THE UNCONSTITUTIONALITY OF NIGERIAN ABORTION LAWS; THE RIGHT WAY TO GO.

Abortion in Nigeria is generally said to be illegal. It is a felony punishable by imprisonment of various terms depending on the gravity and location of the commission of the offence.

Abortion laws in Nigeria provide for the punishment of the person who performs the abortion, to the woman upon whom the abortion is performed, down to whoever assisted in the procurement or performance of the act.

There are, however, some differences between the provisions on abortion between the laws regulating, in the Northern and Southern parts of Nigeria. These differences sprout from the existence of two different laws for the two meridian poles of northern and southern parts of Nigeria, as encapsulated in the two major Federal Acts on abortion in Nigeria; namely the Criminal Code Act and the Penal Code Act.

The Penal Code Act applies to abortion committed in the northern Nigeria, while the Criminal Code Act applies to abortion committed in the southern part of the country. This duality of laws on the same subject matter, in the same country, is one of those offshoots of concerted efforts by the northern region of Nigeria to create room and make way for their Islamic way of life. Therefore, while the Criminal Code Act essentially lifted an English law on the offences against persons, and translocated it on the people of southern Nigeria In 1916, the Penal Code Act was made with an eye on its adaptation to suit the peculiarities of the local northern Nigerian people's way of life. As we shall see later, this adaptation made the Penal Code Act far more reasonable than the Criminal Code Act on abortion.

It must be clarified that while Nigeria is still using these archaic transplanted laws on abortion, the countries whose abortion laws Nigeria transplanted in the name of Criminal Code or Penal Code, have for a long time, altered those laws of theirs in line with reason and modern situations of life of their people. In contrast however, most Nigerian courts still will apply these archaic laws on abortion as they may have been slightly modified by some Nigerian case laws.

The subject matter of this article is whether these two Acts as it concerns their provisions on abortion are legal, constitutional and valid provisions. The author of this article contends that those provisions on abortion in both the Criminal and Penal Code Acts conflict with the Constitution of the Federal Republic of Nigeria 1999 as amended, and thus are void to the extent of the inconsistencies, and need to be struck down by a court of competent jurisdiction, with a requisite follow up to the Supreme Court of Nigeria.

Section 228 of Criminal Code Act provides as follows:

Any person who, with intent to procure miscarriage of a woman whether she is or is not with child, unlawfully administers to her or causes her to take any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, is guilty of a felony, and is liable to imprisonment for fourteen years.

The far-reaching effects of this provision is that a literary construction of this section will reveal that even medical treatment of abortion by doctors to save the woman's life, and post abortion care for such women, are included here as a felony of abortion. Medically, miscarriages are classified into complete and incomplete miscarriages. Miscarriage medico-technically means abortion. When a woman has incomplete miscarriage and comes to the hospital, the  physician treats her by first converting the incomplete abortion to complete abortion. This he does whether or not the woman is with or without a child, in so far that there is Retained Products of Conception in situ. Also, because no law or exemption clause permits the physician to complete this process of miscarriage on this woman, the act of such physicians would therefore be literally unlawful, and against the provisions of the Criminal Code Act for doctors practicing in the South of Nigeria. This position has been modified by case law.

Section 232 of the Penal Code Act on the other hand provides:

Whoever voluntarily causes a woman with child to miscarry shall, if the miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.

This provision, does not only eliminate the part about the woman being with a child or not, but also provides a caveat that abortion can be performed for the purpose of saving the woman's life. This is a great departure from the provisions of the Criminal Code Act on abortion.

In 1938, in the case of  R. v. Edgal, Idike and Ojugwu ,(1938) W.A.C.A. 133, Nigeria has allowed therapeutic abortion. Therapeutic abortion is solely to save the mother’s life or health. This has provided for the people of southern Nigeria, that second limb of the exemption clause found in Penal Code Act.

Earlier in the same year, in a particular English case, R v Bourne, per Judge Macnaghten, it has been held that abortion is allowed in order to save a woman’s life or her physical and mental health. This foreign court decision is only persuasive in Nigeria, as R v Edgal does not consider mental health. Therefore, while R v Bourne gives English physicians and women the legal access to procurement of abortion where the physical or mental health of the mother is in danger,  the Nigerian case of R v Edgal only permits abortion on a woman to save her life. A rape victim who gets pregnant from the rape in Nigeria, and whose life is not at the moment in danger of extinction, may find it difficult to access abortion legally in Nigeria. Her position is totally different from that of her contemporary in the jurisdiction where R v Bourne is the operational law.

