The National Assembly Lacks The Legislative Competence To Decriminalize Attempted Suicide In Nigeria

By Mbang Confidence, Esq

INTRODUCTION

The Nigerian Criminal Code is the substantive legislation on criminal matters. It is the apex codified law in Nigeria for criminal investigation, trial and punishment of criminals. It is derived from the Nigeria Criminal Code Act 1916, Nigeria Penal Code Act 1960 and other criminal laws enacted from time to time. The latest consolidated version of the code is contained in Nigerian Criminal Code, 1990, which is now contained in the Laws of the Federation, 2004.

Recently, the House of Representatives moved to amend section 327 of the Criminal Code Act. The amendment seeks to decriminalize attempted suicide. The bill, sponsored by Hon. Francis Waive, member representing Ughelli North/South/Udu federal constituency, was passed for second reading after the debate on the general principles of the bill.

This vista, albeit brief, seeks to interrogate the jurisprudence behind the amendment, and ponder on the legislative competence of the House of Representatives to amend the Code. The article provokes the following poser; Is it not ultra vires the National Assembly? Is the Code no more a State law? Is it applicable in the FCT? No. Only the Penal Code is applicable vide Section 13 of the Laws of FCT. Then, why legislate on same?.

It is accordingly submitted that in respect of the punishment for attempted suicide, there is a jurisprudential shift, and the issue should rather be treated as a psychosocial challenge and not a crime. It is further submitted that the National Assembly lacks the legislative competence to amend any section of the Criminal Code Act, 2004.

THE LAW ON ATTEMPTED SUICIDE IN NIGERIA

By virtue of section 326 of the Criminal Code Act, “Any person who attempts to kill himself is guilty of a misdemeanor and is liable to imprisonment for one year.” In the same spirit, section 231 of the Penal Code states that: “Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with imprisonment for a term which may extend to one year or with fine or with both”.

Although case laws seem to be limited, but the law is the law, and it is well established. The jurisprudence behind this position may be that the term of imprisonment would serve as a deterrent to would be offenders to abstain from attempting suicide.

Consequently, while punishment for attempting suicide is plausible, the line of thoughts over the years have been to decriminalize the crime, majorly due to the fact that same have neither discouraged the victims from attempting it nor stopped the  eventual commission of the act.

According to a World Health Organization (WHO) report, Nigeria lost over 17,000 lives to suicide in 2016 — the highest in Africa at the time. In Nigeria, the age-standardized suicide rate was 6.9 per 100,000 population in 2019, across both sexes, however, male suicide rates were higher at 10.1 per 100,000 population. Meanwhile, Lesotho has the highest suicide rate in Africa at 87.5 per 100,000 population in 2019. The index keeps rising, who knows how the percentage might be between 2024 to 2027.

Therefore, for purposes of understanding, we shall attempt a discussion and submit on the amendment bill and it’s jurisprudential shift, while navigating the debate for/against decriminalization in a blow.

THE AMENDMENT BILL AND JURISPRUDENTIAL SHIFT: NAVIGATING THE DEBATE FOR/AGAINST DECRIMINALIZATION OF ATTEMPTED SUICIDE

Reports from the Cable.ng on the 15th of February, 2022, revealed that Hon. Francis Waive, sponsored the bill to amend the section in 2022. The amendment bill now provides compulsory counseling and community service for victims of attempted suicide instead of the one year prison term prescribed by the Principal Act.

According to the lawmaker, “it seems a monstrous procedure to inflict further suffering on even a single individual who already found life so unbearable, his chances of unhappiness so slender, that he is willing to face pain and death in order to cease living”.

The bill amends the section thus, “Any person who attempts to kill himself is guilty of a misdemeanor and is liable to compulsory counseling and community service for a period not less than six months,” This is because, there seem to be a jurisprudential shift in the rationale for punishment of victims/offenders of attempted suicide. This shift is majorly driven by Psychiatrists. The position is that attempted suicide a mentally/disorder issue that need not be punished by imprisonment, but rather non custodial punishments and sanctions where necessary.

Recently, punching.com reported that the Association of Psychiatrists in Nigeria  raised the alarm over the effects of criminalization of suicide attempts  as a way  of  solving the challenges. It said criminalization of suicide attempts has worsened the problem rather than solved it. A Non Governmental Organization (NGO) also reported that attempted suicide is rampant amongst young adults, averagely aged 30 ,while  the youngest victim was12 years old and the oldest, 71.

It is believed that attempted suicide should be treated as a psychosocial challenge and not a crime. The proponents for decriminalization of attempted suicide believe that it is natural and common sense that the victim/offender would try to succeed the suicide due to the knowledge that failure is a criminal offence. While the proponents against decriminalization holds firm view that decriminalization may lead to rise in attempted suicide cases, and the fact that it is religiously abhorred worldwide.

