There is no right that is more fundamental than the right to life, it is sacrosanct and constitutes the basis of human existence.
The concept of capital punishment, is a sentence of death passed on a felon who has been tried and convicted of an infraction of prescribed law of state authority. In other words, it is the legal infliction of death by the state on a convicted criminal, for an injurious crime, after due process of law. The termination may take any form such as by hanging, execution by firing squad, crucifixion, stoning, and lethal injection as may be prescribed in the enabling statute.
Over the years, the propriety or not of the death penalty and the need to abolish it has been a subject of intense debate. Those against its retention contend that it is inhumane and its deterrent effect serves no useful purpose in a world moving towards restorative and rehabilitative justice. In line with this argument, countries like Norway, Denmark, South Africa, Togo, Finland, Netherlands, France, and New Zealand amongst others, have abolished the penalty of death. However, Nigeria is one of the countries that does not prohibit its application and still retain the death penalty in their statute books.
The 1999 Constitution of the Federal Republic of Nigeria (CFRN), which is the supreme law of the land, provides for the right to life in section 33[1]. However, this right is not absolute; section 33(1) permits the derogation of the right to life ‘…in execution of the sentence of a court in respect of a criminal offence of which a person been found guilty in Nigeria’. Thus, the application of the death penalty is legal and constitutional in Nigeria. In support of this the Supreme Court in Onuoha Kalu v State (1998)[2] held that the application of the death penalty is constitutional in Nigeria. In justifying the legality of the death penalty in Nigeria, the court held in Akinyemi v State (2003)[3] that: ‘The sentence was well pronounced for the capital offence. It has the semblance of the Law of Moses: ‘an eye to an eye’. It is a good law to serve as a deterrent in a mundane society where heartless and dangerous citizens abound in plenty.’
LAWS PROVIDING FOR CAPITAL PUNISHMENT LAWS OR DEATH SENTENCE IN NIGERIA
There are many legislations in Nigeria on capital punishment, some of these include, the Penal Code (northern states), Federal Provisions Act of 1959 (the Penal Code), and the Criminal Code Act of 1961 for southern Nigeria (the Criminal Code). Here, the death penalty is provided for offences such as murder, treason, felony, and instigating the invasion of the country. Others include armed robbery, culpable homicide, incest, zina, and so called sodomy– the latter three are under the new Sharia Penal Code.
There are also international treaties/laws that provides for capital punishment, such treaties apply to Nigeria to the extent of its ratification and domestication in accordance with to section 12 of the 1999 CFRN. Nigeria has ratified the following treaties, which relate to the application of the death penalty: the Universal Declaration on Human Right (1948), the International Covenant on Civil and Political Rights (1996),the International Covenant on Economic, Social and Cultural Rights (1966), the African Charter on Human and Peoples’ Rights (1981),and the Convention on the Rights of the Child (1989).
Notwithstanding the laws backing capital punishment, certain categories of offenders are exempted from serving a death sentence.
These are pregnant women, by virtue of Section 368 (2) of the Criminal Procedure Act and section 300 (3) of the Criminal Procedure Code; underage or juvenile offenders, by virtue of section 368 (3) of the Criminal Procedure Act; demented persons, by virtue Section 28 of the Criminal Code; and nursing mothers. Where a woman found guilty of a capital offence is pregnant, the sentence of death shall be passed on her but its execution shall be suspended until the baby is delivered and weaned. This is in accord with the African Convention on Human and Peoples’ Rights Protocol on the Rights of Women in Africa which Nigeria is a signatory to.
THE IMPROPRIETY OF CAPITAL PUNISHMENT IN NIGERIA
Capital punishment has been globally discredited due to so many reasons, especially the infringement of the citizen’s rights to life, and freedom from torture, inhumane or degrading treatment. The irreversibility of death, judicial errors, death row phenomenon, and barbaric mode of execution, have also been identified as the albatross of capital punishment.
