Right to Life

The right to life can be said to be the most fundamental of all rights because without it all, all other rights are not enforceable. When can a human being begin to claim this right? It has been stated that this right begins at fertilization.

Article 2 of the UDHR provides that everyone has the right to life, liberty and security of person.

Article 6 of the ICCPR provides that everyone has an inherent right to life. The right shall be protected by law. No one shall be arbitrarily deprived of his life.

Article 4 of the African Charter on Human and People’s rights provides that Human rights are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of his right.

S.33 of the 1999 constitution provides that:

Every person has a right to life, and no one shall be deprived intentionally of his life, save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.

Who or what at law however, constitutes a person? Per Salmond, a person is any being whom the law regards as capable of rights and duties. Persons are the substance of which rights and duties are attributes. It is also worthy of note that the type of person referred to here is natural persons.

When then does personhood start in relation to a Child? Generally, a child in its mother’s womb is for many purposes, regarded by legal fiction as already born. The court in determining whether the foetus has any right to life whatsoever stated in the case of Roe v Wade, that it is not until the third trimester that the State starts to have an interest in protecting the life of a foetus. Thus, based on this case, the right to life starts at the third trimester of pregnancy. S. 307 of the Criminal code agrees with this in providing that a person is a human being when it comes independent of its independent of its mother’s body whether or not the umbilical cord is severed.

In the German case of Bundesver Fassungsgericht, the court held unconstitutional, a provision which permitted abortion within the first twelve weeks of conception.

In Nigeria, abortion is still a crime under the criminal code and is only permitted when the mother’s life is in danger.

The importance of the preservation of life except where derogation has been constitutionally permitted was emphasized in the case of Nasir Bello v AG Oyo State.

A pertinent question which comes to mind in line with the above principle on the prevention of is whether it is only the intentional deprivation which is attacked under the right to life: Is there not a duty on the part of government to provide an atmosphere conducive to the enhancement of life? Thus, any interpretation of the scope of this right to life must have a minimum quality attached to it, which the government should have a duty to maintain, because anything that affects this quality affects the right to life. It should be noted however that this quality is difficult to define because it is subjective and changes with the times.

The sentence of a court in relation to a criminal offence

Per Professor Akande, there are five offences at present in Nigeria which are punishable by death. They are Murder or Culpable homicide, treason, treachery, armed robbery and directing or controlling or presiding at an unlawful trial by ordeal from which death occurs. However, children under 17 years of age at the time of commission of the offence cannot be sentenced to death. See the case of R v Bangaza. Also, any sentence on a pregnant woman must be suspended until she is delivered of the baby.

Death penalty debate

This is a raging controversy on the death penalty as a means of punishment between the Abolitionists and the Retentionists. Some nations and states in the United States of America have already abolished it. In the Council of Europe, it has been abolished. Also, the provision of the Second optional protocol to the ICCPR enjoins all states to take all measures necessary for the achievement of the eventual abolition of the death penalty.

Certain arguments have been placed by the abolitionists. For instance, and foremost, is the possibility of the execution of a person who may later be found not guilty of the offence for which he was executed. There is also the argument that the death penalty especially in relation to circumstances of delayed execution, is contrary to the right to life, human dignity and amounts to cruel and degrading punishment. In the case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney General, the Supreme Court stated that the delayed execution of the prisoners and the degrading conditions under which they are held was unconstitutional. In Madhu Mehta v Union of India, the death sentence was reduced to life imprisonment because the plaintiff had suffered the mental agony of being under the death sentence for eight years whilst waiting for a decision or his mercy petition. In the South African case of State v Makwanyane, the courts held unanimously that it amounted to cruel and unusual treatment and affects the unqualified right to life guaranteed under S.9 of the South African Constitution.

It can be stated from the above facts that many nations are beginning to see the death sentence as unconstitutional. This debate is however not yet an issue in Nigeria. See the case of Kalu v State where the Supreme Court held that the death penalty was constitutional. The Death penalty seems to still be much in operation in Nigeria.

Euthanasia or mercy killing

There is also an increasing trend worldwide to legalize euthanasia as it has been argued to be an integral aspect of the rights to life and privacy. The Collins English Dictionary defines Euthanasia as an act of killing a person painlessly, especially to relieve suffering from an incurable disease. There are various forms of euthanasia: Passive euthanasia, Active euthanasia, Physician assisted euthanasia and Involuntary euthanasia.

1. Passive Euthanasia involves killing by removal of support, thereby letting nature take its course.
2. Active euthanasia involves killing in direct response to a request from the victim.
3. Physician assisted euthanasia which involves killing or suicide based on information supplied by a doctor or physician.
4. Involuntary euthanasia means killing while the person is in a vegetative state.