Subsequently, many jurisdictions other than Nigeria, have enacted newer abortion laws that permit legal abortion where the certified physicians consider the abortion procedure necessary to save the mental and physical health of the mother. Nigeria has vehemently continued to follow Criminal Code Act, Penal Code Act, and R v Edgal. It must be noted that R v Bourne is not a Nigerian case, and Nigerian courts are not bound to follow the ratio or the orbiter. If for anything, R v Bourne can only persuade the Nigerian court.

The major upheaval in the critical review of the unconstitutionality of the abortion laws has happened in the United States of America in 1973, in the case of Roe v Wade. Roe has alleged that she is unmarried and pregnant; that she wishes to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she is unable to get a "legal" abortion in Texas because her life does not appear to be threatened by the continuation of her pregnancy; and that she can not afford to travel to another jurisdiction in order to secure a legal abortion under safe conditions. She claims that the Texas statutes are unconstitutionally vague and that they abridge her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

United States Supreme Court, ROE v. WADE, (1973) No. 70-18, is argued on December 13, 1971, and decided on January 22, 1973. BLACKMUN, J., delivers the opinion of the Court.

The court does a comprehensive survey, in several aspects, including the history of abortion, for such insight as that history may afford them, and then examines the state purposes and interests behind the criminal abortion laws. The court discovers that the restrictive abortion laws are actually relatively new. Ancient religions have not barred abortion. Abortion laws are actually made to protect the mother's life and the father's right to his offspring, and not for the life of the unborn child. The American Supreme Court also observes as highlighted below:

The Physicians Oath is not uncontested even in Hippocrates' day; only the Pythagorean school of philosophers frowns upon the related act of suicide. Most Greek thinkers, on the other hand, commend abortion, at least prior to viability. For the Pythagoreans, however, it is a matter of dogma. For them the embryo is animate from the moment of conception, and abortion means destruction of a living being. The abortion clause of the Oath, therefore, "echoes Pythagorean doctrines," and Pythagorean Manifesto. The Physician Oath comes to be popular. The emerging teachings of Christianity are in agreement with the Pythagorean ethic. The Oath "became the nucleus of all medical ethics" and "was applauded as the embodiment of truth." Thus, suggests Dr. Edelstein, it is "a Pythagorean manifesto and not the expression of an absolute standard of medical conduct."

Three reasons have been advanced to explain historically the enactment of criminal abortion laws in the 19th century and to justify their continued existence. It has been argued occasionally that these laws are the product of a Victorian social concern to discourage illicit sexual conduct. A second reason is concerned with abortion as a medical procedure. When most criminal abortion laws are first enacted, the procedure has been a hazardous one for the woman. Abortion mortality has been very high. Even after 1900, and perhaps until as late as the development of antibiotics in the 1940's, standard modern techniques such as dilation and curettage are not nearly so safe as they are today. Thus, it has been argued that a State's real concern in enacting a criminal abortion law is to protect the pregnant woman, that is, to restrain her from submitting to a procedure that placed her life in serious jeopardy.

Modern medical techniques have altered this situation. Medical data indicate that abortion in early pregnancy, that is, prior to the end of the first trimester, although not without its risk, is now relatively safe. Mortality rates for women undergoing early abortions, where the procedure is legal, appear to be as low as or lower than the rates for normal childbirth.

The third reason is the State's interest - some phrase it in terms of duty - in protecting prenatal life. Some of the argument for this justification rests on the theory that a new human life is present from the moment of conception. The Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as the Supreme Court feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.

Court conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.

The fetus is contended to be a "person" within the language and meaning of the Fourteenth Amendment.The Constitution does not define "person" in so many words. Section 1 of the Fourteenth Amendment contains three references to "person." The first, in defining "citizens," speaks of "persons born or naturalized in the United States." But in nearly all these instances, the use of the word is such that it has application only postnatally. None indicates, with any assurance, that it has any possible pre-natal application. This means that prenatal lives are not expressly protected by the Constitution. Protection of prenatal life is thus essentially a state's moral obligation rather than constitutional duty, which must give way to the woman's constitutional rights.

Court observes that the pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus.Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. Court concede that they need not resolve the difficult question of when life begins. Court posit that when those that are trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at the point in the development of man's knowledge, is not in a position to speculate as to the answer.

