OBI: A critical Appraisal of Euthanasia under Nigerian Laws

A CRITICAL APPRAISAL OF EUTHANASIA UNDER

NIGERIAN LAWS

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. Debate over euthanasia is not a
recent phenomenon. Over the years, public opinion, decisions of courts, legal and medical approaches
to the issue of euthanasia in Nigeria have been conflicting. The connection between right to life and
right to die has been attempted in a few debates. Although it is widely accepted that murder is crime
under the Nigerian law, a clearly defined stand has not been taken on euthanasia. The Nigerian
populace views euthanasia as an unnecessary paradox, murder in disguise, a situation where the
supposed healer becomes a killer. This, therefore, forms the nitty-gritty of discussions in this article.

Key words: Euthanasia, Nigerian Laws, Right to Life, Critique

1. Introduction
In recent times, the concept of euthanasia has come increasingly under the spotlight due to the
on-going technicization of medicine. There are several other compounding factors making the
issue of euthanasia a pressing problem for contemporary society. First, there has been a shift
in the perception and understanding of death; death, being technicized and depersonalized, is
no longer a natural event at all particularly in Western societies. Human rights have become a
cornerstone of modern medicine. In response, three European countries1 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. Drawing on the experience of
these countries, it would be meaningful to examine how such proposals will affect Nigeria
going by a shrewd call by the minority of her population to legalize the practice in Nigeria.

This article looks into the definition and classification of euthanasia exhuming the historical
evolution of the concept in Nigeria, and treating in the main, the legal position of the practice
in Nigeria. The study further strengthens, through a critical appraisal, the danger of
decriminalizing the practice in the country.

2. 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
disorder.2 Etymologically, the word is a derivative of two Greek words 'Euthukos' which
means' good cheer', 'courage' or 'cheerful' and 'thanatos' which means 'death'.3 Euthanasia
therefore implies painless termination of the life of a person who is suffering from an incurable,
painful or distressful disease or handicaps. 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”.4 The term normally implies an intentional termination of
life by another at the explicit request of the person who wishes to die.5

*By Mike Chekwube OBI, LL. B (Hons) (ANSU), LL.M (Unilorin), BL. Associate Lawyer, Clems Ezika’s
Chambers, Awka. E-mail: [email protected]; phone no: 08068031350.
1
The Netherlands, Belgium and Luxemburg.
2
B.A Omipidan “Euthanasia: The 21st Century Culture of Death” vol.7 No.1(2011) Nigerian Bar Journal, p.213
3
R.I Adebayo, “Euthanasia in The Light of Islamic Law and Ethics” vol. 11, (2008) Journal of Nigeria Association
of Arabic and Islamic Studies p.1.
4
Black H.C, Black’s Law Dictionary (USA: St Paul’s Minn-West Publishing Co, 1991) p.554.
5
C.B William, Euthanasia (Ohio: The McGrawHill Companies Inc., 2007) p.1.

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Laber Cyclopedia Medical Dictionary defines it as “an easy, quiet and painless death”.6 It
further states that euthanasia involves “putting an end to the lives of people with incurable or
terminal illness of unbearable suffering”7. According to the Oxford English Dictionary,
euthanasia is “bringing about a merciful and painless death for persons suffering from incurable
and painful disease.”8 Chamber 21st Century Dictionary defines euthanasia as an act or practice
of ending the life of a person who is suffering from an incurable and often painful or distressing
illness.9

In the Oregon’s Death with dignity Act,1997, a person is qualified to be euthanized when he
or she is terminally ill and, in the opinion of a physician, he or she has only six or less than six
months to live.10In the Netherlands where euthanasia and assisted suicide are legalized, both
concept are defined as a situation where an individual experiences intolerable pain or suffering
(even if such person is not terminally ill), such that the illness is irreversible.11

To some scholars, euthanasia is the intentional premature termination of another person’s life,
either by direct intervention (active euthanasia) or by withholding life-prolonging measures
and resources (passive euthanasia), either at the express or implied request of that person
(voluntary euthanasia), or in the absence of such approval (non-voluntary euthanasia).12 From
a legal angle, Bamgbose views euthanasia as the taking of human life by another or with the
assistance of another.13 It is pertinent to state here that there is no controversy as to the origin
of the word euthanasia, just as the dictionaries afore-mentioned; almost all the authors and
writers trace their definitions to ancient Greek. 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, but many advocates of euthanasia define mercy
killing more precisely as the ending of another’s life without his or her request.14

A close examination of these definitions above indicates that the practice involves three parties,
namely, the dying patient, the family of the dying patient, physician and or the doctor who is
to carry out the action. The dying patient out of distress may use his initiative to voluntarily
request a physician to terminate his life. The concept of euthanasia would not apply to a person
who sleeps away peacefully and painlessly without any intervention after a fulfilled life.
Euthanasia requires an intervention by the person wishing to die or by a person acting on her
behalf to hasten a wanted death.15

