Qudus Adebola Alalafia Esq.
Before the introduction of English rule, Africa had developed its methodology for treating a different kind of ailments. This methodology as far as the universe is concerned today, stands the test of time. Traditional medicine practice is as old as mankind and started with the use of herbs for the management of ailments by early men.[1] Records exist in Asia, Europe, South America, and particularly in Africa about the early use of medicinal plants in the management of different conditions.[2] For instance, the pharmacopeia of Emperor Shen Nung of China between 2730 and 3000 B.C., included the use of chaulmoogra oil from Hydnocarpus Gaertn species in the treatment of leprosy.[3]
The most established records of ancient use of medicinal plants in Africa is that of the use of the seeds opium poppy (Papaver somniferum L.), castor oil (Ricinus Communis L.) and Ebers papyrus as far back as 1500 B.C. in Egypt.[4] Acupuncture has been practiced by the Chinese since the Stone Age and has spanned over 2000 years.[5] Astrology in medicine was introduced by the herbalist, Culpeper in the seventeenth century.[6] Medical history has it that many great medical philosophers of old practiced herbal medicine as a skill in their trade.[7] Such philosophers include Hippocrates’ (460 B.C.), Theophrastus of Athens (370 B.C), Pliny the Elder (A.D. 23), Dioscorides (A.D. 60), Galen (131 A.D.), St Columba (A.D. 563) and Avicena (A.D. 980) (Sofowora, 2008).[8] These physicians laid the foundation for the development of ancient traditional medicine into western medicine.[9] The first organized Medical School in Europe was that at Salerno, and thrived from A.D. 1090 to 1275. (Sofowora, 2008). The history of traditional medicine in ancient ethnic Nigeria as in most West African countries is shrouded in cultural myths and folklore tales most of which have not been well documented. It is however obvious from traditional relics and folklores that these ethnic communities used one form of traditional medicine or the other since the ancient days.[10]
As beautiful as the tale of traditional medicine is and notwithstanding its efficacy on the human body when and if administered, it remains subservient to the English rules and doctrines because this rule has been transplanted into our indigenous system and the same is used as the basis to test the validity of our traditional system. That notwithstanding, the post-colonial era also did not salvage the situation because it continued to make our traditional systems suffer in the most belligerent manner either by total alienation, elimination of the traditional systems, or by way of subjecting traditional medicine to certain laws and enactments which have the flavour of English rule and doctrine, an example is the Medical and Dental Practitioner Act, 2004 Cap M8 and a cursory appraisal of which shows total subjugation of our traditional medicine to the Law said to be a direct descendant of the English rule. For instance, the Medical and Dental Council of Nigeria delineates the major types of medicine considered to be alternative medicine as; traditional mental care or medical practice; herbal medical practice; spiritual medical practice; and Islamic medicine. Thus, in the Nigerian context, Alternative Medicine may be described as all forms of medical practice that are well known to indigenous Nigerian communities; especially those rooted in traditional herbal knowledge and local informal training and spiritual or religious beliefs, as opposed to the orthodox allopathic system as formally taught in Occidental oriented medical schools.[11] The practice of traditional medicine is apparently under the supervising and controlling power of the council which oversees the supervision of the practice of homeopathy and other forms of alternative medicine.
Whilst it appears that the Medical and Dental Practitioner Act allows traditional practice wherein any person; that is acknowledged by the members generally of the community to which he belongs as having been trained in the system of therapeutic medicine traditionally in use in that community, the offenses and punishment spelled out under the act shall not be construed as making it an offence for that person to practice or to hold himself out to practice that system.[12] However, the exemption conferred by the former shall not extend to any activity involving an incision in human issue or to administering, supplying, or recommending the use of any dangerous drugs of the Dangerous Drugs Act.[13] While an argument may be made that the intendment of the Act is to control the administration and use of drugs, the act of subjugating traditional medicine to an Act with a root in the English system without giving it chance to strive is the major source of concern.