Now,  the issue for determination is no longer about mental and physical health of the woman, but Roe's legal capacity and right to have abortion despite the fact that her mental and physical health are not in jeopardy. Roe alleges that she is unmarried and pregnant; that she wishes to terminate her pregnancy by an abortion "performed by a competent, licensed physician, under safe, clinical conditions"; that she is unable to get a "legal" abortion in Texas because her life does not appear to be threatened by the continuation of her pregnancy. She claims that the Texas statutes are unconstitutionally VAGUE and that they abridge her right of personal PRIVACY, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

A three-judge District Court, which consolidates the actions, hold that Roe and Hallford, and members of their classes, have standing to sue and have presented justiciable controversies. Ruling that declaratory, though not injunctive, relief is warranted, the court declares the abortion statutes void as VAGUE and overbroadly INFRINGING those plaintiffs' Ninth and Fourteenth Amendment rights.

Court goes on to also hold that contrary to appellee's contention, the natural termination of Roe's pregnancy does not moot her suit. Litigation involving pregnancy, which is "capable of repetition, yet evading review," is an exception to the usual federal rule that an actual controversy must exist at review stages and not simply when the action is initiated.

The United States Supreme Court goes further to hold that State criminal abortion laws, like those involved, that except from criminality only a life-saving procedure on the mother's behalf without regard to the stage of her pregnancy and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Though the State cannot override that right, it has legitimate interests in protecting both the pregnant woman's health and the potentiality of human life, each of which interests grows and reaches a "compelling" point at various stages of the woman's approach to term.

However, the State is said to have an important and legitimate interest in preserving and protecting the health of the pregnant woman, and it has still another important and legitimate interest, as well as moral obligation, I must quickly add, in protecting the potentiality of human life. These interests are separate and distinct. Each grows in substantiality as the woman approaches term and, at a point during pregnancy, each becomes "compelling."

Court observes that with respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, is at approximately the end of the first trimester. This is so because of the now-established medical fact, that until the end of the first trimester mortality in abortion may be less than mortality in normal childbirth.

It follows that, from and after this point, a State may regulate the abortion procedure to the extent that the regulation reasonably relates to the preservation and protection of maternal health. Examples of permissible state regulation in this area are requirements as to the qualifications of the person who is to perform the abortion; as to the licensure of that person; as to the facility in which the procedure is to be performed, that is, whether it must be a hospital or may be a clinic or some other place of less-than-hospital status; as to the licensing of the facility; and the like.

Court therefore concluded that this means, on the other hand, that, for the period of pregnancy prior to this "compelling" point, the attending physician, in consultation with his patient, is free to determine, without regulation by the State, that, in his medical judgment, the patient's pregnancy should be terminated, for whatever reasons not limited to saving the woman's life. If that decision is reached, the judgment may be effectuated by an abortion free of interference by the State.

With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications. If the State is interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother. This state interest is questionable as we see as it has been argued that fetal life is not protected by the Constitution.

The United States of America Supreme Court therefore drove down the nail on the coffin of the Penal Code on abortion by maintaining Article 1196 of the Texas Penal Code, in restricting legal abortions to those "procured or attempted by medical advice for the purpose of saving the life of the mother," sweeps too broadly. The statute makes no distinction between abortions performed early in pregnancy and those performed later, and it limits to a single reason, "saving" the mother's life, the legal justification for the procedure. The statute, therefore, cannot survive the constitutional attack made upon it here.

As a matter of clarification:

(a) For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman's attending physician.

(b) For the stage subsequent to approximately the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.

(c) For the stage subsequent to viability the State, in promoting its interest in the potentiality of human life, may, if it chooses, regulate, and even proscribe, abortion except where necessary, in appropriate medical judgment, for the preservation of the life or health of the mother. 

(d ) The State may define the term "physician" to mean only a physician currently licensed by the State, and may proscribe any abortion by a person who is not a physician as so defined. 

Bringing the argument back home to Nigerian Court and situation, it is the obvious considered view of the author of this article that no Nigerian court will hold otherwise.

The provisions in the Nigerian Constitution as to the FUNDAMENTAL RIGHTS of Nigerian people, and the relationship between the State and it's people is clear, even clearer and better defined than that of the relevant Amendments of the American Constitution. According to the learned Justices in Roe v Wade, 'where certain "fundamental rights" are involved, the Court has held that regulation limiting these rights may be justified only by a "compelling state interest"'. In Nigeria, the compelling state interests are adequately encapsulated in the provisions on the fundamental rights. No such compelling state interests are found in the Nigerian Constitution.