6
Labe r Cyclopaedia Medical Dictionary, vol. III, cited in ‘B.A Omipidan “Euthanasia: the 21st Century Culture
of Death” p.213
7
B.A Omipidan, op cit., p.213.
8
A. S. Hornby, Oxford Advanced Learners Dictionary of Current English (7th ed, New York: Oxford University
Press, 1997) p. 500.
9
Chamber 21st Century Dictionary (Cambridge: Cambridge University Press, 2000); See also T. Norchaya,
Euthanasia: A Malaysian Perspective (Asia: Sweet & Maxwell, 2002) p. 7
10
‘Oregon’s Death With Dignity Law and Euthanasia in the Netherlands: Factual Disputes” available on
<http://www.leg.state.vt.us/reports/04death_with_diginity_report.htm>accessed on 28 August, 2014; See also
B.A Omipidan, op cit, p.213.
11
Ibid
12
S. Vaknin “Euthanasia and Right to Die.”<http://www.samrak.tripod.com/euthanasia.htlm>Accessed on 26
August 2014.
13
O. Bamgbose, “Euthanasia: Another Face of Murder” vol. 48 No.1, (2004) International Journal of Offender
Therapy and Comparative Criminology, pp.111 – 121.
14
C.B William, op cit.
15
R.I. Adebayo, opcit.

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 OBI: A critical Appraisal of Euthanasia under Nigerian Laws

3. Classification of Euthanasia
According to a Omipidan16, euthanasia can be categorized under six headings. They include:
passive euthanasia; active euthanasia; physician-assisted suicide; voluntary euthanasia;
involuntary euthanasia; and non-voluntary euthanasia.17

Passive euthanasia: This is hastening the death of a person by altering some form of support
and letting nature take its course.18Examples include such things as turning off respirators,
halting medications, discontinuing food and water so as to allow a person to dehydrate or starve
to death or failure to resuscitate. Passive euthanasia also includes giving a patient large dose of
morphine to control pain, inspite of the likelihood that the painkiller will suppress respiration
and cause death earlier than it otherwise would have happened. Such doses of painkillers have
a dual effect of relieving pain and hastening death. Administering such medication is regarded
as ethical in most political jurisdictions and by most medical societies. These procedures are
performed on terminally ill, suffering persons so that natural death will occur sooner. They are
also commonly performed on persons in a persistent vegetative state, for example, individuals
with massive brain damage or in a coma form who likely may not regain consciousness.19

Active euthanasia: Active euthanasia involves causing the death of a person through a direct
action, in response to a request from that person.20The important difference between active and
passive euthanasia is that, in passive euthanasia, the doctor does not do anything directly to
bring about the patient’s death. The doctor does nothing, and the patient dies of whatever ills
already afflict him. In active euthanasia, however, ‘the doctor does something directly to bring
about the patient’s death: he kills him’.21The physician is the instigator of the death.22The
doctor who gives the patient with cancer a lethal injection has himself caused his patient’s
death, whereas, if he merely ceases the treatment, the cancer is the cause of the death. 23A well-
known example of active euthanasia was the death of a terminally ill Michigan patient on
September 17, 1998. On that date, Dr Jack Kevorkian videotaped himself administering a lethal
medication to Thomas Youk, a 52-year old Michigan man with amyotrophic lateral sclerosis.
CBS broadcast the videotape on 60 minutes less than a weak latter. Authorities subsequently
charged Kevorkian with first-degree premeditated murder, criminal assistance of a suicide, and
delivery of a controlled substance for administering lethal medication to a terminally ill man.
There was no dispute that the dose was administered at the request of Mr. Youk, nor any dispute
that Mr. Youk was terminally ill. A jury found Kevorkian guilty of second-degree murder in
1999, and was sent to prison.24

Physician-assisted suicide: This is somewhat of hybrid between passive and active euthanasia.
In this situation, a physician supplies information and or means of committing suicide (e.g, a
16
B.A Omipidan, opcit.
17
See Also L Robin, Oregon’s Death with Dignity Law and Euthanasia in Netherlands: Factual Disputes (USA:
Montpelier Publishing, 2004) p.3.
18
C.B William, op cit.
19
Ibid, pp.1-2
20
Ibid, p.2
21
V.B Louis-Jacques, “Voluntary Active Euthanasia: The Debate” in Kure(ed.) The “Good Death” Controversy
in Humans and Animals (Croatia: Intech, 2011) p.34.
22
D. Brock, “Voluntary Active Euthanasia” in H. J. Curzer, (ed.), Ethical Theory and Moral Problems (Belmont:
Wadsworth, 1999) pp.46-54.
23
See J. Rachel, “Active and Passive Euthanasia” vol.292 No.19 (1975) New England Journal of Medicine
pp.1911-1914.
2424
‘Oregon’s Death With Dignity Law and Euthanasia in the Netherlands: Factual Disputes” available on
<http://www.leg.state.vt.us/reports/04death_with_diginity_report.htm>accessed on 28 August, 2014; See also
C.B. William, op cit.

