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You may not refuse a blood transfusion if you are a Nigerian child: A comment on Esanubor v Faweya

Enyinna Nwauche

Director, Centre for African Legal Studies; Associate Professor of Law, Rivers State University of Science and Technology, Rivers State, Nigeria

SUMMARY

This comment examines a decision of the Nigerian Court of Appeal that a Nigerian child is not entitled to refuse a blood transfusion. The comment notes that the decision was handed down at a time when the Child Rights Law was in operation and that, had this legislation been taken into consideration, the best interests of the child would have led to a more nuanced interpretation and guidance on conditions under which a Nigerian child, in furtherance of the right to freedom of religion, may refuse a blood transfusion.

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* LLB, LLM (Obafemi Awolowo), BL (Nigerian Law School); esnwauche@afrilegalstudies.com
1 [2009] All FWLR (Pt 478) 380 (CA).
2 The case began in 1997 at the chief magistrate's court, Lagos. The application for an order of certioriari was made to the Lagos State High Court and judgment was delivered on 30 May 2001. An appeal was filed at the Nigerian Court of Appeal in 2003 and the judgment of the Court of Appeal was handed down in 2008. This judgment is subject to appeal to the Nigerian Supreme Court.
3 See sec 33(1) of the Constitution of the Federal Republic of Nigeria 1999: 'Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.'
4 See sec 38 of the Nigerian Constitution 1999: '(1) 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. (2) No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction ceremony or observance relates to a religion other than his own, or religion not approved by his parent or guardian. (3) No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any place of education maintained wholly by that community or denomination. (4) Nothing in this section shall entitle any person to form, take part in the activity or be a member of a secret society.'
5 Esanubor case (n 1 above) 397.
6 (2001) 7 NWLR (Pt. 711) 206.
7 Okonkwo case (n 6 above) 245.
8 Nigeria ratified this Convention in 1991.
9 Nigeria ratified this Convention in 2000.
10 In 2003 the Child Rights Act was promulgated into law by the National Assembly of Nigeria. However, since 'children' is under the Residual Legislative List of the Constitution of the Federal Republic of Nigeria, 1999, and therefore within the competence of state governments, it became necessary that state Houses of Assembly pass similar legislation. Accordingly, many state Houses of Assembly have passed a Child Rights Law which is identical to the Child Rights Act. In the 1999 Nigerian Constitution, the distribution of legislative powers between the federal state and local governments is found in the Exclusive List (first part Second Schedule) and the Concurrent List (second part Second Schedule). According to constitutional theory, all matters that are neither in the Exclusive or Conclusive List, nor reserved for Local Governments (Fourth Schedule) are reserved for the states.
11 The Child Rights Act has been promulgated into a Child Rights Law in at least 16 of the 36 states of Nigeria: Abia, Anambra, Akwa Ibom, Bayelsa, Ebonyi, Ekiti, Imo, Jigawa, Kwara, Lagos, Nassarawa, Ogun, Ondo, Plateau, Rivers and Taraba States.
12 'No person attending any place of education shall be required to receive religious instruction or to take part in or attend any religious ceremony or observance if such instruction, ceremony or observance relates to a religion other than his own, or a religion not approved by his parent or guardian.'
13 (1985) HCNLR 666.
14 See eg sec 18 of the Infants Law of Bayelsa State 2006, Cap A13 Laws of Bayelsa State, 2006.
15 Art 9(2) of the Convention.
16 The Okonkwo case (n 6 above) dealt with the professional negligence of a medical doctor who had respected the wishes of a Jehovah's Witness to refuse a blood transfusion and who had died thereafter. The Nigerian Supreme Court held in this case that the medical doctor was not guilty of professional misconduct because in respecting the wishes of the patient, the doctor was acting in furtherance of patients' rights to freedom of religion and privacy guaranteed by the 1979 Constitution of the Federal Republic of Nigeria.
17 It is worth noting that family courts at the High and Magistrate's Court levels, as required by the Child Rights Law, have not been so established. See, eg, sec 149 of the Child Rights Act, which requires the establishment of a family court to hear and determine matters relating to children. It seems to follow that such a court will strive to uphold the provisions of the Child Rights Law.
18 EN Uzodike 'Implications and limits of parental rights in Nigeria' (1990) 2 African Journal of International and Comparative Law 282 297.