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CAPITAL PUNISHMENT IN THE NIGERIAN CRIMINAL LAW

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PROJECT TOPIC :CAPITAL PUNISHMENT IN THE NIGERIAN CRIMINAL LAW

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Keywords:CAPITAL PUNISHMENT IN THE NIGERIAN CRIMINAL LAW

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Abstract

 

In the oldest written records of human history such as the Code of Hammurabi in the ancient Babylon, the Neo-Sumerian Code of Ur-Nammu and Torah, a Jewish Law, capital punishment has been employed as a form of punishment for various degrees of offences. This phenomenon has continued to exist despite modern civilisation, and is being used by several countries around the globe today. In Nigeria, capital punishment is and has remained the integral part of our criminal justice system, used as an arrow head for punishing offenders who commit offences classified as capital offences. However, the issue of capital punishment has continued to generate controversies, heated debates and arguments in Nigeria. The thrust of this research is to examine critically the general concept of capital punishment, an appraisal of various theories, arguments against and for the use of capital punishment, and whether it deters criminals or not; the validity of capital punishment in Nigeria, issues arising from the application of capital punishment, its effects, justifications and implications. Finally, this research makes recommendations and suggestions.

 

CHAPTER ONE GENERAL INTRODUCTION

  • Background of the Study

 

The conception of capital punishment as a form of punishment for wrongdoings considered as heinous crimes, spanned through centuries of human existence. As humans continued to assemble together for common good, nations in the form of ancient republics, monarchies or tribal oligarchies emerged in certain parts of the world. These nations were often united by common linguistic, religious or family ties. Moreover, expansion of these nations often occurred by conquest of neighbouring tribes or nations. Consequently, various classes of royalty, nobility, various commoners and slave emerged. Accordingly, the systems of tribal arbitration were submerged into a more unified system of justice which formalised the relation between the different classes of people rather than tribes, hence, the need for proper organisation of the society with criminal justice system.

The earliest and most famous example is the Code of Hammurabi which set out the different punishments and compensations according to the different class of victims, perpetrators and crimes. Another one is the Torah a Jewish Law, also known as the Pentateuch, the first five books of the Christian Old Testament, which lays down the death penalty for murder, kidnapping, magic, violation of the Sabbath, blasphemy, and a wide range of sexual crimes, although evidence suggests that actual executions were rare.1

A further example comes from Ancient Greece, where the Athenian legal system was first written down by Draco in about 621 BC, death penalty was applied for a particularly wide range of crimes, although Solon later repealed Draco’s code and published new laws, retaining only Draco’s homicide statutes.2

  1. D. Zipes, When Dreams Came True: Classical Fairy Tales and Their Tradition. London: Routledge, 1999, pp. 57–58.
  2. Lindow, Norse Mythology: A Guide to the Gods, Heroes, Rituals, and Beliefs. Oxford: Oxford University Press, 2002, p.252

 

The word ‘‘Draconian’’ as in draconian laws is derives from Draco’s laws.3 It is also notable that the Romans also used death penalty for a wide range of offenses.4

 

        Statement of the Problem

 

In Nigeria, punishment has always existed in various forms as sanctions for breaches of accepted rules of conduct. But the issue of capital punishment has become so controversial in the Nigerian justice sector that each time it comes up, its applicability sparks off a heated debate and arguments between the proponents and opponents of death penalty, with the former calling for it retention and effective application in the criminal justice system and the later advocating its complete abolition. Nonetheless, the best justification for criminal justice system in any society cannot be over emphasized because the human society needs to be preserved by every lawful means necessary. This is why from time immemorial, dangerous animals especially those with deadly pedigree and venoms like lions, snakes and many others were taken out of human population and assemblies.

In term of humans, many questions of the right, fair and just manner of treating or punishing our fellow humans with unsuppressed animalistic tendencies have remained unsolved. It is therefore the opinion of the researcher, that for some humans whose minds are so deranged as to accept the evil ways of life in committing such a crime as grievous, heinous and so barbaric as the taking of another man’s life, without a slightest recourse and respect for its sanctity in the first place, and cause victims and the society great pain and loss; does not, for the sake of proper justice to the victims and their relatives who suffer, by anywhere reasonable and righteous, deserves to keep theirs. And so, capital punishment in our criminal justice system does not deserve abolition but a reform for its effective, quicker and frequent implementation.

  1. Schabas, The Abolition of the Death Penalty in International Law. London: Cambridge University Press, 2002, p.35
  2. Robert, “Greece, a History of Ancient Greece, Draco and Solon Laws”. (23/08/2010). Available at www.history-world.org. Retrieved on 25th August, 2013.

 

Consequently, this research seeks to proffer answers to the following questions:-

 

  1. How did capital punishment originate in Nigeria?

 

  1. Is capital punishment morally justifiable?

 

  1. Is capital punishment constitutional in Nigeria as a way of preventing crime?

 

  1. Does it deter others from committing similar crimes?

 

  1. Can it be abolished?

 

  1. Does Nigeria need capital punishment?

 

  1. What is the attitude of Nigerians toward capital punishment?

 

  1. Are the offences for which the capital punishment is imposed justifiable?

 

  1. Is capital punishment the best form of punishment for the offences classified as state offences?
  2. Should Nigeria abolish capital punishment and adopt life imprisonment    for convicted murderers?