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prescription for 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. This can also occur when
a person is assisted, either through guidance or means to take his or her own life; same is called
assisted suicide.25 It has been explained as a physician providing medications or other
interventions to a patient with the understanding that the patient intends to use them to commit
suicide.26Physician assisted suicide received greater public attention after Dr Kevorkian, a
retired pathologist from Michigan, participated in his first such procedure in 1990. Kevorkian
set up a machine that allowed a 54-year-old woman suffering from Alzheimer’s disease (a
degenerative neurological condition) to press a button that delivered a lethal poison into her
veins.27

The U.S Supreme Court has made two important rulings on assisted suicide. In Washington v.
Glucksberg,28three 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 right
to prohibit assisted suicide.29. In Vacco v. Quill, 30the 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. That is to say that he or she is matured, sane and competent enough to understand
her action or demand.31The patient might have also given this consent in the form of an advance
directive before he or she becomes incapacitated, or unconscious (coma) as a result of the
sickness.32Voluntary euthanasia can be either voluntary active33 or voluntary
passive.34According to Omipidan,35 passive voluntary euthanasia occurs when a patient dies as
a result of the withdrawal of his or her treatment. This withdrawal includes disconnecting the
patient from a life support machine.36Under this circumstance, the patient is competent and has
already expressed her/his willingness to be disconnected from a life support device should the
continuation of treatment become futile in the future.37

25
The assistance referred to here, includes a situation where the person concerned orally takes an overdose of
drugs prescribed or made available to him by a physician, doctor, nurse or even a Chemist.
26
Oregon’s Death with Dignity Law and Euthanasia in England: Factual Disputes, p3.
27
It should be noted that Kevorkian was charged with murder several times but was not initially found guilty.in
December 1994, Michigan’s Supreme Court in People v. Kevorkian,447 mich.436, 527 N.W.2d 714, held that
there is no constitutional right to commit suicide, with or without assistance, and upheld the Michigan statute that
made assistance suicide a crime, and his further appeal to the Supreme Court was refused.
28
521 U.S.702, 117 S.Ct.2258, 138 L.Ed.2d 772, 65 (1997).
29
The Supreme Court position is that(i)asserted right to assistance in committing suicide was not a fundamental
liberty interest protected by Due Process Clause, and (ii) Washington ban on assisted suicide was rationally related
to legitimate government interests.
30
521 U.S. 793, 117 S.C T. 2293, 138 L.Ed.2d 834 (1997)
31
B.A. Omipidan, op cit.
32
MDPDT V. Okonkwo [2001] 7NWLR (PT.617.) P208-255; [2001] FWLR (Pt.44) 542
33
See Oregon’s Death with Dignity Law and Euthanasia in The Netherlands: Factual Disputes, op cit.; See also
D.W Brock, op cit.
34
B.A. Omipidan, op cit, p.216.
35
B Omipidan
36
Ibid.; See also F. Adaramola, Basic Jurisprudence (Nigeria: Raymond Kunz Communications, 2004) pp.67-71.
37
See D.E. Meier, “A National Survey of Physician Assisted Suicide and Euthanasia in the United States” vol.338
(1998) Washington State Journal of the Medicine pp.1193-1201; See also Y. Kamisar, “The Reasons So Many

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OBI: A critical Appraisal of Euthanasia under Nigerian Laws

Voluntary active euthanasia, on the other hand, is intentionally administering medications or

other interventions to cause a patient’s death at the patient’s explicit request and with full
informed consent.38

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
consciousness39. In a bit similar to the above definition, Omipidan sees involuntary euthanasia
as a situation, “when, in the conclusion of the executioner, it is in the best interest of the patient
that he or she is euthanized.” According to Robin, involuntary (active) euthanasia is
intentionally administering medications or other interventions to cause a patient’s death when
the patient was competent but without the patient’s explicit request and or full informed consent
(e.g. patient was not asked)”40. Research has shown that majority of those who are victims of
involuntary euthanasia are mostly infants or babies born with deformities by physicians in
conjunction with the parents of such babies.41

4. History of Euthanasia in Nigeria

The practice of euthanasia and assisted suicide can be said to be denuded of any history in
Nigeria. What may however be said to be something similar to non-voluntary euthanasia was
practised by the beleaguered Nupe in the present Niger State. This practice was not limited to
them alone; it also extended to all other ethnic groups who were involved in inter and intra
tribal wars of the 19th and 20th centuries.42 The nature of this non-voluntary euthanasia was the
killing of infants. These infants were usually exposed by their parents as a way of running for
cover to avoid being caught by the enemies. Considering the fact that lots of things happened
during wars, the children usually cry endlessly, largely due to illnesses and hunger. These cries
may attract the enemies to know the hiding place of their allies. So as a way of avoiding being
caught, they will abandon the children. This is so because the wailings of the babies could
attract enemies to their place. To therefore avoid being caught by the enemies, babies will be
abandoned while they too scurry to hide. Thus after being bitten by rain, sunshine, infections
and most importantly hunger, many of them died.43

