Euthanasia In Africa: Could South Africa’s Constitutional Court Legalize It?

Written by Andrew Friedman

What constitutes human dignity when a life is near its end? It is this question that was explored by Nobel Laureate Archbishop Desmond Tutu in a recent letter to The Guardian.  The Archbishop, now that he nears the end of his life and after watching the slow decay of Nelson Mandela’s health, has begun to think more about that final moment.

“I have been fortunate to spend my life working for dignity for the living. Now I wish to apply my mind to the issue of dignity for the dying,” writes Tutu.

This fits within a wider debate playing itself out in South Africa over the legality of euthanasia and the right to end life on one’s own terms.

According to News24, civil society group Dignity South Africa has revealed plans to meet with legal counsel over a potential constitutional challenge to the country’s prohibition on euthanasia. A potential legal challenge, which would fall under the jurisdiction of the South African Constitutional Court, stems around the same “human dignity” concept so central to Archbishop Tutu’s argument.

Human Dignity is mentioned more than a dozen times in the South African Constitution, including article 10 which specifically defines human dignity as innate and guarantees all “the right to have their dignity respected and protected.”

The legal status of assisted suicide in the country is nuanced rather than outright prohibition.

According to Dignity, a number of such court cases were reviewed in the 1990’s and it was determined that “even though the accused were found guilty of murder, none had served jail sentences.” The hands-off nature of the criminal law does not extend to civil litigation.

“If you for instance helped your mother to die or decided to switch off her life-support machines, you could be sued by a sibling” said Professor Willem Landman, a founding member of Dignity.

The same is true for complexities in insurance law, where insurance companies may not pay out life insurance claims on terminally ill patients who chose to end their lives.

The group is calling for “clear laws that decriminalise assisted suicide and legalise living wills.” Without such clarity, those that assist are open to legal liability, both civil and criminal, even if such criminal laws are generally unenforced.

There was an attempt to clear up this legal ambiguity during Mandela’s presidency, with Madiba himself commissioning a review and draft bill in 1998, but the law was tabled in 2000 and nothing became of it. This influenced Dignity’s interest in the Constitutional Court, with a group representative telling News24 that working with parliament could take years of lobbying.

Human Dignity

South African legal ambiguity on euthanasia is very much within the international norm. According to a recent survey by CNN, no African countries have comprehensive legalization or regulatory schemes surrounding assisted suicide, likely instead including examining the practice within existing homicide or suicide provisions.

Archbishop Tutu is not the only high profile South African stirring debate about the controversial topic. Just a few weeks ago former Member of Parliament Mario Oriani-Ambrosini took his own life after more than a year battling lung cancer.

While, according to the Independent Online, his family opted against sharing details of the end of Oriani-Ambrosini’s life, his widow, Carin Ambrosini stated unambiguously that it was his choice, saying “He chose to end a long, courageous battle and chose to put an end to it. He was true to himself and his own convictions and thinking,”

Should Dignity end up taking the issue of assisted suicide to the Constitutional Court, the case will no doubt be watched closely across the continent and the world. At least 88 countries across the world have references to “human dignity” in their constitutions (notably, not the United States). This includes 28 African states in addition to South Africa.

The respect garnered by South Africa’s Constitutional Court leads it to strongly influence in judicial decisions across the world, in what legal and constitutional scholars have termed “cross-judicial” or “cross-constitutional” influence. This, then, creates the possibility that any determination it makes on assisted suicide will influence such decisions in high courts worldwide.

Euthanasia, or assisted suicide, is an extremely controversial issue.

In Archbishop Tutu’s letter to The Guardian, he decries the taboo nature of talking about death and dying. “It is important for all of us to talk about death and our dying. A survey was done of doctors in the UK in 2008. As many as two-thirds of them said they had difficulty discussing end-of-life care with their patients.”

This is an unfortunate occurrence, due to death’s inevitability. It would be less of an issue if the difficulty discussing life’s end had no ill effects, but according to the Archbishop it denigrates human dignity, such was the case in Mandela’s final months and days.

Dignity South Africa, a civil society group, shares this view that basic human dignity requires a right to end ones life on ones own terms. If the South African Constitutional Court agrees, it may be the beginning of a movement across the continent and, indeed, across the globe.

Andrew Friedman is a human rights attorney and freelance consultant who works and writes on legal reform and constitutional law with an emphasis on Africa. He can be reached via email at afriedm2@gmail.com or via twitter @AndrewBFriedman.

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