Arguments On The Abolishment Of Death Sentence In Nigeria; A Juxtaposition By Bamidele Jamaldeen Oluwatomi & Ameen Muyideen Akota

Abstract: Death sentence in Nigeria has been a concept that has been enveloped with debate for quite some time. Some Lawyers and writers have consistently maintained that this concept should be retained relying on its benefits such as Recidivism[1], Retribution[2], and Deterrence[3]. On the other hand, some writers have remained adamant calling on the Government to abolish this concept relying on the principles of Fundamental Human Rights and its growing condemnation in the International community. This paper examines and juxtaposes these Arguments looking at its relevance within the context of the Nigerian Society, it further advocates for amendment of the constitution in order to abolish this practice, it ends by giving a recommendation in form of  way forward towards achieving a sane society in Nigeria. KEYWORDS: Death penalty, Retribution, Recidivism, Deterrence, Human Rights INTRODUCTION: Nigerian Criminal Laws as contained in the Criminal and Penal code divides offences into 3 main categories; Simple offences, Misdemeanor and Felony. Simple offences relates to those offences that are punishable with less than 6 months imprisonment, Misdemeanor on the other hand relates to offences that are punishable with more than 6 months but less than 3 years imprisonment while Felony refers to those offences that are punishable with 3 years imprisonment or more up to the punishment of death.[4] Offences that attracts Death penalty in Nigeria ranges from the offence of Murder, Armed Robbery, Treason all under the Criminal Code[5] and the offence of Homicide punishable with death under the Penal code. [6] Others include Military offences like Dereliction of duty, Misconduct in action and Mutiny[7] as well as Adultery, Apostacy, Sodomy and so on[8]. In the year 2009, Kidnapping was made a Capital offence in Abia, Anambra, Imo, Enugu, Ebonyi and Akwa-ibom. The Edo State Government followed suit in 2013 with Lagos State being the latest in making it a capital offence and it carries the Death Penalty. In an instance where an accused has been found guilty of any of these offences especially those contained in the Criminal and Penal Code, the Judge’s power to sentence is restricted. The only option open to the court is to impose death on the offender.[9] Thus, in the words of ABIRU, J.C.A,   “Once a Judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A judge has no jurisdiction to listen to allocutus and no discretion to reduce death penalty to a term of years once the accused person has been found guilty under section 221 of the Penal Code”.[10]   However, this position is not without its own exceptions as there exist mainly 2 exceptions to the imposition of Death on an offender that has been found guilty of any of these offences. First, a death penalty should not be passed on a pregnant woman and also a child below the age of 17 years who has been found guilty of a capital offence,[11]rather such child below 17 years shall be ordered to be detained during the pleasure of the President and such pregnant woman shall be sentenced to life imprisonment after all inquiries have been done by the court as to whether or not she is truly pregnant. This exception has been judicially baptized by the Supreme Court in the case of Modupe V. State[12] where the court categorically stated thus;   “If at the time the offence was committed, an accused charged with the capital offence has not attained the age of 17 years, it would be wrong for any court not only to sentence him to death, but also even to pronounce or record such sentence”.   There were arguments though if the relevant age here is the age when the accused committed the offence or the age when he is about to be convicted, the Supreme Court has however held that the relevant age is the age in which the accused is about to be convicted[13]. There have been growing demands from the International community and some Nigerian lawyers that this punishment, particularly its execution is a violation of fundamental Human Rights enshrined in chapter 4 of the 1999 constitution of Nigeria and as such, it should be abolished as it is unconstitutional while some other lawyers, lecturers and even Nigerian Courts have advocated for its sustenance as the Court of Appeal puts it in the case of Akinyemi V. State[14] per Fabiyi, J.C.A “the sentence was well pronounced for the capital offence. It is a good law to serve as deterrence in a mundane society where heartless and dangerous citizens abound in plenty”. In your sojourn through this paper, we would first be tracing the origin of death sentence, thereafter, we would examine the arguments of those who have supported its abolishment and those who have rejected it, while we would end by supporting the abolishment of Death Sentence in Nigeria, we would strongly disagree that it is a violation of our Fundamental Human Rights as contained in the Constitution of the Federal Republic of Nigeria. ORIGIN OF DEATH SENTENCE The origin of Death sentence in the world dates back to the Eighteenth Century B.C. in the code of King Hammaurabi of Babylon which codified the death penalty for 25 different crimes.[15] Then, Death Sentences were carried out by such means as crucifixion, drowning, beating to death, burning alive, and impalement, but in the Tenth Century A.D., hanging became the usual method of execution in Britain.[16] A glance into the Penal history shows that death Penalty has been a feature of Ancient legal systems.[17] Back then, in the Traditional African Society, death penalty was rarely used except in cases where the offender was deemed a threat to the peace and security of the community and the community felt otherwise unable to cope with the problem.