        Significance of the Study 

This research is to provide a conceptual framework on the reason and rationale behind the use of capital punishment in Nigeria. It is to justify the status of capital punishment in the Nigerian criminal justice system. By comparing the different sides of the argument between the retentionists and the abolitionists, it draws up inferences that will appeal to the rational faculty of man as concerns the proper judgement on either the need to abolish the capital punishment or the need to retain and uphold the effective regulation of capital punishment in Nigeria.

        Justification of the Study 

The raging debate in Nigeria on the issues of capital punishment has been strongly campaigned for and centred primarily on one hand, on the belief that the abolition of capital punishment will give rise to a high crime rate while on the other hand; some people perceive

capital punishment as the reason behind the escalation of crime rate in the country. Nevertheless, the uprightness of these contentions has not been scientifically or evidentially proven.

However, it is pertinent to note that some opinion polls conducted in recent times, one of which conducted by Daar Communications, owners of Ray Power FM and African Independent Television (AIT) indicates that, more than sixty percent of Nigerians favour the retention of capital punishment and so the popular view of Nigerians is that capital punishment should be retained.5

The reasons for this can be easily envisioned without difficulty, because there is always the propensity in human beings to avenge death and to repay evil with evil not only to give credence to the popular ancient law from the Code of Hammurabi, an eye for an eye but also to serve as deterrence to others.

In justifying this study, it should be borne in mind that the very destructive and heartless attitude of robbers, ritual killers, kidnappers, terrorists group like the dreaded Boko Haram, who takes delight in perpetuating hideous crimes, destroying innocent lives, including children, pregnant mothers and properties. Some times, innocent girls are raped to death, their body parts dismembered, wives and daughters are raped, tortured to death in front of their fathers or husbands who have been rendered completely immobilized under gun point and forced to watch the horrible scenario, are great sources of worry, capable of tearing into pieces the innermost good conscience of any sane person.  Faced with a situation like this, it is not surprising that people would find death penalty attractive, acceptable, justifiable and most rational above every other form of punishment in order to serve as deterrence to others and proper atonement on the part of the victims, death or alive.

 

  1. I. Udo, “Revisiting Death Penalty Question”, (2007). Available at: http://www.nigerianlawguru.com/articles/criminal%20law%20and%20procedure/REVISITING%20THE% 20DEATH%20PENALTY%20QUESTION.htm, retrieved on 20th May, 2013.

 

This is captured in the opinion of the Supreme Court of the United States of America as follows:-

…on deterrence deed, the decision that capital punishment may be the appropriate sanction in extreme cases is an expression of the community’s belief that certain crimes are themselves so grievous an affront to humanity that the only adequate response may be the penalty of death.6

Also, as it is argued by retributionist and clearly put by Kant:

Who ever has committed murder must die, that is in this case, no judicial substitute or surrogate that can be taken for the satisfaction of justice. There is no likeness or proportion between life, moreover gainful and death.7

Capital punishment is an act of punishment belonging to the civil society, enshrined in the law of the land, which is entrusted with the power of life and death; by legally and judiciously exercising this power, the civil society punish the guilty and protect the innocent.

Indeed, laws of the land are given and sanctioned by the people of whom it governed as seen in the preamble of the Constitution of the Federal Republic of Nigeria 1999, as follows:-

We the people of the Federal Republic of Nigeria, having firmly and solemnly resolved, to live in unity and harmony as one indivisible and indissoluble sovereign nation under God, dedicated to the promotion of inter-African solidarity, world peace, international co-operation and understanding and to provide for a Constitution for the purpose of promoting the good government and welfare of all persons in our country, on the principles of freedom, equality and justice, and for the purpose of consolidating the unity of our people, do hereby make, enact and give to ourselves the following Constitution…8

The said law having been given by the same people cannot be said to be working against the people. After all, the end of the law is the preservation of the society and security

 

  1. “The Supreme Court of the United States of America on Death Penalty”. Available at: http://nigeriaworld.com/feature/publication/eke/020813.html, retrieved on 20th May,
  2. Kant, The Metaphysical Elements of Justice, John Ladd trans. Indianapolis: Boobbs.merrill, 1965, p. 102.
  3. Constitution of the Federal Republic of Nigeria 1999, the

of human life. And so punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence; and the Civil Society use of capital punishment for this purpose cannot be seen as evil as it seems on the retributivist grounds; but as legal penalty.

According to Plato:

No penalty which the law inflicts is designed for evil, but always makes him who suffers either better or not so much worse as he would have been.9

In his belief, the legal penalty is designed for good, in order to make the sufferer or the victim better, have some solace or compensation.

In the case of death penalty for the murderer, it is justified because life should not be lost in vein and to say it profits the victim who had died nothing, is not true because aside from the relatives who suffers, human beings still have right even in death as would be seen in detail in chapter three.

Death penalty is justifiable for a person who intentionally takes another man’s life and would serve as deterrence to others if he dies ingloriously.