Euthanasia has however been permitted since 1999 in Colombia, Japan, Netherlands and the state of Oregon in the United States. Argument given for its allowance is usually the pain suffered by terminally ill patients and the possibility of the existence of a right to die as an extension of the right to life.

See the provisions of the criminal code which makes suicide or any form of assisted suicide in Nigeria, illegal:

S.311- A person who does any act or makes any omission which 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.

S.326- 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.

S.327- Any person who attempts to kill himself is guilty of a misdemeanor, and is liable to imprisonment for one year.

S.299- 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.

Arguments against euthanasia state that the concept of euthanasia is subject to abuses because people suffering from terminally diseases are vulnerable and could be made to undertake actions they would never have done if they were not in such a terminal state. Also, the sanctity of life would be meaningless by the legitimization of assisted suicide. Furthermore, physician involvement with suicide is certainly contrary to their Hippocratic Oath, which is to save life.

Self-defence

Moving back to the provisions of S.33(1) of the 1999 constitution, it can be seen as stated earlier that there is a defence to derogation from adherence to protecting one’s right to life if such derogation is commanded by law. Another exception to derogation lies under S.33(2) stating:

A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary -

(a) for the defence of any person from unlawful violence or for the defence of property:

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or

(c) for the purpose of suppressing a riot, insurrection or mutiny.

Note that the test of reasonableness is objective.

Self defence or defence of another

S.286 states that:

When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault.

In the case of Okonkwo v State, the deceased entered the house of the appellant at 12am with a dagger. The appellant caught hold of the deceased after the deceased tried to stab him and then called out to alarm other people. People came, held the deceased down and beat him to death. The court held the plea of self defence held as there was reasonable apprehension of death by the appellant. In the case of Emmanuel Ubani v State however, the appellant killed the deceased with a machete hit to the neck while the deceased mounted a bicycle to escape the appellant. The court held the plea of self defence could not hold as there could be no reasonable apprehension of fear by the appellant. Also see the case of Odu v State where the appellant used a knife to stab the deceased who was unarmed in fighting the appellant. The court held the plea of self defence could not hold.

Thus, for the plea of self defence to hold:

• The original assault against the accused must be unlawful.
• The original assault against the accused must be unprovoked by the accused himself or herself.
• There must be a reasonable apprehension of death or grievous harm.
• The force used in repelling the attack must be reasonable and proportionate to the force used by the attacker.

S. 288 of the Criminal Code deals with defence to others. It also deals with the protection of other persons’ properties from wrongful invasion.

S.288 basically states that “In any case in which it is lawful for any person to use force in any degree for the purpose a defending himself against an assault, it is lawful for any other person acting in, good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.”

Defence of property

It is worthy of note that such property may be a dwelling place or other property, movable or immovable. S.292 of the Criminal Code states that:

It is lawful for a person who is in peaceable possession of any land, structure, vessel or place, or who is entitled to the control or management of any land, structure, vessel, or place, and for any person acting by his authority, to use such force as is reasonably necessary in order to prevent any person from wrongfully entering upon such land, structure, vessel, or place, or in order to remove therefrom a person who wrongfully remains therein, provided that he does not do harm to such person.

Thus, in the case of Okonkwo v State, there was no doubt that the circumstances of breaking in by the deceased at midnight dictated the conclusion reached by the courts that the appellant and other persons were defending their property from wrongful invasion. Also see the case of Ahmed v State where the court held that the force used in repelling the unarmed assailants was disproportionate and thus, the appellant could not plead defence of property.

Death in the process of effecting lawful arrest or preventing the escape of a person lawfully detained

S.20 of the Police Act gives the police, the power to arrest with and without warrant. Thus, whenever a police officer is to effect the lawful arrest of a person committing a felony, to prevent escape, he can use force that is reasonably necessary or kill if there is no other means of arresting the offender and the life of the Police officer is endangered. Shooting to kill without any danger at hand would amount to at least, the offence of manslaughter. The test for reasonableness here is also objective. See the cases of R v Ndo where killing an escaping felon was held to be murder based on the circumstances and in R v Aniogo, it was held to be manslaughter.

Death as a result of the suppression of a riot or mutiny

See S.276 of the Criminal Code stating that “it is lawful for any person to use such force as is necessary to suppress a riot, and is reasonably proportioned to the danger to be apprehended from its continuance.”

Such action of killing can be taken by a peace officer or any person acting under the directions of a peace officer or any person who believes that serious mischief will result from the riot.