In traditional Nigerian contemporary society, the practice of medicine is a highly dignified profession and a significant constituent of the African Education System for intellectual training. Like similar traditional professions, it involves elaborate and often very complicated systems of pre-initial training. When a young person undergoes training in traditional medicine, he receives instruction in a customary system of advanced education for which admission is very competitive and restricted to those who have demonstrated capacity for further growth and the ability to keep secrets. As a general curriculum, the neophyte learns the secret of power (real and imaginary) as well as native philosophy, science, and the theology of animism, all depending on the profession the young man wishes to pursue.[14]
Upon completion of such specialized training, traditional medical professionals hold a particular belief system shared by members of the society in general in that their medicine can be used to kill and/or secure power, health, and fertility in addition to personality or moral reforms. It is said that medicine is all-encompassing and it has various multipurpose functions. Medicine goes beyond herbs in African society, it also combines magic. It involves tree barks, herbs, roots of a tree, incantations and so many things altogether.[15] It, therefore, follows those traditional alternative practices that transcend the concept of an ordinary career that is easily pushed aside with a wave of the hand as it is a special characteristic of the traditional folk way of Nigerians. Hence, like any other field of study based on indigenous education, it is said that opportunities should be created for it to strive.[16]
Whilst the purpose of this paper isn’t to rubbish the English rule and doctrine but rather to make a case for the application and recognition of the African traditional medicine without subjugation, an insight is therefore made into the usefulness of the English rule and doctrine to the African traditional medicine. Borrowing from the words of the very well-respected ancient philosopher; Aristotle, who aptly said “man is the best of animals when he is moderated by law, but the worst of the beast when he lives without law and justice”. If this statement is anything to go by, therefore the effect of law as a tool of social control is indispensable. The expression “natural justice, equity, and good conscience” is generally referred to as the repugnancy doctrine under English rule.[17] The repugnancy doctrine has generally and positively affected the development of our corpus juris. It is said that any action inconsistent with the principle of natural fairness and good conscience shall be struck down for being repugnant.
It is agreed that owing to the days when gods were believed to be in charge of the state of affairs of the land, human sacrifices and other untold stories were the other of the day and for the timely intervention of the repugnancy doctrine which is deeply rooted in the English system helped to strike down a majority of these archaic customs which include but not limited to witchcraft, cultism, osu caste, etc. it is argued that the English principle of equities which housed the repugnancy doctrine has been part of the indigenous people of Africa in that everyone could tell between what is right or wrong. Be that as it may, one cannot deny the fact that as conscionable as we were, these heinous practices were still carried out until the English rule was introduced to us which thereafter struck the majority of our customs and traditions down for being inconsistent with the principle of natural justice, equity, and good conscience.
Notwithstanding the shortfalls of the repugnancy doctrine in our legal system, it must be stated that the doctrine has had an appreciable effect and impact on the development of our customs and traditions by the elimination of some unjust inhuman, and barbarous practices inherent in them and in some cases throwing away some otherwise useful customs and traditions.[18] There appears to be no manifest legislative or statutory explanation for subjecting our Customary Laws to the repugnancy test.[19] This is so because neither the legislators nor the various statutes have any explanation as to why the Customary Law must be subjected to this test before it could be recognized or enforced by the courts. It is herein concluded that there appears to be a judicial justification or rationale which could be found in early judicial pronouncements, few of which are briefly considered.[20] In Laoye & Ors v. Oyetunde,[21] Lord Wright of the Judiciary Committee of the Privy Council declared thus;
“The policy of the British Government in this, and in other respects, is to use for purposes of the administration of the country, the native laws and customs in so far as they have not been varied or suspended by statutes or ordinances affecting Nigeria. The courts which have been established by the British Government have the duty of enforcing these native laws and customs so far as they are not barbarous, part of the law of the Land.”
