INTRODUCTION

Ever watched ‘Dead Man Walking’?

Yes, a real life story of an innocent man executed in Texas for an act of arson that killed his children despite strong evidence that he was not guilty. Apparently, that was the movie I watched on the 10th of November 2020; coincidentally, the exact day was the first time capital punishment was introduced in Nigeria during the execution of the Ogoni Nine in 1995. Then I wallowed in my thought and it birthed this article.

This article is written to make a reform on capital punishment in Nigeria. Obviously, there should be a change!

Know more about capital offence, capital punishment, the positive and negative sides of it, why life imprisonment should replace it and of course my take on the subject matter.

Capital Punishment in Nigeria

Let’s go down history lane, during the Nigerian military juntas of 1966–79 and 1983–98 in the regime of most notorious General Sani Abacha after the interim government led by Shonekan in 1993, the government executed its political opponents, the Ogoni Nine by hanging in 1995 which was the first time capital offence was introduced to Nigeria.

However, death penalty is synonymous to capital punishment. It is provided for under the following statutes: The Criminal Code Act LFN (Laws of the Federation of Nigeria), The Penal Code Act LFN 1990, The Robbery and Firearms Decree 1984 (still applicable) and The Holy Books.

The death penalty is authorized by S. 33 of the Constitution of the Federal Republic of Nigeria; the legality of capital punishment is well grounded in the Constitution of the Federal Republic of Nigeria 1999 (as amended). Thus, S. 33(1) of the Nigerian Constitution provides:

‘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.’

A capital offence is therefore an offence which upon commission, attracts the penalty of death. However, capital crimes include murder, terrorism-related offenses, rape, robbery, kidnapping, sodomy, homosexuality, blasphemy, adultery, incest, assisting the suicide of a person legally unable to consent, perjury in a capital case causing wrongful execution, treason, conspiracy to treason, treachery, fabricating false evidence leading to the conviction to death of an innocent person, aiding suicide of a child or lunatic, firearms and some military offences like mutiny. It is penitent to note that capital offenses in a particular jurisdiction might differ to another i.e. what a particular society presumes to be punished with a death penalty might be seen as an offence that would be punished with the ‘everyday’ punishment in another society. Also, under the various Sharia Penal Laws applicable to 12 States in Northern Nigeria, these offences carry the death penalty: zina (adultery); rape; sodomy; incest; witchcraft and juju offences.

In Nigeria, offences are classified as simple, misdemeanours and felonies. Felonies are the most serious offences and it therefore go along with capital punishment. Recently, in Nigeria, the offence of kidnapping was made a capital offence by some states with death as penalty for conviction. The states include: Abia, Bayelsa, Akwa-Ibom, Anambra, Ebonyi, Enugu Imo and Edo.

Methods of executions include hanging, firing squad, stoning, and since 2015, lethal injection.

The judge’s power to sentence is limited to imposition of capital punishment once the accused person is found guilty of a capital offence. The implication of this provision of the constitution is that death penalty is a legal form of punishment when it is carried out in the execution of a sentence of court of competent jurisdiction in respect of a criminal offence for which a person has been found guilty in Nigeria. Death Penalty is also similar to the principle of self-defence which the law permits. It is a known fact that there is always a tendency for people to defend themselves against assailants or kill attackers if their own lives are in danger pursuant to S.33(2)(a) of the CFRN. Howbeit, the use of the death penalty in Nigeria has generated debate especially when inmates who are on death row are given right to enjoy prorogation of mercy from the government.

Exception to Death Penalty

There are however exceptions to the general rule of the imposition of capital punishment. Thus, the following are categories of offenders who are exempted from death penalty in Nigeria:

The Juvenile Offender: It should be noted that S. 368 (3) of Criminal Procedure Act, provides to the effect that where the court convicts an offender for an offence which is punishable with a death sentence but it is of the opinion that the person had not attained the age of seventeen years at the time the offence was committed, the sentence of death shall not be pronounced or recorded. This appears to be the basis of the Supreme Court decision in Modupe v. State where the court stated that:

‘If at the time the offence was committed, an accused charged with capital offence has not attained the age of 17 years, it will be wrong for any court not only to sentence him to death, but also to even pronounce or record such sentence.’