What may be viewed as the present day euthanasia can also be related to the old practices in
the present southeastern part of the country, wherein the custom and tradition of the people
permits killing of twins. It was seen as abomination for a woman to give birth to two set of
children at a blow. The custom made it compulsory for the parents of such baby twins to kill
them immediately or sooner after their birth, and throw them at the evil forest.44However, what
should call to our mind is the manner such infants were killed. It could be noted that some
parents had the mind or morale to physically kill those children by either strangling them to
death or stopping their breath. Some who could not have such mind looked for certain herbal

People Support Physician-Assisted Suicide and Why These Reasons Are Not Convincing,” in R. Baergen(ed.)
Ethics at the End of Life (Idaho: Wardworth, 2001) pp. 175-184.
38
E. Emmanuel, “Euthanasia: Historical, Ethical, and Empiric Perspectives” vol. 154 (1994) ArchInternMed,
39
C.B.William ,op cit, pp.3-4.
40
B.A. Omipidan, op cit, p. 216.
41
Ibid.
42
Information supplied by Dr. B.A. Omipidan, Sub-Dean, Faculty of Law, University of Ilorin. (5 th September,
2014).
43
F. Adaramola, Basic Jurisprudence (3rded, Nigeria: Raymond Kunz Communications, 2004) p. 68.
44
Information supplied by Late Madam T. Okpaluba, a woman leader, and Pupil Teacher,
(Akpo: 1996).; See also M.C. Obi, “Right to Life with Reference to Euthanasia: A Legal Insight, (Seminar Paper
Presented to LL.M Class, University of Ilorin, 2014) p.11

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concoction which they either prepared themselves, or obtained from a herbalist and administer
such poisonous locally-made substance orally to the newly born twins, which would
incidentally lead to their death.45

It could be noted that it is obligatory upon the parents of such infants to kill them, because
giving birth to twin is considered as taboo then, and any parents or family that refused to
perform the killing would be either ex-communicated or banished from the village. It could be
gathered that this practice persisted till late 1940’s when the missionaries and foreign
humanitarians such as Mary Sellessor fought vigorously against it. It took a serious intervention
from both the Nigerian government and foreign humanitarians to stop this practice. But that
notwithstanding, the practice kept on going until it was criminalized as infanticide. Thus, in the
case of R v. Chima,46a woman gave birth to twins and within an hour afterward, she killed them
because of a custom prevalent in her town that it was an abomination to give birth to twins.
She was convicted of murder but on appeal, it was held that the conviction, if any, should have
been for infanticide, and not murder.

The history of euthanasia in Nigeria cannot be without mentioning the Supreme Court decision
in Medical and Dental Practitioners Disciplinary Tribunal v. John Nicholas Okonkwo47. In
that case, the Supreme Court per Ayoola JSC held among other things that, ‘if a competent
adult patient exercising his right to reject lifesaving treatment on a religious grounds, thereby
chooses a patch that may ultimately lead to his death, in the absence of judicial intervention
overriding the patient’s decision, what meaningful option is the practitioner left with, other,
perhaps than to give the patient the comfort?’48 It was also the Supreme Court decision in this
case that a patient has a constitutional right to object to medical treatment on religious grounds.
In that decision, the Court held that “the right to freedom of thought, conscience or religion
implies a right not to be prevented, without lawful justification, from choosing the course of
one’s life, fashioned on what one believes in, and a right not to be coerced into acting contrary
to one’s religious belief.”49 The court also stated that the physician can lawfully withdraw any
form of treatment on a patient who by refusal of blood transfusion consented to die on ground
of religion. A careful perusal of this judgment by the apex court in the country shows that the
Supreme Court of Nigeria has expressly or by implication approved passive euthanasia in
Nigeria.

Apart from these instances, euthanasia and assisted suicide have no place in Nigeria because
like every typical African customary laws, suicide and deliberate killing of the one who is ill
is a taboo and an abomination in the country.50

Thus it can be said that euthanasia and or assisted suicide is illegal in Nigeria. This illegal status
is however not as a result of any special legislation, but as based on existing laws which do not
specifically provide for euthanasia and assisted suicide. 51 As started from the ancient time,
across the countries and jurisdictions that have legalized same till date, debates on same are
already on. A school of thought may be of the opinion that a call for legislation at this stage is
premature, since agitation on the issue is yet to begin.

45
Ibid
46
(1944) 10 W.A.C.A. 223
47
[2001] FWLR (pt. 44) 542.
48
supra, per Ayoola J.S.C, pp. 244-245.
49
supra, p 219.
50
M.C. Obi, op cit, p.11.
51
Information supplied by Dr. B.A. Omipidan, op cit.

