In Nigeria, there are multiple sources of law, which include statutory law, customary law and Islamic law.
Judicial decisions (that is, decisions of courts) also play a significant role as they elaborate the meaning, content and applicability of statutory, customary and Islamic laws. As a result, there are multiple sources of law on abortion.
These are statutory law, received English law, customary law and Islamic law. At the top of all the law sources, however, is the Constitution of the Federal Republic of Nigeria (1999).
The Constitution is superior to all laws and any law that is inconsistent with the constitution is void.
The criminal law, which is statutory law, is the dominant source of law on abortion in Nigeria. The reason for this is that the Constitution prohibits unwritten crimes and until recently, customary and Islamic laws of crime were unwritten. Since 1999, Islamic criminal law has been codified as statutory law in most of the northern states.
A. Statutory Provisions
The major statutes relating to abortion in Nigeria are the Criminal Codes of the Southern states of the country and the Penal Codes of the northern states. However, with the codification of Sharia criminal law in many of the northern states, the Penal Codes are no longer the only criminal statutes applicable and even in states where the Penal Code is the main criminal legislation; it has been amended to reflect Sharia-based values and standards.
The relevant provisions of the Criminal Code are Sections 228, 229, 230 and 297.
Section 228 provides that:
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 seven years.
Section 229 provides that:
Any woman who, with intent to procure her own miscarriage, 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 seven years.
Section 230 provides that:
Any person who unlawfully supplies to or procures for any person anything whatever, knowing that it is intended to be unlawfully used to procure the miscarriage of a woman, whether she is or is not with child, is guilty of a felony, and is liable to imprisonment for three years.
Section 297 of the Criminal Code provides that
A person is not criminally responsible for performing in good faith and with reasonable care and skill a surgical operation upon any person for his benefit, or upon an unborn child for the preservation of the mother’s life, if the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.
The Penal Code provisions are substantially the same as those in the Criminal Code.
Section 232 of the Penal Code provides that:
Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment for fourteen years.
Explanation: A woman who causes herself to miscarry is within the meaning of this section.
Section 233 of the Penal Code provides that:
Any person who, with intent to cause the miscarriage of a woman, regardless of whether she is pregnant or not, does any act that causes her death is liable to imprisonment for 14 years.
- The law as found in the Criminal and Penal Codes follows the English Offenses against the Persons Act of 1861.
- Sections 297 of the Criminal Code and 232 of the Penal Code clearly permit therapeutic abortion for the preservation of the life of the mother.
- The word “unlawfully” used to qualify “administers” in sections 228 and 229: and “supplies” or “procures” in section 230 of the Criminal Code suggests that there can be lawful administering, supplying or procuring which will not amount to criminal abortion.
- The scope of these sections was clarified in the case of R v. Bourne (1938) which decided the relevant sections of the English Offences against the Persons Act of 1861. In R v Bourne, Dr. Bourne induced an abortion of the pregnancy of a young girl of 14 who had been raped. Dr. Bourne was acquitted of the offence of criminal abortion under the 1861 Act on grounds that the continuation of the pregnancy would have resulted in the girl becoming a “mental wreck”.
- According to the court, the word “unlawfully” used in the 1861 Act implied that abortions, in the law’s contemplation could be lawful or unlawful and it is not unlawful when performed with the intention of preserving a woman’s life or health. Therefore, abortion to preserve either or both the mental and physical health of a woman is not criminal abortion under the criminal code.
- The decision in R v. Bourne means that under the 1861 English law, abortion is not unlawful where there is need to safeguard the Woman’s health whether physically or mentally. Since Nigerian statutory provisions are restatements of the 1861. the decision in R v. Bourne is relevant and its liberal effect is also relevant to the law on abortion in Nigeria. The decision in Bourne was reaffirmed in R v. Edgal, a decision of the West African Court of Appeal (WACA). The WACA is placed at par with the Court Appeal decisions in Nigeria and so its decisions constitute binding judicial precedent.
- The Bourne case which provides the only known judicial precedent in interpreting the meaning of the word “unlawfully” for the purposes of sections 228-230 of the Criminal Code clearly expands considerations that may be duly taken into account beyond what people ordinarily think. In practical terms, this means that contrary to popular belief, abortion is not as restricted under Nigerian law. Service providers may validly consider the mental health indication or even non-life threatening physical health indication.
- Where the abortion procedure entails a surgical procedure, the law requires that a high standard of care is maintained in dealing with patients. Section 297 of the Criminal Code allows surgical interference with pregnancy where undertaken for therapeutic reasons that is, in good faith to preserve or save the mother’s life as prescribed by the Penal Code or for the preservation of the mother’s life as prescribed by the Criminal Code.
- Where surgical abortion is legal because it is carried out to save the life of the mother, the existing legal provisions can only be interpreted to give protection to any person who purporting to hold requisite medical qualifications. “What is the standard of reasonable care and skill?” This is the standard care and skills that is acceptable within the different categories of health care providers.
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The phrase ‘any person” used in section 297 recognizes that there are other health care service providers apart from medical doctors and it seems that all that the law requires of them is that they demonstrate reasonable care and skill, at a standard reasonable to service providers in the same group. However, given the high rate of maternal mortality and morbidity in Nigeria, which is not unconnected to the widespread use of traditional doctors and birth attendants, the lack of specificity of the law as it is, is condemnable. This provision means that the law fails to protect women from unsafe abortion in the hands of unqualified persons.
• The criminal and penal codes are based on a law, which was passed almost 150 years ago and is no longer responsive to the magnitude of unsafe abortion and its consequences.
• Erroneous but widespread belief persists about the scope of lawful abortion.
• There is an urgent need for abortion law reform to be undertaken through both the legislature and judiciary.
• There is an urgent need for the de-briefing the public and all social actors of the notion that all abortions are illegal under the existing law and educating them as to the scope of the law in affording access to lawful abortion.