Saturday, 23 June 2018

ABORTION IN NIGERIA: What does the Law say?

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It may be assumed that everyone knows what abortion is. I think it’s one of those words that you just know the meaning without consciously learning it. Nevertheless, a proper definition is important. Abortion is an artificially induced termination of pregnancy with the intention (either express or implied) of bringing about the death of the foetus. Usually, this intention is achieved.

Provisions on abortion in Nigeria are found in the Criminal Code Act and Penal Code Act in Nigeria. These are criminal laws in Nigeria but they differ based on geographical location. The Penal code covers the Northern states of Nigeria while the Criminal Code covers the Southern states in Nigeria. Before going into the actual provisions of these Acts on abortion, note that the Constitution of the Federal Republic of Nigeria is basically pro-life. So, you’ll find certain provisions in the Constitution to the effect that every person has a right to life and nobody should be intentionally deprived of his life except in the execution of the sentence of a court where a person is found guilty of committing an offence.

This may account for why abortion is generally regarded as illegal in Nigeria. The general position of the law on abortion in Nigeria is that it is prohibited. This general position is recognized by both the Criminal Code Act and the Penal Code Act. But there are marked differences in the provisions of both. Let’s consider them:

The Criminal Code Act provides that:
  • Any person that has the intent of causing the miscarriage of a woman whether she is actually pregnant or not; and who, with such intent, unlawfully gives her or causes her to take any poison or even uses force of any kind on her, is guilty of an offence and is liable to imprisonment for fourteen years. Note that this applies to a person other than the woman herself.
  • Now, this is for the woman herself. Where a woman has the intent of causing her own miscarriage whether she is actually pregnant or not; and she unlawfully takes any poison or uses any force of any kind on herself, or even allows such to be used on her, she is guilty of an offence and liable to imprisonment for seven years.
  • Where a person unlawfully supplies to a woman or buys for the woman anything knowing that what he bought is intended to be unlawfully used to cause a woman’s miscarriage, whether she is indeed pregnant or not; that person is guilty of a crime and is liable to imprisonment for three years.
Exception
Note how the word ‘unlawfully’ keeps reoccurring in the Criminal Code. This means there may be instances where abortion may be lawful. The Criminal Code expressly provides for such instances:
  • Where a person, in good faith and with reasonable care and skill performs a surgical operation on a person for his benefit, he is not criminally responsible. The important consideration here is that the performance of the operation is reasonable considering the patient’s state and all other circumstances of the particular case.
  • He is also not criminally responsible where he performs a surgical operation in good faith and with reasonable care and skill on an unborn child for the preservation of the mother’s life. The important consideration here is also that the performance of the operation is reasonable considering the patient’s state and all other circumstances of the particular case. 

The Penal Code Act
  • Here, there is no separate provision for the exception to the criminality of abortion in Nigeria. The exception is embedded in the provision prohibiting abortion. You’ll spot other differences in both Acts as you read.
  • Where a person voluntarily causes a pregnant woman to miscarry (where this is not done in good faith for the purpose of saving the life of the woman) such a person will be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.Where a woman causes herself to miscarry, she is guilty of the above too. Note how miscarriage which is done in good faith in order to save the life of a pregnant woman does not render a person guilty of an offence.
  • Where a person with intent to cause a woman to miscarry (whether she is indeed pregnant or not), does an act which causes the death of the woman, that person shall be punished:With imprisonment which may extend to fourteen years and shall also be liable to a fine. If the person did the act without the woman’s consent then it is life imprisonment or a less term and he shall also be liable to a fine.
It is immaterial that the offender did or did not know that his act is likely to cause death.
 
Where a person uses force on a woman and unintentionally causes her to miscarry, his punishment is imprisonment for a period which may extend to three years or with fine or with both.If the offender knew that the woman was pregnant, his punishment is imprisonment for a period which my extend to five years or with fine or with both.

There was a Nigerian case: Attorney General of the Federation v Ogunro where the court held that to ground a conviction in a case of murder, the prosecution must, with credible evidence, establish the cause of death of the woman and also establish that it was the accused’s actions, with intent to cause miscarriage, that resulted in the death of the woman.

I’ve heard discussions were different reasons are given as to why abortion is a preferred option which should not be prohibited. Some of these reasons are: that the pregnant woman may be unable to properly cater for the child and would rather terminate the pregnancy before the child is born; that the pregnant woman may have been a victim of rape and any child born from the hideous occurrence will be a painful reminder; that everyone should have control over their bodies and what they wish to put their bodies through; that people’s personal decisions should be respected without being subject to morality.

Despite all of these reasons, the position of the law on abortion at any stage of pregnancy is that it is illegal. I included ‘any stage of pregnancy’ because some abortion-activists opine that abortion may be allowed at the period preceding when the baby can survive on its own without its mother. This period has been marked twenty-eight weeks by some. Others say three months. The Nigerian law does not recognize this demarcation. Abortion is expressly prohibited regardless of how many weeks the foetus is. So, before deciding whether abortion is permitted in Nigeria, the pertinent question that should be asked is: Will having this child put the mother’s life in danger? Your answer will determine whether the abortion in that particular instance is legal or not.

Is there any provision at all in any law or case to the effect that abortion is permitted in cases of rape, incest, mental or physical health issues?
Although not expressly stated in the Criminal Laws of Nigeria, certain cases which have persuasive authority in Nigeria have recognized other grounds upon which an abortion operation may be legally carried out on a pregnant woman. A law or a case is said to have persuasive authority where the courts in another country consult those cases or laws as a guide in reaching a decision concerning a case. Although this does not mean the courts necessarily have to follow those cases or laws. English cases have persuasive authority in Nigeria.

In a particular English case, Rex v Bourne, it was held that abortion is allowed in order to save a woman’s life or her physical and mental health. In practice, Nigeria has allowed therapeutic abortion in such cases. Therapeutic abortion is solely to save the mother’s life or health. These cases may be related to instances of rape or incest.
The punishment for abortion remains whether the abortion was successful or not.

Did you know:

That there have been attempts to liberalize the position of the Nigerian law on abortion? There have been three attempts but these attempts failed because they were not recognized and passed into law by the National Assembly in Nigeria.

In the past, 1981 to be precise, the Nigerian Society for Gynaecology and Obstetrics sponsored a Termination of Pregnancy Bill. This Bill did not pass the requirements of being passed into law. That was the end of it.

In 1992, the Ministry of Health led by Prof. Ransom Kuti, sponsored a draft decree titled “The termination of Unsafe Pregnancy and other related matters.” This Bill also failed. 

**Prosecution: the side of a legal case which argues that a person who is accused of a crime is guilty.

**Conviction: the formal declaration by the verdict of a judge in a court of law that someone is guilty of criminal offence.

**Accused: a person who is on trial for a crime.
 
 REFERENCES
  1. W.O. Chukwudebelu & P.C. Nweke, “Abortion and the Law” in B.C. Umerah, “Medical Practice and the Law in Nigeria”, Longman Nigeria, Ikeja, 1989.
  2. M.O. Izunwa & S. Ifemeje, “Right to life and abortion debate in Nigeria: A case for the legislation of the principle of double-effect” http://www.ajol.info/index.php/naujilj/article/viewFile/82392/72547 
 
 
 
 
 
 
 
 

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