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 OBI: A critical Appraisal of Euthanasia under Nigerian Laws

5.State of Euthanasia under the Nigerian Law

The penal laws in Nigeria are governed by statute. Under the Penal Code52 applicable in
Northern Nigeria, and Criminal Code53 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 for. 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.54

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. A
proverbial saying in Igbo has it that mkpomkpo ndu kaonwu mma. Literally interpreted, it means
the worst health is better than death55. In 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 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 Criminal
Code Act56 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
causing of his own death does not affect the criminal responsibility of any person by whom
such death is caused.57In State v. Okezie,58 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 felony, and is liable to imprisonment for life.” 59 This is
contrary to the laws of some western states, such as the Oregonian Death with Dignity Act,
where in 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 safe-guard 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

52
Cap.P3 LFN, 2004.
53
CAP.C38, LFN. 2004.
54
C.O. Okonkwo, “Medical Negligence and the Legal Implication” in B. C. Umerah(ed.), Medical Practice and
the Law in Nigeria. (Lagos: Longman, 1989) pp.119 – 120.
55
Though Yoruba custom which approves suicide (eg, the option of committing suicide by Oba or Alaafin upon
presentation of empty calabash) may also approve euthanasia, but carrying out such an act in Igbo land amounts
to taboo, and the body of such person to be thrown to evil forest with no form of any burial/funeral ceremony,
thereby, stamping indelible stigma in the deceased’s family. See M.C. Obi, op cit, p.11.
56
Cap. C38, LFN 2004.
57
See C.O. Okonkwo, Criminal Law in Nigeria (Ibadan: Spectrum Law Publishing, 1994) pp.231-232; see also
subsections (1) and (2) of section 316 of the Criminal Code; also see sections 229 and 222(5) of Criminal and
Penal Codes, 1990 respectively.
58
(1972),2 E.C.S.L.R. 419
59
Section 326, Criminal Code, 1990.

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Act.60 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 Nigeria Law, which fortunately and
unfortunately does not include euthanasia) attracts death penalty under Nigerian Law. Thus,
section 220 of Penal Code61provides 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.62

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, or that the patient’s life span is
six (6) months or below, or that he /she or the family members consented to his /her killing.
Under the Nigerian Law, it is a crime for someone to facilitate suicide of another person,
whether old or young, sick or healthy.63 Thus, section 326 of criminal code states that ’any
person who counsels another to kill himself and thereby encourages him to do so is guilty of
felony, and is liable to imprisonment for life”.64 However, in Nigeria, any person that 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 misdemeanor and is liable to imprisonment for one year.”65 The pertinent question
is whether consent to die exonerates criminal liability on the physician who assisted patient in
dying? Under the Nigerian law, consent by any person of his own death does not exonerate the
killer from criminal liability. Section 299 of Criminal Code provides that “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.”66

Thus, in the case of State v. Okezie67 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, on the chest, and he died. He was convicted of murder despite the fact that 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 own consent”.68The 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 and or otherwise, with the deceased’s consent, attract life
imprisonment or any less term or with fine or with both.

60
See ORS 127.800- 127.897
61
Section 220 of Penal Code 1963
62
Ibid
63
See Section 326 of Criminal Code.
64
See section 326 (1) and (2) Ibid
65
See section 327, Ibid
66
See Section 299 of Criminal Code.
67
(1972), 2ECSLR. 419
68
Section 222 (5) of Penal Code.

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 OBI: A critical Appraisal of Euthanasia under Nigerian Laws

As earlier stated, 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,69where in the apex court held
inter alia that:

The sum total of the 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.

According to the court, ‘that the patient’s consent is paramount has been determined in several
cases in the United States of America where this area of law has received considerable judicial
attention.’70The Supreme Court further emphasized that ‘the constitutional right of privacy
includes the right of a competent, mature adult to refuse treatment that may prolong one’s life
even though that refusal may seem unwise, foolish or ridiculous to others.71In the court’s
judgment in that case, it was further held that

If a competent adult patient exercising his right to reject life-saving

treatment on religious grounds, thereby chooses a path that may
ultimately lead to his death, in the absence of judicial intervention
overriding the patient’s decision, what meaningful option is the
practitioner left with, other, perhaps than to give the patient comfort?72

It is also the opinion of the court that ‘… the court has refused to override the patient’s decision,
in others, they have found ways round the problem of the paramountcy of the patient’s consent.’
So far as the Supreme Court was concerned in this case, ‘what is important is that in no case
has the decision to override the patient’s decision been left with the medical practitioner or the
hospital’- citing In re Yetter73 in approval. The Supreme Court also affirmed in approval, the
case of In re Osborne74wherein the court affirmed the lower court’s order refusing to appoint
a guardian to give consent for the administration of a blood transfusion to a patient who had
refused it on religious grounds, and whom the physician feared would die without blood, upon
evidence that the patient had validly and knowingly chosen this course and upon the lower
court’s finding that there was no compelling state interest which justified overriding the
patient’s decision to refuse blood transfusions.

