The misconceptions in section 35 (1)(e) of the Nigerian constitution and the right to liberty of persons with mental disability

Author: Abasiodiong Ubong Udoakpan
Data Protection Advisor, Researcher and a Human Rights Lawyer

The basic principle of any type of essential psychosocial care, is to respect the safety, dignity and rights of anyone you are helping, but can this be excused? An aspect of the Convention of the Rights of Persons with Disabilities (CRPD) appears to be particularly challenging to conventional mental health practice. This concerns involuntary treatment. Along with the general right to liberty, similar to that contained in other human rights instruments, the CRPD provides that ‘the existence of a disability shall in no case justify a deprivation of liberty,[1] but what happens when the Constitution set out standards and procedures by which psychiatric interventions can be imposed against the will of a person?

In Nigeria, the Constitution clearly imposes some restrictions on the rights of persons with mental health challenges. Section 35 (1) (e) states: Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law- (e) in the case of persons suffering from infectious or contagious disease, persons of unsound mind, persons addicted to drugs or alcohol or vagrants, for the purpose of their care or treatment or the protection of the community.[2] This provision allows restriction of the liberty and freedom of persons with mental disabilities when it is necessary for the purpose of caring for or treating them or the protection of the society. Ergo, this section creates two misconceptions about mental illness – the misconception of incompetence and the misconception of risk/threat.

The Misconception of Incompetence

The stigmas associated with mental illness have fueled misperceptions and perpetuated enduring negative stereotypes. As a result, these misconceptions have become pervasive and influential on the public discourse surrounding mental disability and the right to mental health. The first misconception is that of incompetency, which relies on the false assumption that persons with psychosocial disabilities cannot competently make decisions or grant consent. In actuality, psychosocial disabilities vary substantially. While some people with mental health challenges may lack competency, others have full competency or merely limited incapacity. The public is not aware of many people living with mental health problems because they are highly active and productive members of society. A person’s right to mental health clearly may be undermined if they are erroneously assumed to be incompetent.

The Misconception of Threat/Risk

A second destructive myth is the common misconception that persons with psychosocial disabilities pose a threat to others. Extensive research shows that persons with mental disabilities have no greater propensity to commit violent acts than anyone else.[3] In fact, people with mental illness are far more frequently the victims of violence than the general population. Nevertheless, society often gives disproportionate attention to the rare cases when a person with psychosocial disability commits a violent crime. Even a single high-profile incident of this nature can fuel public outrage and stigma against all persons with psychosocial disabilities and may provide the motive to enact more severe mental health laws. These stigmas lead to further discriminatory behaviours. The vast majority of people with mental health problems are no more likely to be violent than anyone else. Most people with mental illness are not violent and only 3%–5% of violent acts can be attributed to individuals living with a serious mental illness. In fact, people with severe mental illnesses are over 10 times more likely to be victims of violent crime than the general population.[4]

The Way Forward

The core reason for mental health legislation is human rights. The right to health, as it exists in international human rights instruments, clearly encompasses both physical and mental health. The promotion and protection of both mental and physical health are necessary to ensure one’s ability to enjoy and benefit from other human rights. Thus, efforts to recognise and uphold a human right to mental health must also include the right to be free from interference, such as the right to be free from compulsory detention and involuntary medical treatments. Establishing and upholding mental health rights will advance the dignity and welfare of persons with mental disabilities and at the same time ensure their access to quality health services.

Finally, there is a need to review mental health legislation in countries particularly in Africa to ensure that they reflect international human rights standards and current knowledge in the area of mental health treatment and care, taking into account the social, economic, and cultural context of the particular country.

[1] UNCRPD, Article 14(1)(b).

[2] S.35 of the 1999 Constitution of the Federal Republic of Nigeria, as Amended.

[3] Nicolas Rusch et al., Mental Illness Stigma: Concepts, Consequences, and Initiatives to Reduce Stigma, 20 EUR. PSYCH. 529 (2005).

[4] Mental Health Myths and Facts, https://www.mentalhealth.gov/basics/mental-health-myths-facts accessed 17 August 2022.

About the Author:
Abasiodiong Udoakpan is a Data Protection Advisor, Researcher, and a Human Rights Lawyer with an LL.M in International Human Rights. His research blueprint centers on the intersection of International Law, Human Rights and Global Health & Policy with further interests in Mental Health, Climate Change, Food & Drugs.