ABOLITION OF DEATH PENALTY: AN EXAMINATION OF THE ABOLITIONIST AND RETENTIONIST ARGUMENTS IN NIGERIA.
Death is an inevitable, universal process that eventually occurs in all living organisms[i]. In law, death could be legal or illegal. In every given society there are certain rules and regulations that bind every member of the society. The sole aim of these rules and regulations is to have a society where peace, order, Justice, and Progress reigns. In the words of Thomas Hobbes, it’s to avoid making life nasty, brutish, and short. When a member(s) of the society voluntarily commits a grievous offence like murder he/she is sentenced to death. In a nutshell, this process is known as the “Death Penalty”. The death penalty, this form of punishment is as old as society and has a biblical origin. According to the Holy Scriptures, God affirmed punishment by death when he decreed: “Whoever sheds the blood of man, by man shall his blood be shed; for God made man in his own image”[ii]. In Nigeria, before the inception of the colonial masters, the different tribes had the death penalty enshrined in their customary laws. Customarily, this form of punishment was meted out on individual(s) who had committed grievous offences such as rape, stealing, or murder. The death penalty also was a means of appeasing the gods and cleansing the land.
In light of the foregoing, this work discusses the Meaning and Statutes on the death penalty. It will further address the global view on the death penalty and concludes by reviewing the arguments on the abolition and retention of the death penalty in Nigeria.
MEANING AND STATUTES ON DEATH PENALTY.
Capital punishment, also known as the death penalty, is a government-sanctioned practice whereby a person is put to death by the state as a punishment for a crime[iii]. In a simple and clear term, the death penalty is punishing someone for committing a crime such as murder by killing him or her. Statutorily, one of the laws providing for the death penalty in Nigeria is the Criminal Code. Here death penalty is provided for offences of murder, treason, treasonable felonies, and instigating the invasion of the country amongst others. Another law that provides for capital punishment is the Armed Forces Act. At the national level, the death sentence is provided in the Robbery and Fire Arms (Special Provisions) Act. This law was made by the military government after the civil war in 1970 and provided for the death penalty for participating in an armed robbery in any part of Nigeria. Where a person is convicted and sentenced to death in Nigeria under any of the federal laws, he shall die by hanging or through lethal injection.[iv]
GLOBAL VIEW ON DEATH PENALTY
Globally, international bodies have agitated for the abolition of the death penalty. This has instigated arguments from various countries, scholars, and groups all over the world. Amnesty International recorded at least 657 executions in 20 countries worldwide in 2019. The total — one of the smallest since Amnesty began tracking executions in 1979 — was a 5% decrease from the at least 690 executions recorded in 2018 and was down 60% from the 25-year-high total of 1,634 reported executions in 2015. As in previous years, the execution total does not include the estimated thousands of executions carried out in China, which treats data on the death penalty as a state secret. Excluding China, 86% of all reported executions took place in just four countries — Iran (251), Saudi Arabia (184), Iraq (100+), and Egypt (32+). The 22 executions in the U.S. were the sixth most of any nation, although Vietnam’s and North Korea’s execution totals are not known. Amnesty recorded at least 2,307 death sentences in 56 countries in 2019, down 9% from the 2,531 reported in 2018. However, Amnesty believes the actual number of death sentences was higher, given that the organization did not receive information on death sentences imposed in three countries — Malaysia, Nigeria, and Sri Lanka — that had reported significant numbers of death sentences in previous years. The U.S. ranked 12th in death sentences known to have been imposed. Death sentences imposed in China, Iran, North Korea, and Syria were not known[v]
Scholars and groups in Nigeria have agitated for the abolition of the death penalty from our legal system, their arguments are hinged on the following:
1) The death penalty is inhuman
2) Death penalty has not fulfilled the deterrence theory
3) The Death penalty is irreversible
4) Death penalty can be used as a political tool
DEATH PENALTY IS INHUMAN
Electrocution, hanging and fire squad are some of the processes by which a prisoner is executed. The abolitionists assert that these processes cause severe pain and suffering to the prisoner before he/she dies. Furthermore, scholars state that is against the prisoner’s human right; the right to dignity of the human person which is enshrined in section 34 of the 1999 constitution as amended. Section 34(1) (a) provides as follows; Every individual is entitled to respect for the dignity of his person, and accordingly – no person shall be subject to torture or to inhuman or degrading treatment.[vi]
DEATH PENALTY HAS NOT FULFILLED THE DETERRENCE THEORY
The rationale of having the death penalty in our corpus juris is to deter persons from committing similar offences/ other offences. The death penalty has not served that purpose, rather there has been an overwhelming increase in crime in society.
