JOSHUA NWACHUKWU contends that the protected termination of being pregnant legislation raises constitutional questions
On the 24 of September 2026, the Ogun State House of Assembly handed the Ogun State Safe Termination of Pregnancy Bill, 2026 and forwarded it to the Governor for assent.
A vital take a look at Part III of the Bill, notably Section 9 of the Law, makes one conclude that the legislation merely seeks to legalise abortion in Ogun State.
Section 9 establishes a number of grounds upon which abortion might be sought, relying on the stage of gestation and the circumstances of the being pregnant.
In abstract, the Law supplies as follows: First, inside the first 12 weeks of gestation, a lady could get hold of an abortion after counselling, with out want to ascertain any particular medical or different justification.
Second, between 12 and 24 weeks of gestation, abortion could also be gotten the place the being pregnant poses a danger to the lady’s bodily or psychological well being, the place there’s a danger of foetal abnormality, and, inside 18 weeks from conception, if the being pregnant is because of rape, incest or different legal sexual offences.
Third, past these durations and at any stage of gestation, the Law permits abortion together with the place the being pregnant endangers the lady’s life, the place the foetus has a situation incompatible with life, or the place the being pregnant poses important psychological well being danger or poses a danger of mother-to-child transmission of any life-threatening situation.
Taken collectively, these provisions create a framework beneath which abortion could also be permitted for a broad vary of causes, past saving a lady’s life.
At this level, you will need to be aware that the legislation permits girls from age 10 to have an abortion. Although women beneath 18 are required, beneath part 12(2) to have parental, guardian or in loco parentis consent, whereas adults clearly can consent for themselves.
With regard to married adults, one is pressured to query, what’s the curiosity, proper or obligation of a husband if the spouse desires to abort a baby and he doesn’t consent, or he desires an abortion and she or he refuses?
These questions are vital, however the extra basic constitutional issue lies elsewhere: the battle between this and the prevailing legal legislation governing abortion in Southern Nigeria.
Ogun State is in Southern Nigeria, the place the Criminal Code framework applies. The related provisions of the Criminal Code, notably Sections 228–230, criminalise numerous acts related to procuring a miscarriage. Section 228 criminalises the illegal procurement of a miscarriage, together with conduct undertaken by a lady herself. Section 229 addresses the availability or procurement of gear or devices for the aim of unlawfully procuring a miscarriage, whereas Section 230 offers with sure acts carried out by medical practitioners and different individuals.
The statutory framework due to this fact criminalises not solely the procurement of a miscarriage but in addition numerous types of help in procuring one. The exact legal responsibility and relevant penalty rely on the availability and circumstances concerned.
The legislation supplies an exception beneath Section 297 of the Criminal Code, which protects sure surgical operations carried out in good religion and with cheap care and ability for the good thing about an individual, topic to the statutory necessities. This exception doesn’t quantity to a basic authorisation of abortion on demand as envisaged by the Ogun State Law.
Furthermore, Section 309 supplies that, “when a child dies in consequence of an act done or omitted to be done by any person before or during its birth, the person who did or omitted to do such acts is deemed to have killed the child.” Section 328 supplies that “any one who, when a lady is about to be delivered of a kid, prevents the kid from being born alive by any act or omission of such a nature that, if the kid had been born alive and had then died, she could be deemed to have unlawfully killed the kid, is responsible of a felony, and is liable to imprisonment for all times.
These sections of the Criminal Code Act are precisely the identical within the Criminal Code Law of Ogun State.
That means in Ogun State, abortion is at the moment unlawful and part 20 of the Ogun State Safe Termination of Pregnancy Bill, which seeks to invalidate any legislation that contravenes the invoice can be not a remedy, primarily based on the Supreme Court Judgment in Udeogu v FRN.
In Udeogu and FRN, the Supreme Court frowns at legislations, utilizing phrases like “any other law”, or “any other law to the contrary”, when the legislation which the brand new invoice seeks to override will not be even outlined.
With regard to the standing of abortion in Nigeria, a number of judicial {and professional} disciplinary proceedings have positively said what it’s.
In the article “Is Abortion Criminalized in Nigeria? A Critical Examination of the Nigerian Legal Framework,” Abdulqayum Kehinde Yunu mentioned authorities that addressed the legal penalties of illegal abortion and the interpretation of the related legal code provisions.
In Medical and Dental Practitioners Disciplinary Tribunal v. Dr. F.A., the tribunal eliminated a physician from observe for performing abortions exterior life-saving exceptions, defining abortion as “unlawful termination of pregnancy via medical or surgical means,” culpable beneath S.228 no matter consent. In State v. Ifeanyichukwu, the court docket held that natural concoctions leading to fetal demise constituted miscarriage beneath S.228, sentencing the defendant to 10 years’ imprisonment, thereby together with conventional strategies alongside medical procedures akin to D&C. The Supreme Court in A.G. Lagos v. Egun, clarified that abortion means “any deliberate interference with normal pregnancy processes to end fetal life,” illegal with out S.297 good religion, rejecting therapeutic expansions absent statutory modification
This is the legislation in Nigeria and a state can’t, declare a process lawful the place a federal legislation has made that process unlawful and when such occurs, Section 4 (5) of the Constitution will apply
Section 4(5) supplies that, “If any Law enacted by the House of Assembly of a State is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail, and that other law shall, to the extent of the inconsistency, be void.”
The provision establishes a transparent constitutional rule: the place a legitimate federal legislation and a state legislation battle, the federal legislation prevails to the extent of the inconsistency.
This is generally known as the Doctrine of Covering the Field. In Attorney-General of Ogun State v. Attorney-General of the Federation, the Supreme Court clarified that the place each the National Assembly and a State Assembly make legal guidelines on the identical matter (particularly beneath the Concurrent List), and the federal legislation is legitimate and complete, the state legislation turns into void if it conflicts.
Fatayi-Williams, JSC said; “If both federal and state laws exist on the same issue, the state law must give way if the federal law has fully covered the area.” and Kayode Eso, JSC, offered a concise definition as follows: “Covering the field” merely means as soon as the federal legislation legislates totally on a matter, any conflicting state legislation is of no impact.”
Based on the above it isn’t unsure that the Ogun State Safe Termination of Pregnancy Law, 2026, raises a severe constitutional query.
The difficulty will not be merely whether or not abortion needs to be legalised as a matter of public coverage. It is whether or not the Ogun State House of Assembly possesses the constitutional authority to create exceptions to the relevant legal legislation within the method contemplated by the Law.
In my humble opinion, they don’t. One is pressured to surprise if the Ogun State House of Assembly sought the view of the Attorney General of the State, Oluwasina Ogungbade SAN. If they did, absolutely the discovered silk would have highlighted the unconstitutionality and futility of their motion.
Nwachukwu writes from Lagos