According to Plato, he should be deemed incurable and unfit to live among people, because having been born in the same society, raised and trained both naturally and academically to know what is right and wrong for many years, yet has refused to abstain from committing the most horrible and unmentionable crime, should be deemed by the judges to be deadly. In his word Plato pointed out thus:

…but if any citizen be found guilty of any great or unmentionable wrong either in relation to the gods, or his parents, or the state, let the judge deem him to be incurable, remembering that after receiving such an excellent education and training from youth upward, he has not abstained from the greatest of crimes. His punishment shall be death, which to him will be the least of evils, and his example will benefit others, if he perish ingloriously…10

  1. See Law IX 854

Here, Plato takes into account the seriousness of the offence and that the penalty of death is justified on two grounds to wit: – (i) It is the least of evils to the criminal; (ii) it is beneficial to others.

This is dependable on the Socratic theory of good according to which suffering for one’s wickedness or crime is an evil, but one which is a lot better than escaping unpunished and dying is an evil but one which is also far better than either going into exile or being confined to jail for life.11

        Scope of the Study

This study is confined to the general concept of capital punishment, its applicability, controversies, and its constitutional validity in the Nigerian criminal justice system. This research consists of five chapters to wit: – Chapter One is couched as general introduction, followed by Chapter Two entitled the review of related literature, Chapter three embodies the main work expressed in many sub headings and dubbed as the concept of capital punishment. Chapter Four deals with the status of capital punishment in the Nigerian constitution with the heading as the status of capital punishment in the Nigerian constitution.

Chapter Five summarizes and concludes the work. It also makes recommendations and suggestions.

 

 

  1. See Gorgias, 472e, 473al, and 479e

 

        Research Methodology

 

The research method used for data collection in this study is analytical procedure. The main sources include the use of relevant text books, articles and journals, both from the law library and online, internet publications, current and relevant judicial decisions and authorities; relevant quotes from notable authors, jurists and scholars have also been employed in the research.

        Definition of Terms 

Terms that will be frequently used in this research are hereby brought forward and defined for easy comprehension by the readers.

  1. Capital: From the Wikipedia Free Encyclopaedia, the term capital originates from the Latin word capitalis, literally regarding the head, referring to execution by 12

The Black’s Law Dictionary 9th Edition defined the word ‘Capital’ as punishable by execution; involving the death penalty.13

  1. Punishment: The Black’s Law Dictionary 9th Edition, defined punishment as sanction such as a fine, penalty, confinement, or loss of property, right, or privilege assessed against a person who has violated the 14

The Wikipedia Free Encyclopaedia sees Punishment, also known as discipline or penalty, as the authoritative imposition of something undesirable or unpleasant on, or the removal of something desirable or pleasant from, a person, animal, organization or entity in response to behaviour deemed unacceptable by an individual, group or other entity.15

  1. “The meaning of capital punishment”. Available at: wikipedia.org/capital, retrieved on 20th May, 2013.
  2. The Black’s Law Dictionary 9thp.236. 14. Ibid., p.1353.
  3. http://en.wikipedia.org/wiki/Punishment, retrieved on 21st May, 2013

 

  • Crime or Offence: These two words are synonymous and shall be used interchangeably.

Crime as defined by Wikipedia Encyclopaedia is  the  breaking  of  rules  or  laws for which some governing authority (via mechanisms such as  legal  systems) can ultimately prescribe a conviction.16

The Black’s Law Dictionary 9th Edition described crime as an act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding. Likewise, Offence, according to the Black’s Law Dictionary is a violation of the law.17

  1. Capital Offences: these are offences punishable by 18

 

  1. Retentionists: are persons who advocate the retention of something, especially capital punishment
  2. Abolitionists: Are persons who favour the abolition of any law or practice deemed harmful to society. In the context of capital punishment, he is a person who advocates the complete abolition of death penalty for any crime including murder.
  • Murder: the crime of unlawful killing during Queen’s peace with malice aforethought; as where the accused caused death by an unlawful act with the intention to cause death or grievous bodily harm, R. v. Moloney 19

Viewing capital punishment in terms of retribution, abolitionists argue that it  is simply revenge and cannot be condoned. While others who accept retribution as an element of criminal justice nonetheless argue that life without parole is a sufficient substitute; but on the whole, the best conscience of every rational mind intending to uphold justice and good

  1. The Black’s Law Dictionary 9th p.1186.
  2. Osborn’s Concise Law Dictionary 9th P. 70 19. Ibid., p. 258, R. v. Moloney (1985) A.C. 905.

judgment could easily discern that, the retention and implementation of death penalty in the Nigerian criminal justice system is morally justifiable especially when applied in murder  with aggravating elements such as multiple homicide, child murder, torture and mass killing resulting from terrorism, massacre, or genocide. In fact, not applying death penalty in cases such as these is patently unjust. According to Robert Blecker, a New York law professor, punishment must be painful in proportion to the crime. It would be unfair that those who have committed these horrible crimes stay alive, even incarcerated. 20

 

  1. “Wrongful executions”. Mitglied.lycos.de. Available at: www.wikipedia.org/capital punishment, retrieved on, 20th May, 2013.

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