DEATH PENALTY IS IRREVERSIBLE
When new evidence is discovered proving the prisoner’s innocence, it becomes practically impossible to reverse such a decision because the prisoner would have died for an offence he/she didn’t commit. In the case of Nafiu Bello v. Attorney General of Oyo State (1986) 5 N.W.L.R (Pt. 45)p.828, the accused-appellant was executed while his appeal was pending.
DEATH CAN BE USED AS A POLITICAL TOOL
The government of many countries are not interested in justice, they are rather interested in suppressing and controlling their citizens. In some countries, for example, Iran and Sudan, the death penalty is used to punish political opponents. The military regimes in Nigeria witnessed the use of the death penalty in eliminating government opposition.
The retentionist argues for the retention of the death penalty in our legal system with the following points:
1) ORDAINED BY GOD
2) PURIFICATION OF THE SOCIETY
3) IT IS LEGAL AND CONSTITUTIONAL
ORDAINED BY GOD
Biblically, God proclaimed death as punishment for disobeying/ committing sins. This could be found in various bible verses like; Genesis chapter 9 verse 6, Exodus 21: verses 12 to 17, and Leviticus 24:17. Leviticus 24:17 provides; “He who kills a man shall be put to death”
PURIFICATION OF THE SOCIETY
The death penalty eliminates the incorrigible ones from society. It is a means of keeping sanity in society. Without the death penalty, some criminals would continue to commit crimes. Thus, the death penalty deters prisoners who are in jail from committing more serious offences when they complete their jail term.
IT IS LEGAL AND CONSTITUTIONAL
Section 33(1) 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.[vii]. The above constitutional provision is unambiguous and it clearly affirms that death penalty is legal. In Onuoha Kalu vs The State 12 S.C.N.J. 1, the appellant was charged with the offence of murder and was convicted. Dissatisfied with the verdicts of the lower courts, he appealed to the Supreme Court. At the supreme court, he raised the issue of the constitutionality of the death sentence in Nigeria. According to Iguh JSC, “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 be 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.”
Having carefully assessed the arguments canvassed on both sides, it’s pertinent to note that their positions are not cast in stone and as such, they have various loopholes. The argument canvassed by the abolitionist that the death penalty is inhuman is quite unappealing and inconsiderate as they should have imagined the gravity of the offence committed especially the pain and cruelty experienced by a deceased person in the hands of an armed robber or kidnapper before his or her demise. Even though the death penalty has not totally deterred grievous crimes, it has successfully deterred crimes to a great extent more than any other punishment. Also, every punishment can be used as a political tool, and as such that the argument of the death penalty as a political tool is rendered impotent.
Internationally, Nigeria is seen as swimming against the tide in International Law and Practice, nevertheless, we shall toe the line of the retentionist but with slight modification and recommendation. I humbly recommend that the death penalty should not be expunged from our legal system. Abolishing the death penalty will do more harm than good in society. There would be retaliatory killings if a murderer would only be punished with life imprisonment. Rather, the death penalty should be abolished for all offences in Nigeria except that of murder or culpable homicide. All other offences such as armed robbery, treason, kidnapping, treasonable felonies, and inter alia, should be punished with life imprisonment. Those condemned to death should be promptly killed after appealing their case and a quicker method of killing prisoners on death row should be adopted.
In conclusion, in the words of a Greek philosopher, Heraclitus; “change is the only constant in life”[viii]. At the international level, there has been a clarion called for the abolition of the death penalty. This occasioned division amongst countries, scholars, and groups. In this article, we examined the arguments of those who seek its abolition and others who seek its retention. We went further to make recommendations.
ABOUT THE AUTHOR
Oringo Bamidele Gabriel is a student at the Faculty of Law, University of Calabar. Bamidele is an astute law student who is very sedulous in his academic pursuit. He is a legal researcher, writer, and seasoned scholar. He serves currently as the Director of Research, Roots Associates, a student Chamber in the University of Calabar.
He is also a senior state counsel in The Ministry of Justice, Students’ Union Government, University of Calabar, Calabar. Bamidele has an interest in Entertainment Law, Environmental Law, Criminal Law, Intellectual Property, amongst other areas of law.
Oringo Bamidele Gabriel can be reached via; WhatsApp – +2347064509087; Facebook – Statutory flavour
[ii] Holy Bible, Genesis chapter 9 verse 6
[iv] Benjamin .O. Igwenyi, Chinedu A. Igwe,Nnamdi P. Ben-Igwenyi, ABOLITION OF DEATH PENALTY IN NIGERIA: JURISTIC ISSUES AND SOLUTIONS : Global Journal of Politics and Law Research Vol.7, No.7, pp.53-65, November 2019 Published by ECRTD-UK
[vi] Section 34(1)(A) of the 1999 Constitution as amended
[vii] Section 33(1) of the 1999 Constitution as amended