Undoubtedly, the right of man to life is the most fundamental of all human rights. The Special Rapporteur of the United Nations Commission on Human Right describes this right in a nutshell:
“the right to life is a fundamental right
in any society irrespective to its degree
of development or the type of culture which
characterizes it…The preservation of this
is one of the essential functions of the state
and the numerous provisions of national
legislation establish guarantees to ensure
the enjoyment of the right”
The right to life is a universal right. However, various jurisdictions recognize permissible limitation to this universal right. In Nigeria, such permissible limitation includes the imposition of the death penalty.
:: Death penalty in Nigeria
The death penalty is provided for in section 33(1) of the Nigerian constitution. Specifically, the cited section provides as follows:
“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 one
has been found guilty in Nigeria”
In Nigeria, today, five offences are punishable by death. These include: murder, treason, treachery, directing and controlling or presiding at an unlawful trial by ordeal from which death results, and conviction for armed robbery. The introduction of the sharia criminal law in some states in northern Nigeria widened offences punishable by death. For instance, under sharia law, death penalty can be applied for sexual crimes.
The constitution of the Federal Republic of Nigeria is the supreme law of the land, and any law inconsistent with its provisions is therefore inconsistent. From the above, it follows that the constitutionality of death penalty is not in doubt. In fact, the supreme court of Nigeria upheld the constitutionality of the death sentence in the case of Onuoha Kalu vs The State . In this case, the appellant was charged with the offence of murder. The trial court found him guilty. The appellant was accordingly convicted and sentenced to death.
Aggrieved with this decision, the appellant appealed to the court and his conviction was upheld. Unsatisfied, he subsequently appealed to the Supreme Court. It was at this point that the appellant sought and was granted leave to raise the issue of the constitutionality of the death sentence in Nigeria. The Supreme Court, as usual, invited distinguished lawyers to address it on the issue. After considering submissions by all parties, the Supreme Court came to the conclusion that the death penalty was indeed constitutional. In the words of Iguh (Justice of the Supreme Court).
“Upon a careful perusal of the various foreign
authorities to which our attention was drawn by
the opinion that the death penalty per se amounts
to torture, inhuman and degrading treatment and
therefore intrinsically unconstitutional seems to me
a minority view. Indeed a close study of those
decisions reveals that the foreign jurisdictions that
have similar provisions in their constitution
as ours have repeatedly pronounced the death penalty
to be constitutionally valid.”
There have been worldwide appeals and campaigns aiming to abolish death penalty. Indeed, various international and regional instruments against death penalty are on the increase. Each year, since 1997, the United Nations Commission on Human rights has passed a resolution calling on countries that have not abolished the death penalty to establish a moratorium on executions.
Although the death penalty still remains constitutionally valid in Nigeria, there has been a national debate on the death penalty issue. While many argue for its retention, others argue for its abolition. I shall now seek an evaluation of these arguments.
:: Arguments In Favour Of The Death Penalty
The death penalty has been regarded as a retributive measure. Accordingly, the criminal should die for the crime he has committed. Allowing him to go free is to make him a threat to others. Just as the individual has the right to safeguard as well as take his life whenever he pleases, the state has the right and duty to take the life of a citizen in order to increase its welfare. This argument hinges on the ethical principle that evil deserves castigation and wrong doing deserves reparation by adequate deprivation and punishment for the wrong doer.
It is also argued that the death penalty acts as a deterrent to future crimes. This is known as the deterrence theory. Thus, the death penalty would be a deterrent or preventive act for capital offences.
Again, it has been argued that if the death penalty is abolished, it may lead to an increase in the number of extra judicial killings by the police and survivors of violent crimes. Indeed, the knowledge that a wanton murderer, for example, would get only a life sentence with the possibility of state pardon may compel an overzealous police officer or the victim of such an offence to seek revenge outside the law.
For lastl, there is the argument that the Nigerian state is not yet ripe for the abolition of the death penalty considering the poor state administration and present facilities of prisons in the country.
:: Arguments Against The Retention Of Death Penalty In Nigeria
On the other side, a side which I reckon, there is the arguments that the death penalty has proven over the years to be ineffective in deterring criminals in Nigeria. It has been attractively argued that the Nigerian police and judicial system should be blamed for the increased crime rate in Nigeria. Indeed, the Nigerian police force is scarcely equipped to deal with the high incidence of crimes across Nigeria. Ours is a police force that would arrest a whole neighbourhood in trying to solve the theft of a car. Sadly, the Nigerian police force is still far from great advantages of scientific innovations in the world of crime prevention, investigation and control. In the same vein, the plight of our judicial officers is to say at least heartbreaking. The years of neglect by successive military regimes and the seeming inability of government to improve allocations to the justice sector has left the justice ministries in a poor state of affairs.
It has also been argued that from the fact that human nature is fallible it's inevitable that errors can be committed by the judiciary in convicting an accused. Because of the irrevocability of the result in the case of judicial error, abolition is the only way to ensure that such mistakes do not occur. In this regard, the case of Boudunrin Barinwa readily comes to mind. He was acquitted by the court of appeal after a total of 16 years in prison. He had been sentenced to death by a high court for murder after he had reported finding a dead body near his premises.
No doubt, a morally decadent society like Nigeria can only breed decadent people. A society which parades an army of unemployed youths, where government officials at every level enrich themselves while in office at the expenses of the electorate, where social infrastructure and amenities are lacking is a doomed society. These conditions breed criminal activities. This therefore suggests that there is a stronger link between taking the social and economic needs of citizens seriously and a low crime rate than there is between death penalty and a low crime rate.
:: Conclusion
Many countries in the world are gradually abolishing the death penalty or at least observing a moratorium on it. Nigeria should join the trend by expunging without equivocation the death sentence from its laws. It is my contention that if the Nigerian government lives up to its responsibilities of providing basic amenities and creating jobs opportunities, crime rate in Nigeria would drop considerably. As stated above, there is a stronger link between taking the social and economic needs of citizens seriously and a low crime rate than there is between death penalty and low crime rate.
It has been observed that the application of the death penalty itself is a failure of justice and is usually accompanied and compounded by a host of systemic breakdown including unfair trials which can lead to the execution of innocent, mentally ill or child offenders. Therefore, the time to act is now.
Chinedum Umeche
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