69
Supra.
70
See Superintendent of Belkerton State School v. Sackewicz, 93 ALR3d 75.
71
MedicalandDentalPractitioners’DisciplinaryTribunalv.JohnNicholasOkonkwo, supra, p. 245, Paras. G. H.
72
See also the opinion of Uwaifo, JSC. At p.255
73
(1973) 62 Pa D & C2d 619, In this case, upon evidence that the patient was a mature, competent adult, had no
children, and had not sought medical attention and then attempted to restrict it, the court said that the constitutional
right of privacy includes the right of a competent, mature adult to refuse treatment that may prolong one’s life
even though that refusal may seem unwise, foolish or ridiculous to others.
74
(1972), Dist Col App 294 A2d 372,

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Also in the affirmative, the Supreme Court adopted the opinion of Lord Scarman, in
Sideway v. Board of Governors Bethlem Royal Hospital where it opined that “… the court
75

should not allow medical opinion of what is best for the patient to override the patient’s right
to decide for himself whether he will submit to the treatment offered him”; and that of Lord
Templeman,76who was also of the view that ‘the patient is free to decide whether or not to
submit to treatment recommended by the doctor.’

6. Examing the Positions under the Nigerian Laws

Whilst majority of the stake-holders’ view favour the maintenance of the status quo (i.e
criminalizing active euthanasia) in Nigeria,77 almost all the views are silent as regards passive
euthanasia such as with-holding and or withdrawal of the treatment.78 It is also the opinion of
some stake-holders that some artificial method of sustaining life, more especially via feeding
tube and or respirator, that aimed to be of permanent nature is worse than euthanasia itself and
should be discouraged. Surprisingly, however, this study shows that the impression created by
the Criminal Code and Penal Code that all forms of euthanasia and or assisted suicide are illegal
in Nigeria can no longer be sustained.79 The major important finding shows that the Supreme
Court by its decision in John Okonkwo’s case80 has approved passive euthanasia (though not
expressly, but by implication) as legal.

With all due respect, the Supreme Court decision in this case, placing the right to privacy and
right to freedom of thought, conscience and religion over and above the “mighty” right to life,
which is the mother of all the rights in the constitution, is a dangerous oversight, which will,
and can never augur well with the Nigerian jurisprudence. There is no way the above two rights
can take precedence over the right to life. If the trend is allowed in our legal system, there is
every opportunity for our citizens to indulge in all sorts of practices, including euthanasia, on
the ground that it accords to their conscience and privacy. In view of this, it is suggested that
when opportunity arises, the Supreme Court will reverse itself.

It is also the opinion of this author that there is the need to amend the provisions of sections
308 and 222(5) of the Criminal and Penal Codes respectively, in a more specific terms, putting
into consideration, the inadequacy of medical facilities in Nigeria. If these provisions are
applied widely as provided, it means that most physicians in Nigeria will become the tenants
of Nigerian prison yards. The shortage of some medical equipment in Nigeria such as issue of
‘ventilator’ may force some medical practitioners into indulging in some acts capable of being
interpreted as passive euthanasia (or indirectly causing the death of person).81

While this author agrees with the Supreme Court that a patient has a right to object to particular
treatment, this he disagrees with the court that the patient under the law has right to prefer death
where there is available medical treatment such as blood transfusion that can help to revive the
patient’s health. It is quite understandable that the patient has right to reject certain treatments

75
(1985) 1 ALL E R.p.645
76
Ibid, p. 666.
77
The writer was able to interview the stake-holders in the course of this research, including the medical doctors,
lawyers, priests, patients, among others.
78
Although, K.K. Eleja, Esq. (Principal Partner in K.K Eleja & co, Ilorin) in his interview with the writer, is of the
view that withholding or withdrawing treatment e.g. life support machine or ventilator does not fall within any
class of euthanasia, Olaniran maintains in his interview that such act amounts to killing.
79
See MDPDT Okonkwo, supra.
80
Ibid
81
Opinion of Prof. A.O. Mahmud, Medical Consultant, University of Ilorin Teaching Hospital, Ilorin, in an
interview with the writer (15 September, 2014).

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too artificial enough to sustain his life (such as respirator, or feeding tube, etc.), but will not
bring him/her back to a normal or manageable condition.82

It is also gathered that the culture of the people plays important role on their end of life
decisions. Therefore, the yardstick for dignity of human life depends on each individual
countries’ perspectives. While the culture of Oregon sees assisted suicide as dying with dignity,
the African culture, especially that of Nigeria perceives same as suicide, which is recognized
by the Nigerian culture as a taboo. However, while the western culture particularly that of
Oregon appreciates conscious death, seeing death as a result of protracted chronic sickness as
offensive and degrading, Nigeria people do not see anything degrading in such a death. Rather,
they prefer worst health to death. It is therefore, a well-known fact that it is only on rare
circumstances it may be heard that a “pure” Nigerian patient requests for death, as Nigerians
believe that tomorrow or future ‘may carry better thing come’.

There is fear that the legalization of euthanasia will have detrimental effect with regard to
vulnerable population and to the fact that it will transform a healing profession into a killing
profession. The slippery slope argument should be enough reason to criminalize euthanasia and
or assisted suicide. This is so because if euthanasia is legalized, people especially the physicians
and family members or relations who may have certain interests on the death of the patient may
take advantage of the legal frame-work in place to coax the patient into voluntary euthanasia.
As noted, there are certain interests that infiltrate in the mind of the decision makers of
euthanasia which include: the relatives- who may have a vested interest in the estate of the
terminally ill person; the doctor who has lost interest in a protracted and difficult case; and the
hospital administrator, who is short of beds. These factors play a secrete role when deciding on
what becomes of the terminally ill patients. In view of this, no other person will bear witness
as to what transpired between the family relatives and the physician except death.