Today under our corpus juris, it is forbidden to do or perform any witchcraft or any occultic acts which were allowed under the ancient customs and tradition. For example, under the Criminal Code Act in force in the Southern Nigeria, any person who by his statements or actions represents himself to be a witch or to have the power of witchcraft; or accuses or threatens to accuse any person with being a witch or with having the power of witchcraft; or makes or sells or uses, or assists or takes part in making or selling or using, or has in his possession or represents himself to be in possession of any juju, drug or charm which is intended to be used or reported to possess the power to prevent or delay any person from doing an act which such person has a legal right to do, or to compel any person to do an act which such person has a legal right to refrain from doing, or which is alleged or reported to possess the power of causing any natural phenomenon or any disease or epidemic; or directs or controls or presides at or is present at or takes part in the worship or invocation of any juju which is prohibited by an order of the State Commissioner; or is in possession of or has control over any human remains which are used or are intended to be used in connection with the worship of invocation of any juju; or makes or uses or assists in making or using, or has in his possession anything whatsoever the making, use or possession of which has been prohibited by an order as being or believed to be associated with human sacrifice or other unlawful practice; is guilty of a misdemeanour, and is liable to imprisonment for two years.[22]
Be that as it may, it is submitted that the repugnancy doctrine introduced by the English rule is overstretched to cover and made superior to our traditional customs and system notwithstanding the fact that there are some norms under same that are of good use to the society. Speed, Acting C.J. in Lewis v. Bankole,[23] admitted to this fact that our traditional systems are one that is desirous and most perfect to be observed and retained when he held;
“I do not wish to be understood to be speaking with any disrespect of the customs of your ancestors. There was much that was admirable and much which I hope will be retained for many years in the family system which they evolved………,”
The development of the western-type health care system in Nigeria closely followed the pattern of the geopolitical development of the Nigerian state and started as a unitary health service system by the central government of the colonial era of 1940s and gave a limited framework for development up till 1951.[24] This was followed by regionalization in the 1950s (1954-1959) when the regional governments ran independent or parallel health care systems along with the federal government. The regional era was the transition period leading to the independent and the post-independent era of 1960 and beyond, respectively.[25]
The development of health care services during the colonial era was basically on two fronts. These include the establishment of health care facilities and training and development of human resources. The modern medical services first introduced by the traders and later sustained by religious missionaries were distributed in the areas of activities of these missions.[26] These activities were later regulated or taken over by the colonial government, and the hospitals later metamorphosed into nursing homes and general hospitals.[27] The Army Medical Corp (AMC) set up by Lord Lugard in Lokoja during the first world war of 1914-1918 pioneered government medical services in Nigeria and gave birth to a uniform medical service. Between the First and early post second world war period, development in educational institutions and training of medical professionals grew rapidly.[28]
A ten-year development plan put forward in 1946 led to the establishment of the Ministry of Health which was saddled with the responsibilities of coordinating health services and the development of the health sector throughout the country.[29] With the gaining of independence in October 1960, Nigeria became a member of the World Health Organization, and upon becoming a Republic in 1963, she became a full member of the United Nations Organization. From one central and three regional governments at independence, the country has grown to one central government, thirty-six (36) state governments and the Federal Capital Territory of Abuja, and seven hundred and seventy-four (774) local governments, with the three tiers having concomitant and concurrent constitutional responsibilities for the provision of health care services. The three tiers also fragmented health services into primary, secondary, and tertiary levels of services/providers. The distribution of service providers and facilities was uneven and the responsibilities were operated within a policy framework that was not clearly articulated and defined. This created staid gaps in the system. In order to ensure a reasonable measure of intra- and inter-sectional cohesion in the different sectors, the National Council on Health (NCH) was established.[30]
The inference implied above shows the development of modern medical practices and how it was made subconsciously to relegate the practice of traditional medicine in Nigeria. It is said that so far, the new policies, regulations, and programs on modern medicine practices came after traditional medicine practices have gained their weight within communities making up Nigeria. Modern medicine practices ought to have been made to align with the programs and policies met on the ground as dictated by the traditional medicine practices. It is most provocative to say that the policies, rules, and regulations upon which the modern medicine practice stands on is an idea and the creation of people who are neither indigenous to Africa or descendants of the people of Africa. As a matter of fact, it is best described as totalitarianism wherein the efforts of our founding fathers who created and practiced traditional medicine base on societal norms and believe and particularly base on the acceptable standard values within the indigenous people of Africa were thwarted under the guise that such practices were repugnant in nature.