Some provisions on the fundamental rights in the Constitution of the Federal Republic of Nigeria 1999 as amended are hereby laid out.

Section 35 (1) of the Constitution states:

Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law

Section 36(12) of the Constitution states:

Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

Section 37 states in part:

The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.

Section 38 (1) states:

Every person shall be entitled to freedom of thought, conscience and religion, including freedom to change his religion or belief, and freedom (either alone or in community with others, and in public or in private) to manifest and propagate his religion or belief in worship, teaching, PRACTICE and observance.

Section 45(1), while sparing derogation of Liberty and Thought, states:

Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society
(a) in the interest of defence, public safety, public order, public morality or public health; or
(b) for the purpose of protecting the rights and freedom of other persons.

The derogation of Privacy is purely for defence, public safety, public order, public morality, public and public health. There is no mention of private morality or private health. This simply means that the Constitution of the Federal Republic of Nigeria, protects private health and private morality from state interests and interferences. The State is barred from interfering with the private health and morality of its competent persons.

The combined effects of the above provisions in the Nigerian Constitution is that the ratio behind the remarkable decision of the Supreme Court of the United States of America in Roe v Wade is even more persuasive and more applicable in Nigerian situation than in the United States legal framework. While the Justices in the Roe v Wade were scratching for constitutional basis of Liberty as a fulcrum for hanging their decision, the issue of Personal Liberty and Privacy are clearly provided for in our own Constitution.

Nigerian courts are not bound by United States Courts decisions on the legality of abortions or otherwise, neither are Nigerian Courts bound to follow the ratio in the decisions of the American courts in reaching judicial conclusions in Nigeria. However, Nigerian courts are not averse to justice, justifications and reason, neither are they without scruple and wisdom. The wisdom in Roe v Wade is unparalleled. It only requires that a proper plaintiff is presented in the Nigerian court to permanently resolve this crucial and protracted statutory and constitutional anathema.

The provisions on abortion in both Criminal Code Act and Penal Code Act are not only oppressive and restrictive on the patient and her physician, they, as have been clearly and convincingly canvassed, violate the constitutional rights of Dignity, Privacy, Liberty and Life of the woman. The constitutional derogation of these rights is not found in the field of a woman's sexual orientations or fertility control. The caveat on saving of the woman's LIFE or HEALTH, as an exception to the criminality of abortion, is so VAGUE. A vague abortion law violates the Constitutional rights of the woman, as well as the legal requirements for a mandatory definition of offences in the provisions of statutes or subsidiary legislations, for such provisions to have valid prosecutorial legal effects, as enunciated in section 36(12) of the Nigerian Constitution. This is because the life or health in question is not unambiguous enough as to include or exclude the woman's social, mental, economic, physical or religious life or health. This ambiguity and vagueness in the definition of the offence of abortion in both Code Acts, leaves the woman and her attending physician in a state of debilitating bewilderment as to how to enjoy their enshrined constitutional rights on crime definition in statutes, and their fundamental rights of thought, conscience, religion, liberty, life and privacy.

We do not need the National Assembly to make for us another abortion laws that preserve the woman's constitutional rights of privacy and liberty. No. All we need is for Nigerian Supreme Court, in an orchestrated suit in a legally allowed procedural crescendo, to make a judicial statement, rendering the two archaic abortion Acts void, to the extent of their inconsistencies with the Constitution of the Federal Republic of Nigeria 1999 as amended. The Supreme Court can also preserve the State functions of regulating abortion practices in the second and third trimesters as posited in Roe v Wade. This is the right way to go.

©Awkadigwe Fredrick Ikenna (MBBS, LLB, MWACOG, DSC) 
08039555380
Email: awkadigweikenna@yahoo.com


This article can be read and shared purely for enlightenment and education of the people of Nigeria. The reader can also freely comment and argue with the thoughts of this author.


© Copyright 2017 Ikenna Fredrick Awkadigwe. All rights reserved. No part of this publication is permitted to be used in any way, copied, photocopied printed, reproduced, transferred, adapted, argued in any fora, used in Court or recreated in any form or resemblance whatsoever, without the written approval and license of the author, Ikenna Fredrick Awkadigwe.