In the light of the above, one may wish to ask the proponents against decriminalization that; since the law punishes the victim/offender who for many reasons decided to end life, what happens to the person who succeeded in taking his life?. Where is the law?. It is RIP.

At this juncture, it is expedient to examine the legislative competence of the National Assembly to entertain bills pertaining to criminal laws.

THE LEGISLATIVE COMPETENCE OF THE NATIONAL ASSEMBLY OVER ATTEMPTED SUICIDE

Nigeria operates a federal system of government where all tiers have limitations on their legislative competence. Section 4(2) (3)(4) of the 1999 Constitution of the Federal Republic of Nigeria as amended, provides that the National Assembly has the competence to legislate over matters in the exclusive legislative list set out in part 1 of the second schedule to the constitution. It also has the competence over items in the concurrent legislative list together with the State Houses of Assembly as set out in part 2 of the second schedule of the constitution. Any other matter falls under the residual list.

In TOGUN v OPUTA (No.2) (2001) 16 NWLR Pt. 740 Page 597 at 644 the Court of Appeal held that: “Nigeria is a Federal Republic with a Constitution, in which the legislative powers of the National Assembly and State Houses of Assembly are clearly defined. We have the Exclusive and the Concurrent Lists, in which the National Assembly could legislate. This leaves the State Houses of Assembly to legislate exclusively on residual matters not included in either the Exclusive or Concurrent Lists”. See with approval the case of Yenge v. AG Federation (2023) LPELR (61122) (CA); DOHERTY v BALEWA (1961) 2 NSCC Page 248 at 252. 

Strictly speaking, criminal law does not fall under the exclusive nor concurrent list, it is a residual matter for the states. Therefore, it is save to submit that the National Assembly lacks the legislative competence to legislate on criminal matters.

It has been contended that the Criminal Code Act is a federal enactment which can be amended by the National Assembly, but that would have been the case were the Code is an existing law by virtue of Section 315 of the Constitution within the legislative competence of the National Assembly. However, it is not. It was made when Nigeria was a colony and has only been codified and adapted in the laws of the federation. Under the present Constitution, the National Assembly does not have the authority to enact a general criminal law applicable across the country; it can only do so to the extent to which it is empowered under the Constitution (such as the ICPC, EFCC and NAPTIP Acts). Please see the decision of the Supreme Court in BODE GEORGE v FRN (2014) All FWLR Pt. 718 Page 879, where it was held that the National Assembly is incompetent to enact a general criminal law applicable across Nigeria. For instance, in NNAH v. STATE (2019) LPELR-47207(CA), kidnapping is a matter within the competence of a House of Assembly and same having been legislated upon by the Akwa Ibom State House of Assembly.

Therefore, where an enactment is made without the requisite legislative competence, it becomes a nullify. In AG LAGOS STATE v. DOSUNMU (1989) LPELR-3154(SC), Per ANDREWS ATUTU OBASEKI, JSC: “When an enactment is alleged to be illegal, unconstitutional, null and void, it means “that the authority or person who made the enactment had not the competence or legal capacity or constitutional legislative power to make the enactment.”

In the light of the above, it is submitted that the House of Representatives lacks the legislative competency with regards to criminal matters.

RECOMMENDATIONS

Considering the debate for and against decriminalization of attempted suicide, it is accordingly recommended that the decriminalization of attempted suicide is plausible, as same is in tandem with global reasoning. It is our position that the weight of persuasion lies in favour of the proponents for decriminalization of attempted suicide, but any foreseeable negative impact of such amendment should be managed with caution.

The Mental Health Act 2021 signed into law by former President Muhammadu Buhari in 2023, seeks to enhance and protect the lives of people suffering from mental illnesses by increasing access to mental health care. However, the act does not adequately outline preventive strategies for suicide in Nigeria. The Government needs to develop a strategy that sets out the national ambitions for suicide prevention and the collective steps to take to achieve them.

The federal government must ensure that provisions for non custodial sentences such as community services are readily available in order not to render the aims and objectives of the bill in futility during implementation stage. The Nigerian Correctional Centres are already congested, therefore this amendment (but not by the National Assembly) would complement the efforts of the federal government decongestion project. This exercise should be achieved in line with laid down rules and procedures, especially when same is constitutionally guarded.

CONCLUSION

According to the United for Global Mental Health, suicide remains a criminal offence in at least 20 countries around the world, with some laws dating back up to 160 years ago. In the United Kingdom, the Suicide Act 1961, decriminalized the act of suicide in England and Wales so that those who survived a suicide attempt would no longer be prosecuted. This is also the position in the United States of America, attempted suicide is no more a criminal offence.

In fact, at the World Health Assembly in 2019 all health ministers agreed that decriminalizing suicide was an effective way to reduce deaths by suicide when they approved the World Health Organization (WHO) Mental Health Action Plan for 2021-2030. Therefore, Nigeria is in order by attempting to decriminalize attempted suicide, but it is not within the legislative competence of the National Assembly.