It is therefore argued that notwithstanding the fact that the English system which introduced the repugnancy doctrine has its positive impact on our traditional medical practice, same affect the traditional system in a delictuous manner that made the traditional systems lost its prestige and virtues within the people that created it. In fact, anyone who practiced same in this dispensation is either seen as illiterate, uneducated, opaqued in practice, novice, amateur or a wizard whom everyone should be wary of and distant from. Undoubtedly, the doctrine of repugnancy has made rubbish the doctrine traditional medicine practice under the guise of developing it as all practices associated thereto traditional medicine practice are on the verge going into extinction.
Like the functionalists are concerned with law’s operative role in society by emphasizing the social effect of its operations (including the fulfilment of any existing ideals of the society, and including interactions of causes and effects); the effect of repugnant doctrine and the judicial blessing it receives from the nation’s judiciary necessitate an uprising question such as; what is the role of ethical or evaluative judgment? Is there an endorsement of the ideals then existing in the public? Is there an endorsement of any ethical goals in the minds of those who are discharging the function (goals which may not be fulfilled because, for instance, the actual consequences of their activity may be other than intended)? The answer is, No. Usually at least, the functionalist model implied no ethical judgment as to the official goals or the ideals or social needs being served (nor did it imply any confinement to intended consequences).
Today in Nigeria, only persons who have undergone medical studies and practice as prescribed by the Medical and Dental Council pursuant to Medical and Dental Practitioners Act is allowed in the public service to carry out some public functions such as carrying out of autopsy to mention but a few which the judiciary has blessed with judicial favour without caution. For example, in the cases of Oladapo v. State[31] and State V. Ajie,[32] the Court held that a medical officer in the service of a state for the purpose of undertaking a post mortem examination is a pathologist and his report is therefore a certificate as contemplated by the Subsection (Section 55(1) (a) of the Evidence Act 2011. The certificate when admitted is sufficient evidence of the facts stated therein. It is a trite law that documentary evidence speaks for itself. In Edoho v. State[33] the Supreme Court held;
“By virtue of Section 249 (3) of the Criminal Procedure Code, a written report by any medical officer or registered medical practitioner may at the discretion of the court be admitted in evidence for the purpose of proving the nature of any injuries received by and the physical cause of the death of any person who has been examined by him. On admission of such report, same shall be read over to the accused and he shall be asked whether he disagrees with any statement therein and any such disagreement shall be recorded by the court. If by reason of any such disagreement or otherwise it appears desirable for the ends of justice that such medical officer or registered medical practitioner shall attend or give evidence in person, the court shall summon such medical officer or registered medical practitioner to appear as a witness.” Per OLUFUNLOLA OYELOLA ADEKEYE, JSC (Pp 17 – 17 Paras A – E)”
Also, it is stated that insofar a person acts in a manner accepted by a responsible body (which in this case is the Medical and Dental Council), such a person would be free from any liability. In ABI v. CBN & ORS,[34] the Courts held that it has long recognized that there is no negligence if a doctor exercises the ordinary skill of an ordinary competent man professing to have that special skill. The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill is the direction to the jury given by Mcnair J in Bolam v. Friern Hospital Management Committee:[35]
“A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. I do not think there is much difference in sense. It is just a different way of expressing some thought. Putting it the other negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” The above standard is the test for which a doctors’ function of diagnosis and treatment is. considered.”