Adoption of Slippery slope principle as argued by the opponents of euthanasia cannot be

jettisoned in a swift of hurry. It should be noted that legalizing euthanasia alone does not cause
much ado, but its future consequences. In considering the implication, the situation regarding
the practice of euthanasia in Germany should be called to mind. Initially those targeted for
euthanasia were the terminally ill and the mentally and physically handicapped; only those with
the most florid schizophrenic and paranoid psychos and children with severe mental and
physical handicaps – the idiots. At first, it was only the children under 3, and then the age limit
was raised to 8, then 12 and then 17. The little ones were killed by mixing increasing doses of
sedatives with their food, the older ones by injection and later on by gassing. All these were
done by doctors who considered themselves pioneers in social medicine, just like the present
proponents claiming dignity in dying”. The total number of people killed is not known but it
does include more than 300,000 mentally retarded and more than 1,000,000 (One million)
children who were killed for reasons stated, such as odd shaped ears, chronic bed wetters,
behaviour problem, difficult to educate, and those with very dark complexions and dark eyes,
World War I amputee’s, the aged, the infirm and the ill who could not work.83

In view of this, it is opined that legalizing euthanasia in a country like Nigeria, where “anything
can happen”, will progress to other vulnerable communities and may begin to be used by those
who feel less worthy, based on their demographic or socio-economic status. Here, vulnerable
population and patients might be subjected to assisted dying without their genuine consent.
82
M.C. Obi, “Right to Life and Right to Die: A Comparative Study of the Nigeria and Oregonian Laws on
Euthanasia (Thesis Submitted to Unilorin for Award of LL.M in Common Law) p.214.
83
See M.C. Obi, op cit, pp.217-218.

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As observed, some people do not talk about euthanasia so much in the present time, but death
with dignity, instead. The pertinent question to be asked then, is, what does that mean. Is death
ever dignified? When one has been seriously ill for some time and has lost weight, and one is
short of breath and probably confused and is dying, does having a lethal injection make it all
dignified? If we suffer a debilitating illness and we are emaciated and at times confused but
surrounded by those who love us as a person, who tend to our needs compassionately, and
enrich one closing days with love and a feeling of worthiness right to the very end, that strikes
this writer more as death with dignity.84

In a related development, it could be observed that certain discriminating and devaluing names
such as “vegetative” have been ascribed to the patients with terminal sickness. In opposition to
such trend of thought, one is of the view that a person, even if seriously sick or prevented in
the exercise of his higher functions of faculties, is and always will be person. The intrinsic
value and personal dignity of every human being do not change depending on their
circumstances. Not only does the sick person in a vegetative state have right to basic health
care, such as warmth, cleanliness, hydration, nutrition, etc. such natural means of preserving
life should be considered obligatory.

The likelihood of probabilities, founded on waning hopes for recovery when the vegetative
state is prolonged beyond a year, cannot legally and or ethically justify the termination of
minimal care such as nutrition and dehydration for the patient. The only possible outcome of
such an act is death by starvation or dehydration. In this case, it ends up becoming, if done
knowingly and willingly, voluntary passive euthanasia. Such an act is always contrary to both
the natural law and the Universal Declaration of Human Rights, which Nigeria is a signatory
to. Therefore, it is unacceptable under these laws for killing a human person. However,
discontinuing medical procedures that are extremely dangerous, extraordinary, or
disproportionate to the expected outcome, can, however, in certain circumstances where death
is imminent, he legitimates. In this circumstance, the intension of the doer is not to cause death
but prima facie, to allow the nature to take its course.85

However, the quality of life often imposed by socio-economic and psychological pressures
cannot take precedence over general principles according to which even the simple doubt of
being in the presence of a living person morally obliges one to respectively abstain from any
act that aims at anticipating the person’s death.

Meanwhile, the pleas of the terminally ill who sometimes request death should not be
understood as implying a true desire for euthanasia, but it is mostly an anguished plea for help
and love. Legally and religiously speaking, intentionally causing one’s own death, or suicide,
is a rejection of God’s sovereignty and loving plan, and flight from the duties of justice and
charity owed to one’s neighbor and to society. The natural moral law imprinted on each man’s
heart obliges us not to permit in any way the killing of an innocent human being, whether a
fetus or an embryo, an infant or an adult, an old person, or a person who is dying. It is worthy
of note that the moral law forbids that a person requests this act of killing, either for himself or
for another person entrusted to his care. Nor can any authority legitimately recommend or
permit such an action. This is so because it amounts to violation of not only the constitution of

84
Opinion of Rev Fr. Dr Innocent Ozoemenam Dim, Former Pastoral Director, Catholic Diocese of Awka,
(personal communication 03 September 2014)
85
Ibid

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the country86, but also that of the divine law, an offence against the dignity of the human person,
a crime against life, and an attack on humanity. The moment a positive law deprives a category
of human beings of the protection which civil legislation ought to accord them, the state is
denying the equality of all before the law. What a sick person needs, besides medical care, is
love the human and supernatural warmth provided by those close to him such as family, nurses
and doctors.