The central notion of the concept of ‘right’ is entitlement. That is, to say that you have a ‘right’ is to assert that you are entitled to it. The right to life, a fundamental right guaranteed under section 33(1) of the 1999 CFRN, is the fulcrum which animates all other rights and the pivot upon which all other rights attributable to the individual are premised. There is no right that is more fundamental than the right to life, it is sacrosanct and constitutes the basis of human existence. Therefore there is the need to preserve this right by making it indestructible. Though writers and philosophers like J.J Thomson, John Locke and W.D Ross hold the view that there is nothing sacrosanct about the right to life and that whoever kills has forfeited his own right to life, an overwhelming majority of writers, jurists and philosophers, however, hold a contrary views. They contend that human life is sacrosanct and inviolable.
There is no right that is more fundamental than the right to life, it is sacrosanct and constitutes the basis of human existence.
Secondly, the right to freedom from torture, inhumane or degrading treatment, which is one of the offshoots of the revolutions, is the cornerstone to the right to human dignity in Nigeria guaranteed under section 34 of the 1999 CFRN. Inhumane treatment has been described as such treatment that lacks the moral and human qualities of kindness or pity, and is extremely cruel and brutal. It is termed barbarous, uncouth and cruel; falling below moral standard and with no human feeling on the part of the person inflicting the barbarity or cruelty.
Hence, there is no justification for taking another’s life no matter the crime committed. Hugo Adam Bedau, in upholding this states ‘…it follows that even murderers must be treated in the light of the value of their lives, a value not erased by the harm and injustice which their lethal violence has caused the innocent and that supposedly rules out the death penalty.’ In addition, Sane has argued that deliberately killing someone violates the most basic of all human rights (that is, the right to life) and has no place in today’s world. Therefore even a murderer has an indisputable right to life, which has to be respected and protected in the same way the right to life of a non-murderer is respected and protected.
A murderer has an indisputable right to life, which has to be respected and protected in the same way the right to life of a non-murderer is respected and protected.
The proponents of the abolition of the death penalty usually cite cruelty and man’s inhumanity to man as the reason why it should be abolished. Even though the constitution and other laws in Nigeria provides for death penalty, the inhumane modes of executing the death penalty such as physical torture, hanging, electrocution, the gas chamber and firing squad is not and cannot be justified under the constitution. As such, it is immaterial whether the state has the constitutional right to impose death penalty for any offence.
The laid down procedures/pre-conditions preceding the execution of a convicted prisoner in Nigeria and the attitude of governors towards signing the death warrant can also be argued to amount to torture on the person. This is because those condemned to death often suffer acute anguish and trauma physically and mentally before their execution. Whether the prisoner is intimated of the date of execution beforehand or not, the stress they suffers can be great enough to cause psychosis. Even the relatives, families, and friends of convict who have been sentenced to death are usually psychologically and mentally affected by the sight or knowledge that their loved one is about to be killed or had been killed by the state authorities That is to say, the death penalty, when preceded by long confinement and administered bureaucratically, dehumanizes both the agents and recipients of this punishment and amounts to a form of torture that should not be justified in a society moving towards civilization.
In Peter Nemi v Attorney General of Lagos State & Anor (1996), the Court of Appeal held that: ‘A convict on death row is entitled to challenge torture, inhumane or degrading treatment arising from a prolonged delay in executing him.’ In other words, though convicted and sentenced to death, the condemned prisoner is entitled to be treated with dignity and should not be subjected to inhumane and degrading treatment. Lending credence to this view, Uwaifo, J.C.A said: ‘The aspect that a condemned prisoner has no right to life, therefore, is as good as dead and cannot enforce any fundamental rights is quite perturbing. Does it mean that a condemned prisoner can be lawfully starved to death by the prison authorities? Can he be lawfully punished, by a slow and systematic elimination of his limbs one after another, until he is dead? Could his legs be soaked with petrol and set on fire under a pot to boil rice by someone wearing a smiling face while this is going on since he is as good as dead and without fundamental rights? Would any of these amounts to inhumane treatment or torture? Is a condemned prisoner not a person or individual? These are questions which gravely touch not only the heart but which also bring section 34(1) (a) of the constitution into focus even in cases of condemned prisoners.’
