reasonable doubts. However, in the case of Ejelikwu v. state4, it was held that, in a charge of murder, a culpable homicide punishable under section 221 of the penal code, the prosecution must prove unequivocally the cause of the death of the deceased and failure to do so is fatal, the effect of which is that the accused must be discharged. In this case, the court seems to emphasized more on the proof of the cause of death by the accused by the prosecution beyond all reasonable doubt.
Where there is no intention to kill by the accused, the accused can be charged with manslaughter under the criminal code and culpable homicide not punishable with death under the penal code.
4.0 Consent under both codes
The concept of murder under the criminal code and penal code has been discussed extensively. It is understood that it is unlawful to cause the death of another person unless it is authorized or justified by an authority. The omission or the doing that cause the death can constitute the offence of murder under the penal and criminal code. The question may arise as to whether the accused is still guilty of the offence of murder where the deceased consented to his death. According to section 326 of the criminal code, any person who aids or procures another to kill himself or counsels him to kill himself will be liable to imprisonment for life . This section impliedly suggests that anyone who kills another who consented, is guilty of the offence of murder . Similarly, anyone who counsels, induce or aids another to kill himself is also guilty under the criminal code.
Therefore, it is not a defense under the charge of murder to raise the defense of consent. Anyone who administers drug, lethal injection or medication will definitely be guilty of murder, manslaughter or assisted murder.
Like the criminal code, the penal code ditto provides for the offence of murder, manslaughter and assisted murder. Murder is referred to as homicide punishable with death while manslaughter is referred to as homicide not punishable with death. The punishment of these offences are similar to the same offences in the criminal code. In the case of Anunto Rurnagat V. Empire , the accused in this case and his wife lost their child and agreed to kill each other. The husband killed his wife but his courage failed him to kill himself after. He then called his brother to help him but his brother disarmed him instead of killing him. It was held that the accused could rely on section 222(5) of the penal code which provides that.
In the case of Medical and Dental Practitioners Disciplinary Tribunal V. Dr. John Emewuluokonkwo , the Supreme Court indicates the support of mercy killing. This case has been an argument among scholars as to whether Nigeria is in support of mercy killing or not but with the provisions of the constitution and other codes , mercy killing or euthanasia is a crime under Nigerian laws.

5.0 Legal implication of mercy killing on human rights.
The concept of mercy killing under the criminal and penal code has been examined. Therefore, it is sufficient to say that mercy killing or assisted suicide is a crime under both codes. Scholars in support of the legalization of mercy killing believe that where one has right to life, he should also have the right to die and posits that the right to life is not contrary to right to die. It is sufficient to examine the 1999 constitution of Nigeria 2011 as amended on fundamental rights. Chapter four of the constitution provides for the fundamental human rights. It further provides that every person has the right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria . According to this section of the constitution, the right to life is guaranteed and no one shall deprive anyone of this right. It is submitted that where the right to life is not guaranteed, all other fundamental rights are meaningless or of no use. According to Augustine Alegeh SAN, a former president of Nigerian Bar Association said the greatest gift of mankind as far as law is concerned is the evolution of fundamental human rights as an inalienable right. It is then safe to say that life is sacred and man should not be deprived of such right. The apex court has also held that the right to life should not be read in isolation and therefore be given wider interpretation. Therefore, it is to be understood that the right to life covers all aspects of life including till the time of death of the person, for a person has no right to die whatsoever.

6.0 Conclusion

There has always been a contention whether there should be legalisation of euthanasia or not. This is because every scholar in support of any of the position of the law has different background and all other societal influence that affect ones judgement about the law. It is submitted the Nigerian laws both the penal code and the criminal code is vague, in fact, archaic. In the criminal code, euthanasia is a crime whereas Dr. Okonkwo’s case the court made passive euthanasia legal to the decision of the apex Court. In the penal code, euthanasia is legalised to some extent. This make both codes ambiguous and thereby argument is bound to ensue. It is also noted that the codes are archaic and thereby there is a need to amend these codes to meet the present and future needs. If these codes had been amended there wouldn’t have been a conflicting statement or decision in the criminal code and the case of MDPDT v. Dr. Okonkwo supra. But nevertheless, euthanasia still remail illegal in our legal system.

References:

Mike Chekwube Obi “A Critical Appraisal of Euthanasia Under Nigerian Laws”

Black H.C Black’s Law dictionary

Encyclopedia Britannica

The Holy Bible (KJV)

International Treatise such as UDHR, ICCPR, ACHPR.

Criminal Code Act Cap. C38 LFN 2004

Penal Code LFN 2004

1999 Constitution FRN (as amended) in 2011.

Folorunso Samuel Oluwatobi and Akintunde Kehinde Opeyemi are both 300 Level Law Students of the Faculty of Law, Adekunle Ajasin University, Akungba-Akoko, Ondo State, Nigeria. Email: [email protected], [email protected] Tell: 09093670072, 07063124788 respectively.

[1] Article 2
[2]Article 6

[3]Article 4

[4]Exodus 20:13, Deuteronomy 5:17.

[5]The Netherlands, Luxembourg and Belgium.

[6]Encyclopedia Britannica, ‘euthanasia’ available at https://www.britannica.com/topic/euthanasia accessed on 19/12/21 at 4:15pm

[7] Black H.C, Black’s Law Dictionary (USA: St Paul’s Minn-West Publishing Co, 1991) p.554.

[8]Wikipedia, assisted suicide, available at https://en.m.wikipedia.org/wiki/Assisted_suicide accessed on 19/12/21 at 4:32pm

[9]Section 220, Penal Code.

[10]Section 316, Criminal Code.

[11]Section 1(3) CFRN 1999 as amended in 2011

[12] (2013) 16 NWLR (pt1380) 207

[13] (2013) 9 NWLR (pt 1360)508

[14] (2016)11 NWLR (pt.1524)538

[15]Sunday Omini v. State (1999) 12 N.W.L.R (pt.360) p. 168 S.C

[16]Cap.C38,LFN2004.

[17]Statev.Okezie(1972),2E.C.S.L.R.419

[18](1867) 6 W.R. p.57

[19] (2001) 3 S.C. 76

[20]Section 33 CFRN 1999 as amended in 2011