Nonetheless, the assisted suicide and or euthanasia are a very delicate subject and a painful
problem. Analyzing it with freedom and responsibility does not mean to blame its supporters.
There are some circumstances such as abandonment and isolation a situation where such a
patient cannot even dream of any sort of help and or assistance from any person a situation
where he/she may be denied of any form of love, caring, charity, or even an ordinary assistance.
How then can one blame such terminally ill patient if he or she opts for euthanasia and or
assisted suicide? Whatever the outcome is, it is clear that this area needs much more open
debate from all strata of society, not just those groups who hold steadfast, but extremist’s view
on either side of the argument.

That notwithstanding, if euthanasia is legalized in Nigeria, people and their loved ones will
certainly be affected. The practice of medicine would change because healing and killing would
become equally valid goals of the medical profession. If death becomes a legal right, doctors
will feel obligated to offer death as an option to all of their patients whose treatment they find
a bit difficult. Those at risk of being killed without consent or against their own wishes would
become fearful of seeing a physician, being hospitalized or entering a nursing home. One would
stand viewing medical professionals and even one’s own family members with suspicious
fearing that they will choose death by lethal injection, without one’s consent, or even against
one’s wishes.

7. Conclusion and Recommendations

It has been observed that the impression that all forms of euthanasia are criminalized in Nigeria
is not the truth, as the Supreme Court’s decision in Okonkwo’s case87 impliedly approved
passive euthanasia. The prohibition of all forms of killing (euthanasia inclusive) by both the
Penal Code and Criminal Code, and approval of passive euthanasia vide Supreme Court
judgment amount to double jeopardy, which may lead to legal tsunami in Nigerian
jurisprudence. It is equally observed that the reason for criminalization of euthanasia and or
assisted suicide (though not expressly stated) under the Nigerian criminal law is not far from
cultural perspectives of Nigerians on the sanctity of human life. Further, the disadvantageous
aspect of legalizing or decriminalization of euthanasia in Nigeria through legislation will
outweigh its advantages. There is also high probability of emergency of slippery slope in the
practical aspect of the law, were it enacted in Nigeria.

In view of the foregoing it is recommended that the Nigeria government especially the judicial
and legislative organs should take a bold stance on how to address what amounts to double
standards in the existing laws governing euthanasia practice in the country. As it stands now,
no one can surely say whether or not passive euthanasia is a crime under the Nigerian law. To
this end, it is recommended that either the Supreme Court reversed itself in John Okonkwo’s
case88 as being reached per incuriam, or if there is no possibility of doing so in the near future,
we then suggest that the National Assembly abrogate or nullify the decision in the course of
86
See section 33 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
87
Ibid
88
Ibid

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legislating. This is because the National Assembly has the power in the course of making law
to nullify or abrogate decisions of any court of law, including that of Supreme Court (being a
common law), and once that is done, that particular decision of the court will no more have the
force of law, and court of law cannot question the vires of the legislature to nullify or abrogate
the common law89

There is an urgent need for Nigerian Government to enact a specific law, guiding or governing
the euthanasia/assisted suicide. Going by the modern trend in medical technology, the issue of
euthanasia has become a global trend which requires a specific law to either expressly
criminalize or decriminalize the practice. The taciturnity of the Nigerian law on the subject has
become overdue, hence the need for a specific legislation on that aspect.

Nigerian authorities should not bend only in criminalizing euthanasia via its criminal law. They
should also do well in providing an alternative treatment or care centres such as hospice care,
palliative care, and other medical centers for the management of terminally ill patients. They
should make the services of such centers either free of charge or affordable within the reach of
every citizen of Nigeria suffering pain as a result of terminal sickness. This, when done is
believed to achieve much results rather than criminalizing it. Even if such practice is
criminalized without adequate hospice care or other life care services, the law will not be
effective; people will go ahead doing “their thing” underground. There is also a need for value
orientation among Nigerians pertaining to their steadfastness in upholding their cultural
perspectives on the sanctity of life. They should not allow western civilization to make them
jettison their cultural value in this aspect. To achieve this goal, the press, mass media, and other
social networks have a pivotal role to play. Moreover, seminars and workshops should be
always organized to enable our citizenry uphold the doctrine of sanctity of life enshrined in the
Nigeria constitution.90

Finally, it should be advised that the pleas of the terminally ill patients, who sometimes request
death, should not be understood as implying a true desire for euthanasia, but an anguished plea
for help and love. In view of this it is suggested that we should always show this people love
and care, rather than canvass for their death via euthanasia. Life is a precious gift from God,
which is sacred and should always be treated as such.

89
See A. G. Abia State v. A. G Federation [2006] 16NWLR (Pt.1005) 454.
90
Section 33, Ibid

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