Thirdly, the notion that the death penalty would serve as deterrent to potential criminals; that is, reduce crimes to the barest minimum, and serves the concept of retributive justice founded upon the notion that he who harms another is to be inflicted with equal degree of harm is another justification for capital punishment. The reality, however, is that the death penalty, in line with retributive justice, hasn’t really served any useful goal as an instrument of deterrence, neither has it helped in curbing crimes, rather the crime rates is still on the increase exponentially despite the legislation backing it, especially in Nigeria. Today, kidnapping, armed robbery, terrorism, rape and other capital offences are still increasing in greater magnitude, and assuming a daring and fierce dimension by the day. Hence, the idea of deterrence has been defeated as capital punishment hasn’t served that purpose.
In the case of Josiah v. State (1985), the Apex Court held that: ‘Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic: justice for the appellant, accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, whose blood is crying out to heaven for vengeance; and finally, justice for the society at large–the society whose social norms and values had been desecrated and broken by the criminal act complained of.’ Suffice to say, therefore, that the concept of retributive justice is outdated and its obsolescence in the twenty-first century’s global justice system goes without saying that the world today is tilting towards restorative, reformative and rehabilitative justice. Retributive justice is not true justice as it does not remedy the wrong in its actuality but merely does another wrong. This accounts for why many countries are gradually doing away with capital punishments in their administration of the criminal justice system; the emphasis presently is on reformative and rehabilitative justice.[4]
The fact that the death penalty imposes an irrevocable sentence because once an inmate is executed, nothing can be done to make amends if a mistake has been made is another argument against capital punishment. Generally, the availability of evidence, the competence of a defence, and the result of police investigation are some of the variables that determine the judgment of the court in a case. But, in Nigeria, the processes of investigation, trial and conviction are often faulty and biased, leading to an unfavorable judgement, which may include the death penalty, and therefore a competent order of the court may not be competent which may lead or have led to execution of innocent persons. A classic example is the case of Nafiu Bello v Attorney General of Oyo State (1986),[5] where the accused appellant was executed while his appeal was pending. Though the supreme court condemned the action of the administrators and awarded damages to his family, but the deceased is already dead and cannot be brought back to life which is a pointer against death penalty as it is a sentence that determines the finality of the accused life and cannot be reversed or corrected, therefore, the possibility of executing an innocent person requires the abolition of the death penalty.
Another point of concern in this respect is that the court, in deciding cases, sometimes allow extraneous issues not related to the case to influence it. This is to say that the personal idiosyncrasies and biases of the judge may affect his judgment in some cases, as judges are humans, with emotions, perspectives and believes. Edmund Okoro, in Edmund Okoro & Ors v State (2003),[6] maintains that he was sentenced to death not on the strength of evidence before the court but simply because they were accused of threatening the life of the judge during the trial.
Moreso, the death penalty in Nigeria has been used as a political tool to quell oppositions. The death of Ken Saro Wiwa, an environmental rights activist who got on the bad books of the then military government because of his fight for the respect of the environmental rights of the Ogoni people in the Niger Delta, a major oil producing community in Nigeria; and the legislation that prescribes the death sentence for anyone found guilty of hate speech, offer good examples.[7]
CONCLUSION
Though capital punishment is constitutional, it violates a citizen’s rightsto life and the convicted person’s freedom from torture or inhumane treatment. This is based on the fact that human life is sacrosanct and that right to life should be inviolable. While we canvassed the futility and cruelty of capital punishment. It is submitted that the evolution of other sophisticated methods, beyond the lethal injection, would rather result in a placebo, rather than a panacea. The solution, therefore, lies in outright abolition. It is contended that by her foreign policy objectives, Nigeria has undertaken to respect international law and treaty obligations amongst others which has been domesticated, therefore the continued legalization of capital punishment in Nigeria is against the tide in International Law and Practice as over two third of the 192 countries in the world have outlawed it. This writer is, therefore, calling on the government to abolish the death penalty and explore other mode of deterrent punishments like life imprisonment.
[1] (1999) C.F.R.N as amended, Cap.23 L.F.N 2004
[2] (1998) 13 NWLR (Pt 585) p. 551
[3] (2003) 1 NWLR (Pt 800) pg. 1
[4] Udo Jude Ilo, Nigeria Country Report On Death Penalty Application
[5] (1986) 5 NWLR
[6] (2003)LCN/1439(CA)
[7] Supra (n1)
Street Tribe 