Although it appeared that traditional medical practitioners are allowed to carry on business under section 17 (6) of the Medical and Dental Practitioners Act wherein it states that where any person is acknowledged by general members of a community to which he belongs as having been trained in the system of therapeutic medicine traditionally in use in that community, nothing under the Act shall be construed as making it an offence for that person to practice or to hold himself out to practice that system. Nevertheless, same does not extend to any activity involving an incision in human issue or to administering, supplying or recommending the use of any dangerous drugs within the meaning of Part V of the Dangerous Drugs Act. The discrimination created by the court between modern medicine practice and our tradition came to the fore in Ivwighre v. State[36] wherein the court expressly held:
“The medical report, Exhibit “B” corroborated the fact that PW1 was violated. In my view, the learned trial Judge was right in law when he held that the PW1 suffered sexual assault. And Exhibit “B” the medical report tendered in this case showed that on examination of PW1, laceration and bruises of the hymen was noticed on her. The Learned Counsel for the Appellant is not contesting the fact that Exhibit “B” corroborated the testimony of PW1 that she was raped however he is not happy that the medical report relied upon by the prosecution came from a private Medical Doctor in a private clinic instead of a government hospital. In my view, as long as the medical report is from a qualified Medical Doctor, whether it is from a private hospital or government hospital is a non-issue. The learned trial Judge was therefore right when he held that the medical report Exhibit “B” corroborated the evidence of PW1.” (The underlined is mine).
The express mention of a thing is said to be to the exclusion of every other thing. The expression used by the court, in this case, evidence the fact that only a qualified medical practitioner within the meaning of the Medical and Dental Practitioners Act is qualified to give a medical report in court in a given case such as the one cited above before such report as documentary evidence can be admissible in evidence. This expression outrightly shut out all alternative medical practitioners who are regarded as a traditional medical practitioner from giving reports in court capable of being admitted in evidence. The main crux, therefore, is that if the court as the last hope of the common man could shut out traditional medical practice without reservation, then little can only be said about the injustice this has occasioned. Perhaps an allusion would be made to the fact one could only wonder and be surprised in a bit because even our courts are products of the English doctrine through the Judicature Act of 1873-1875 which fused the Common Law Court and Court of Equity (under which the repugnancy doctrine was introduced) to make the present Courts we have in the world today.
As a corollary to the above is the guidelines that qualify one for an appointment under the civil service rule which in this case relates to government health officials; is that every applicant must not be less than 18 years and not more than 50 years of age; possess such minimum qualification as may be specified from time to time including computer literacy; be certified by an authorized HealthCare Provider as medically fit for Government Service; possess a testimonial of good conduct from the last employer or if not previously employed, from the last school or college attended; and possess requisite qualifications as provided for in the scheme of service.[37] The purport of this guideline to this paper is that Nigerian legislation has persistently refused and denied traditional medical practitioners in the comity of health workers notwithstanding the fact that our customs and traditions which form the basis of our Nigerian Customary Law and are a strong primary source of law have been tested to be accurate and reliable before the advent of the colonial rule. Undoubtedly and as earlier pointed out that customary law is recognised as a strong primary source of law being the reason for retaining some of same in our body of rules. If this is so, there is no reasonable ground or justification for subjugating the traditional medical practices to the orthodox method of medicine as they can be practiced side by side without conflict.
The jurisprudence here is drawn from the authority of Idundun v Okumaga[38] which identifies traditional ways amongst other ways of proving title to land. The proof of one of the five ways espoused in the decision of the appellate court is sufficient to discharge the burden of proving title to land. The inference here is that law is all-encompassing and should not be seen performing cherry-picking. Insofar the law recognises the usefulness of the traditional means of proving title or owing title to land due to its accuracy and effectiveness in the pre-colonial era, same could and should be extended to the traditional medical practices which have been in existence prior to the introduction of the English rule which thereafter made it a subservient to an orthodox method of medical practices and rubbishing same under the guise of civilisation.
In conclusion, it is recommended that notwithstanding the divergent nature of our customs and traditions in Nigeria, the fact remains that traditional medical practices have been tested to be the same in virtually all tribes and ethnic groups in Nigeria arising from the joint use of roots of trees, tree barks, herbs, etc., as medical ingredients for the cure of major ailment in Nigeria. The act of allowing the sale of traditional medicines by the government through the issuance of a license and approval from the National Agency for Food and Drugs Administration Control remains a pseudo approval and authorisation of the traditional medical practices because persons that practice same have not been adequately protected and identified to be medical practitioners by the government at all levels, not even in our Courts. It is believed that the same way traditional drugs are approved by the relevant governmental agencies, same could be extended to its traditional medical practices when it is fully allowed to take effect.