Pregnant Women: S. 368 (2) of the Criminal Procedure Act provides that pregnant women cannot be sentenced to death; rather, life imprisonment. See also S. 300(3) of the Criminal Procedure Code which is relevant in the Northern part of Nigeria; the pregnancy here is either at the time of conviction or execution. Furthermore, in some jurisdictions, there is no exemption of pregnant women from capital punishment.
Insanity/Mentally: The provisions of the Nigeria Criminal Code exclude insane offenders from Criminal Liability on the grounds of the negation of their mental guilt. S. 28 The Criminal Code provides:
‘A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is in such a state of mental disease or natural mental infirmity as to deprive him of capacity to control his actions or capacity to know that he ought not to do the act or make the omission…’

However, insanity or unsound mind under the Nigeria law presumes every person to be sane until the reverse is proven by the virtue of S. 27 of the C.C.A 2004 and S. 43 of the P.C.A 2004. See also, the case of The Queen v Bashiru Ayinde (1963).

Women with Children: Nigeria is under-treaty obligations not to execute women with nursing children.

Justification for Capital Offense

1.Sharia:
Sharia, the religious law in Islam, requires capital punishment for certain crimes. For example, the Quran states:

“The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter.” — Qur’an, Sura 5, ayat 3332

Also, Allah’s Messenger gave the punishment of stoning to death to the married adulterer and adulteress when he says:

‘When an unmarried male commits adultery with an unmarried female, they should receive one hundred lashes and banishment for one year. And in case of married male committing adultery with a married female, they shall receive one hundred lashes and be stoned to death.” – Sahih Muslim, 17:4191’

Also, see Sahih Muslim, 17:4194

2.The Bible:
The first divine pronouncement which seems to sanction the death penalty is found in Genesis 9:6 which states:

‘whosoever shall shed man’s blood, his blood shall be shed, for man was made to the image of God.’

Also, the Israelites received from the Lord a code of Legislation wherein the death penalty was prescribed for many offences such as murder see Exodus 21. Also, the book of Leviticus 24:20 says:

‘Breach for breach, eye for eye, tooth for tooth; as he hath caused a blemish in man, so shall it be done to him.’

(obviously, when a person kills, he shall be killed also.)

Numbers 35:16-21 which shows so many instances one can be pronounced death penalty; also Numbers 35:34 says:

“So ye shall not pollute the land wherein ye are: for blood defileth the land: and the land cannot be cleansed of the blood that is shed therein, but by the blood of him that shed it…”

3.Punishment by The Law

Research has shown that majority of Nigerians favour retention of death penalty. Death penalty deters crime, prevents recidivism and that it is an appropriate form of punishment for the crime of murder. In the case of Fabiyi J.C.A, in Akinyemi v. State on the propriety, justification of death sentence where the court concluded by holding:

‘the sentence was well pronounced for the capital offence… it is good law to serve as deterrence in a mundane society where heartless and dangerous citizens abound in plenty’

This judgement found favour in the decision of Edo state government of Nigeria, to execute four criminals on death row in that state. According to Henry Idahagbon, the Attorney General of Edo State, one of the convicts on death row, Richard Igagu who went with his gang to a house to rob. After robbing the man of his possessions, they raped his wife. And after raping the wife, they took a bottle and inserted the bottle into the private part of the wife until she bled to death. This submits that the death penalty was appropriate because “heartless and dangerous people abound in plenty and such people should not be allowed to live and continue with their wickedness. According to Betty Miller, the use of death penalty goes beyond the reduction while some authors have insisted that the death penalty is inhuman and degrading punishment and therefore unconstitutional, the Nigerian courts in a plethora of cases have held otherwise. The court of Appeal in Adeniji v. State held that:

“the death penalty as per section 33(1), 233(2), 243 of the constitution is expressly recognized by the said constitution”

The Supreme Court in Okoro v. State stated that the death penalty and its method of execution is lawful and valid as same is sanctioned by both S. 33(1) and 34(1) (a) of the1999 Constitution. In Kalu v. State, the Supreme Court states the Nigerian position in respect of death penalty as it held that:

“…under S.33(2) of the 1999 constitution, the death penalty can by no stretch of the imagination be said to be proscribed or outlawed …”

Over the years, the practice of capital punishment has been subjected to such major flaws, such as the conviction of the innocent, selective conviction of the poor and, sometimes, black offenders, especially in the U.S.A and the other white dominated countries, as well as the infraction of the rights to life and freedom from inhuman or degrading treatment. Sequel to the foregoing, it is crystal clear that the criminal justice system in Nigeria, which was inherited from the British colonialist’s decades ago, is in dire need of reform. No wonder at Present, 95 countries have totally abolished capital punishment in their jurisdictions

