The Position Of The Law Regarding Abortion In Nigeria

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By Timothy Olamide

Abortion under the Nigerian law is illegal and only permitted under one circumstance

Both the Penal Code and the Criminal Code criminalise Abortion in Nigeria.

Sections 228, 229 & 230 of the Criminal Code, which applies in the Southern Part of Nigeria criminalize  Abortion.

Sections 232 & 233 of the Penal Code, which applies in the Northern part of Nigeria equally criminalize Abortion.

Section 297 of the Criminal Code provides for exception under which abortion permitted.

For clarity purposes, the above provisions of the law are reproduce verbatim bellow:



Thus sections 228 & 229 of the Criminal Code provide:  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.

Any woman who, with intent to procure her own miscarriage, whether she is or is not with child, unlawfully administers to herself any poison or other noxious thing, or uses any force of any kind, or uses any other means whatever, or permits any such thing or means to be administered or used to her, is guilty of a felony, and is liable to imprisonment for seven years.

Section 228 provides situation where a   person procures with intention ( mensrea) unlawfully administers to procure miscarry a woman while section 229 provides for situation where the woman with intention unlawfully procures her own miscarriage.

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Also the punishment in terms of jail terms is different. Section 228 provides for 14 years imprisonment while section 229 provides for 7 years in jail.

Section 228 provides for  situation where a   person procures with intention ( mensrea) unlawfully administers to procure miscarry a woman while section 229 provides for situation where the woman with intention unlawfully procures her own miscarriage.

Also the punishment in terms of jail terms is different. Section 228 provides for 14 years imprisonment while section 229 provides for 7 years in jail.

However, for  a defendant ( an accused) to be successfully charged for the offence of an Abortion, the Prosecution must prove the two elements of the offence which are the mensrea and the Actus reus which are the intention to unlawfully procure the miscarriage and the actual carrying out of the miscarriage.

CIRCUMSTANCES UNDER WHICH ABORTION IS NOT ILLEGAL UNDER CRIMINAL CODE

Section 297 provides for exception under which abortion is permitted.It provides thus: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 performance of the operation is reasonable, having regard to the patient’s state at the time and to all the circumstances of the case.

The above simply means the only circumstance under which abortion is not unlawful is when it performed to save the life of the woman.

The Penal Code in Sections 232& 233 provides thus: whoever voluntarily causes a woman with a 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 the imprisonment with 14 years.

Whoever with intent to cause miscarriage of a woman whether with child or not, does any act which causes the death of the woman shall be punished with imprisonment for fourteen years.

The above provisions of the Penal Code on Abortion can be swiftly concluded is not different from the provisions of Criminal Code but only the wordings.

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Conclusion.

Abortion in Nigeria is an offence under the Nigerian Laws save the only circumstance permitted by the laws . Research shows that in 1989, the Nigerian Society for Gynecologist and Obstetrics  sponsored a Termination Of Pregnancy Bill in the House of the Representative of the National House of Assembly. However,  the Bill did not see light of the day and   whether abortion should be legalised in Nigeria is not within the purview of this write up.

Timothy Olamide writes from Faculty of Law, Ahmadu Bello University Zaria, Kaduna State and can be reached via olaniyitimothyolamide@gmail.com

Reference.

Pregnancy Termination and The Law in Nigeria by Isabella Okagbue available at jstor.org

 

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