By Oringo Bamidele Gabriel
In Nigeria, the attitude of the society towards persons with unsound mind is appalling and inhumane. Here, the rate of discrimination, stigmatisation and prejudice towards persons with unsound mind is on an overwhelming rise. These mentally ill persons are mostly kept in unclean environments, chained without food, sexually molested, inadequate personal hygiene and they are given other diverse forms of maltreatment. In order to curb such inhumane treatment, the various Nigerian laws on mental illness needs to be enforced. Quite unfortunately, there is more or less no legislation regulating and/or protecting persons with an unsound mind. The Mental Health Bill 2013 which is to provide protection to mentally deficient persons is yet to be pass by the National Assembly. On the other hand, other laws which we inherited from our colonial masters, like the Lunacy Act 1916 as amended by the Lunacy Act 1959 is archaic and was not included in the Laws of the Federation of Nigeria 2004.
Thus, this article discusses the legal implications of being mentally ill in Nigeria and the various rights accrued to persons with unsound mind both locally and internationally.
THE LEGAL IMPLICATIONS OF BEING MENTALLY ILL IN NIGERIA.
Within the Nigerian jurisdiction there exist certain legal implications of being mentally ill. These legal implications shall be discussed below.
Denial of Contractual Capacity: Mentally ill persons are generally presumed unable to make a valid contract because agreements that the law will recognize and give its binding effect to require free and full consent and meeting of the conscious minds to bind the parties. Consequently, a person known to be suffering from a mental illness cannot normally make a valid contract unless it is certified that his/her mind was clear, composed and understanding at the time of making the contract. Although this principle of contract was designed in part largely to protect the mentally ill from contractual exploitation, it is often used to their detriment by those seeking to avoid legal obligations and liabilities arising from contract with mentally ill persons. In addition, the principle denies such persons of ability to freely enter into contractual agreements even when apparently able and competent to do so. This deprives the mentally ill of the liberty to manage their affairs, estate and property as they choose. It equally allow others acting on their behalf to exploit them and choose options that may not necessarily be in the best interest of the affected persons or indeed that they are known to vehemently oppose. This is damaging to a person’s sense of worth, dignity and self determination foisting on them a condition of complete helplessness and frustration which may aggravate their condition[i].
Political Disqualification and Incapacity: The Constitution is replete with provisions disqualifying certain persons from occupying some political offices in Nigeria or removal of such individuals from office on account of their being adjudged to be a lunatic or of unsound mind or otherwise declared unable to perform the functions of their offices. It is unarguable that the best brains in the country should be called upon to rule and implement laws and policies for the good governance of the country. Any person who therefore shows signs of incapacity, incompetence or unfitness to optimally occupy or perform the functions of the relevant offices especially on the ground of ill-health, physical, mental or psychosocial should properly be excused[ii].
Defence To Criminal Liability: Under criminal law, insanity serves as a defence to criminal liability. The defence of insanity is provided for in section 28 of the criminal code and section 51 of the penal code. Section 28 provides; a person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to understand what he is doing, or of capacity to control his actions, or of capacity to know that he ought not to do the act or make the omission. In Ejinima v State[iii], the court held that: it is now trite law that the defence of insanity can only avail the accused if he can show that he was insane at the time he committed the act. An erudite scholar, CHRIS WIGWE in his book “Introduction To Criminal Law In Nigeria” stated that a successful plea of insanity shall confine the person in a mental health facility, an asylum, prison or other suitable place of safe custody at the discretion of the Governor.
THE RIGHTS OF PERSONS WITH UNSOUND MIND
Given that there is no legislation specifically enacted for persons with unsound mind, we shall rely on the Constitution and other international laws and practice.
Locally, the Nigerian constitution provides in Section 35(1)(e) that the personal liberty of persons with unsound mind can be deprived for the purpose of their care or treatment or the protection of the community[iv]. In reality, there is non-compliance to the wordings of the provision, persons that are mentally ill are deprived of their personal liberty against the provisions of the Constitution. They are sometimes chained, caged or imprisoned in a room without ventilation. Their experiences go from the sad to the utterly despicable. Similarly, Section 34 of the 1999 Constitution of the Federal Republic of Nigeria, elaborated on the human dignity of every citizen of Nigeria. This section is also applicable to mentally ill persons. Contrary to the foregoing provisions, the mentally ill persons are subject to harsh conditions, abusive treatments and are most times used as a means of generating income; method that are against their human dignity are deployed. In the same vein, section 42(2) strengthens the right of the mentally ill person, the section provides against subjecting the mentally ill person to discrimination. Hence, no citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth[v].