Finally, it is said that medicine is all-encompassing and it has various multipurpose functions which go beyond orthodox but extends to the combination of tree barks, herbs, roots of a tree and so many things altogether and the better option for the government is the sober approach of establishing a system of standardization via critically considered legal remedies and qualified educational guidelines.[39]
Qudus Adebola Alalafia is the Head of Chambers, Clemesis Associates, Abuja, a Business Law Lecturer, Tax Academy of the Chartered Institute of Taxation of Nigeria, Abuja. 07034479679, 08134384468. alalafiaqudus@gmail.com, qudusalalafia@gmail.com
Footnotes
[1] Egharevba; Henry Omoregie; Ibrahim; Jemilat Aliyu; Kassam, Chakji Danjuma and Kunle,
Oluyemisi Folashade, “Integrating Traditional Medicine Practice into the Formal Health Care Delivery
System in the New Millennium–The Nigerian Approach: A Review.” (2015) (4) International Journal of Life Sciences, 120 – 128
[2] ibid
[3] ibid
[4] ibid
[5] ibid
[6] ibid
[7] ibid
[8] ibid
[9] ibid
[10] ibid
[11] Abdullahi Saliu Ishola; Yusuf Abdul Azeez; Mansoureh Ebrahimi, “The Conceptual and Contextual Jurisprudence of Alternative Medicine in Nigeria” (2015) (1) American Research Journal of History and Culture, 6.
[12] Section 17(6) of the Medical and Dental Practitioner Act, 2004 Cap M8.
[13] ibid
[14] Abdullahi Saliu Ishola; Yusuf Abdul Azeez; Mansoureh Ebrahimi, “The Conceptual and Contextual Jurisprudence of Alternative Medicine in Nigeria” (2015) (1) American Research Journal of History and Culture, 7.
[15] ibid
[16] ibid
[17] J.O Fabunmi, Equity and Trust in Nigeria (Obafemi Awolowo University Press Limited, Ile-Ife, Nigeria, 2006).
[18] O.W. Igwe; M.D. Ogolo, “Repugnancy Test and Customary Criminal Law in Nigeria:
A Time for Re-assessing Content and Relevance” (2017) (3) Donnish Journal of Law and Conflict Resolution, 035-039.
[19] ibid
[20] ibid
[21] (1944) AC 170.
[22] Section 210, Criminal Code Act, Cap C38 LFN 2004.
[23] (1935) 12 NLR 7.
[24] Egharevba; Henry Omoregie; Ibrahim; Jemilat Aliyu; Kassam, Chakji Danjuma and Kunle,
Oluyemisi Folashade, “Integrating Traditional Medicine Practice into the Formal Health Care Delivery
System in the New Millennium–The Nigerian Approach: A Review.” (2015) (4) International Journal of Life Sciences, 120 – 128
[25] ibid
[26] ibid
[27] ibid
[28] ibid
[29] ibid
[30] ibid
[31] 2013) LPELR-22092(CA); (2000) 11 NWLR (Pt 678) 434 at 446 E-F
[32] (2000) JELR 50913 (SC)
[33] (2010) LPELR-1015(SC)
[34] (2011) LPELR-4192(CA)
[35] (1957) 2 All England Reports 118 at page 122.
[36] (2018) LPELR-44862(CA)
[37] Public Service Rules (2008 Edition).
[38] IDUNDUN & ORS v. OKUMAGBA & ORS (1976) 9-10 SC 227
[39] Abdullahi Saliu Ishola; Yusuf Abdul Azeez; Mansoureh Ebrahimi, “The Conceptual and Contextual
Jurisprudence of Alternative Medicine in Nigeria” (2015) (1) American Research Journal of History and
Culture, 7.
Credit: DNLLegalandstyle