There is no gainsaying the fact that capital punishment has been globally discredited due to so many problems and the demerits which are associated with it. Several militating factors, like infraction of rights to life, and freedom from torture, inhuman or degrading treatment, irreversibility of death, judicial errors, death row phenomenon, barbaric mode of execution, inter alia, have been identified as the albatross of capital punishment. It has been contended that there can hardly be any justification for taking another life for a life in the sense that it amounts to multiplication of sorrows for the society. Let’s go down memory lane, on 17 December 2014, after being found guilty of conspiracy to commit mutiny, 54 Nigerian soldiers were sentenced to death by firing squad where the trial was held secretly by a military tribunal. Tell me, what do you think would have happened to their family, how would they have felt? Absolutely, this will leave nothing but emotional trauma on the part of the families and relatives. You will agree with me that loosing 54 soldiers in a day is a huge loss; obviously, a threat to the security of the country.

CONCLUSION

Capital sentence is certainly the most feared penalty. A capital penalty is more severe than any other penalty, and it could be assumed that it will deter some potential murderers from committing the offence. The merits and demerits of the capital punishment have been adumbrated by individuals, groups and organizations at local, regional and international levels. However, it is essential to note that capital punishment leads to miscarriage of justice through the wrongful execution of an innocent person. Also irreversibility of the death penalty contradicts the idea that criminals should be socialised. Capital punishment is unjust, vindictive and retributive in deterring crimes. Obviously, capital punishment is nothing but a remnant of old system based on vengeance.

Shall we go down the biblical record? Cain, who was the first murderer was not executed but was marked with a special sign and was made a wanderer upon the face if the earth. Also, looking at one of the books written by Viguerie, he said that Christ would oppose to capital punishment if he were on earth. This view is supported by the new testament story about the woman who faced death execution by stoning in John 8:7 (he that is without sin among you, let him cast the first stone)

Let’s leave that aside, what are the works of the health practitioners? Yes! You are absolutely right! To protect lives but the reverse is the case when they practice an act of execution using lethal injection,

Life is sacred, no one has the power to terminate another person’s life either by abortion or execution.

RECOMMENDATION

The federal government of Nigeria should take immediate steps to abolish the death penalty in law and practice.
The judicial should ensure the reference of international human right obligations in their decisions in order to ensure that the application of Nigeria law follows the human right obligation of Nigeria.
Thorough investigations should be made before someone can be seen and concluded to be guilty of an offence.
The government should work on what the habitation centre is meant for not what it ought to be. Moreover, that is why it was renamed the correctional centre.
Wait a minute, frankly, can we call Nigeria prison a correctional centre?

REFERENCES

  1. Kehinde Solomon “Facing The Hangman’s Noose: Any Right Under Nigerian Law?” Available at <http://thelawyerschroncle.com> accessed on 13 November 2020
  2. Osemwengie Ben Ogbemudia “Edo Explains Execution of Criminals On Death Row” The Nation on Sunday Newspaper, June 30, 2013, P.6
  3. Miller B, “What Does The Bible Say About Capital Punishment?” available at <http://christianconite> accessed on November 18 2020.
  4. Bashiru Adewalle ‘17 Capital Punishment In Nigeria Criminal Justice administration’ available at <researchgate.net> accessed on 13 November 2020
  5. Mary Meehan ‘10 Reasons To Oppose The Death Penalty’ November 20, 1982 available at <americamagazine.org> accessed on 19 November 2020.
  6. EO Akingbemi ‘Capital Punishment In Nigeria: A Critical appraisal’ available at <ir.unilag.edu.ng> accessed on 13 November 2020
  7. Nwamaka Iguh ‘The Death Penalty and Women Under the Nigeria Penal System’ July 2011. Available at researchgate.net accessed on 28 November, 2020.
  8. Capital punishment in Nigeria available at <en.m.wikipedia.org accessed> on 18 November  2020
  1. The Criminal Code Act 1960
  2. The Penal Code Act 1960
  3. Constitution of Federal Republic of Nigeria 1999 (as amended)

 

Oluwaleye Adedoyin Grace writes from Faculty of Law, Ahmadu Bello University, Zaria, Kaduna State;

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[email protected] or 08106289069