Internationally, the united nations convention on the rights of persons with disabilities and optional protocol, provides; the protection of living conditions of persons with disabilities in every country particularly developing countries. The convention stipulates that persons with disabilities, shall be treated with respect and further acknowledging their mental integrity. Their dignity as humans shall be upheld at every material time. The convention also states that: no one shall be subjected without his or her free consent to medical or scientific experimentation
The United Nations Universal Declaration of Human Rights 1948 in it’s preamble recognizes the inherent dignity and the equal and inalienable rights of all members of the human family as the foundation of freedom, justice and peace in the world. Article 1 provides that ‘All human beings are born free and equal in dignity’. Other Articles provides for the right to be free from discrimination, right to life, liberty, freedom from slavery, freedom from torture, cruel, inhuman or degrading treatment. In addition, at the International level we have “Principles for the protection of persons with mental illness and the improvement of mental health care”, which was adopted by the General Assembly resolution in 1991. It is an agreed but non-legally-binding basic standards that mental health systems should meet and rights that people diagnosed with mental disorder should have. Notably, there are 25 principles and it should be read in the context of the United Nations Convention on the Rights of Persons with Disabilities. Some of these principles shall be reproduced hereunder.
Fundamental Freedoms and Basic Rights
1) All persons have the right to the best available mental health care, which shall be part of the health and social care system.
2) All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person.
3) All persons with a mental illness, or who are being treated as such persons, have the right to protection from economic, sexual and other forms of exploitation, physical or other abuse and degrading treatment.
4) There shall be no discrimination on the grounds of mental illness. “Discrimination” means any distinction, exclusion or preference that has the effect of nullifying or impairing equal enjoyment of rights. Special measures solely to protect the rights, or secure the advancement, of persons with mental illness shall not be deemed to be discriminatory. Discrimination does not include any distinction, exclusion or preference undertaken in accordance with the provisions of these Principles and necessary to protect the human rights of a person with a mental illness or of other individuals[vi].
Protection of Minors: Special care should be given within the purposes of these Principles and within the context of domestic laws relating to the protection of minors to protect the rights of minors, including, if necessary, the appointment of a personal representative other than a family member.
No person shall be compelled to undergo medical examination with a view to determining whether or not he or she has a mental illness except in accordance with a procedure authorized by the domestic law within that jurisdiction.
Standards of Care
1) Every patient shall have the right to receive such health and social care as is appropriate to his or her health needs, and is entitled to care and treatment in accordance with the same standards as other ill persons. 2) Every patient shall be protected from harm, including unjustified medication, abuse by other patients, staff or others or other acts causing mental distress or physical discomfort.
Conclusively, all humans are born free and have equal dignity. Paradoxically, the Nigerian society have made life unbearable for persons with mental illness. These persons are subject to all forms of maltreatment with more or less no legislationn to protect them. However, in this article we were able to discuss the right of persons with unsound mind. We relied on the constitution of the federal republic of Nigeria 1999 as amended and other international laws convention,and treaties. It is further suggested that the legislature should swiftly pass the Mental Health Bill and other Bill relating to mental health. Although, the Principles for the protection of persons with mental illness and the improvement of mental health care are non-legally binding however, various health care system in country should inculcate the principles in the execution of their duties.
Bamidele is a Law Student of the University of Calabar and can be reached via; +234 7064509087; Facebook – Statutory flavour
[i] Abdulwasiu Ojo Akorede Yusuff, THE RIGHTS OF THE MENTAL ILL AND THE NIGERIAN SOCIETY: ENHANCING DIGNITY IN MENTAL HEALTH THROUGH LEGISLATION: Journal of Law, Policy and Globalization, Vol.52, 2016
[iii] (1991) 6 NWLR (Pt. 200) at 645
[iv] Section 35(1)(e) of the Nigerian Constitution 1999 as amended
[v] section 42(2) of the Nigerian Constitution 1999 as amended
[vi] Principles for the protection of persons with mental illness and the improvement of mental health care 1991