[18] Then, offences such as Murder, Witchcraft, Profaning the gods, and repeated thefts could all give rise to the Death Penalty. However, most traditional societies prefer to employ banishment as an alternative to Death Penalty.[19] Under the Sharia which was applicable in full force in the Pre-colonial Northern region of Nigeria, death penalty was also ascribed to some offences such as Intentional Murder[20], Rebellion and Armed Robbery involving death amongst others[21]. These offences attracts mandatory Death punishment melted out on those who are guilty of such offence and it was being practiced religiously then. In the Bible, the first Divine pronouncement which seems to sanction the Death penalty is found in Genesis, Chapter 9, Verse 6 “whosoever shall shed man’s blood, his blood shall be shed for man was made to the image of God”[22]. Under the Nigeria law now, the introduction of the Criminal and Penal codes by the British both of which were based on the common law principles came with a number of capital crimes, the death penalty were prescribed for a range of criminal offences. The Southern Criminal code prescribed the death penalty for Murder, treachery and treason among others while under the Northern Penal Code, giving false evidence in trial which leads to the execution of an innocent person, abetting the suicide of a minor, a mentally abnormal or a drunken person also attracts death sentence.[23]   ARGUMENTS IN SUPPORT OF DEATH SENTENCE Over the years, various writers and lawyers especially Nigerian Courts have maintained that Death Sentence should be retained in Nigeria. Before even delving into the Arguments of those who have advocated for the sustenance of Death Sentence in Nigeria, it would be apt to discuss whether or not this act of Sentencing offenders to Death is recognized in our legal system. By the provision of section 33(1) of the 1999 Constitution as amended; “Every person has a right to life, and no one shall be deprived intentionally of his life, save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria”“Upon careful perusal of the various foreign authorities to which our attention was drawn by the opinion that death penalty per se amounts to torture, inhumane 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 have similar provisions in their constitution as ours have repeatedly pronounced the Death penalty to be constitutionally valid”[24] Also, the Court in Adeniji V. State[25] held that “the death penalty as per section 33(1), 233(2) and 243 of the Constitution is expressly recognized by the said Constitution”. Also, the Supreme Court stated in the case of Okoro V. State that the death penalty and its method of execution are lawful and valid as same is sanctioned by both sections 33(1) and 34(1)a of the 1999 Constitution”. In the light of this, a writer has argued that the Death penalty has been regarded as a retributive measure. Therefore, a criminal should die for the offence he has committed. Tolerating him to go at no cost is to make him a threat to the society.[26] Dr.  Adeleke, who is an Associate Professor and the Head of Department of Public law at LASU also stated that “if the Abolitionist are basing their reason for abolition on torture, you can use Euthanasia, the person would die before knowing it”.[27] This position to my mind would amount to doing something that is illegal to arrive at something that is legal. It is a common knowledge that Euthanasia in the Nigerian law is a criminal act[28], it is even frowned at in the International community and as such, saying that we should amend our laws to accommodate Euthanasia is something that would be incongruous and would still receive a lot of condemnation in the Nigerian society. Three theories are relied upon by those against the abolition of Death sentence and they are; Deterrence, Retribution and Recidivism. This would be discussed anon; RETRIBUTION: Literarily, Retribution is a punishment inflicted in the spirit of moral outrage or personal vengeance. In the context of this paper, the Retribution arguments maintains that certain offenders must be killed not just to prevent crime but because of the demands of justice[29]. Justice has been defined to be a 3 – way traffic; Justice to the deceased, justice to the accused and justice to the society at large[30]. This argument is targeted towards the society who had witnessed the offence committed. This is because in the eyes of a common man in the Nigerian society, the only way Justice can be melted out towards someone who kills for instance is for the person to also be killed. This Argument to my mind, though convincing to an extent, would promote Reciprocity or what is commonly known as Jungle Justice. If we keep on killing offenders because of the demands of the society, it might metamorphose into a situation where the society itself would no longer wait for the law to take its course before killing a person who is suspected to have committed murder or what have you. The society might want to take solace in the fact that since that is the position of the law in the first place and the reason for this penalty is to satisfy us, then it is okay if we kill the offender ourselves. This might lead to a state of Anarchy where life is brutal, nasty and short. DETERRENCE: This principle is the most common reason for criminal punishment including the Death Penalty, Writers who rely on this principle in supporting Death Penalty argues that it is necessary to kill an offender to dissuade others from committing the same kind of crime. They feel for instance that if Mr. A and Mr. B are both Hired Assassins, once Mr. A is caught and killed according to the provisions of the law, Mr. B would refrain from that act because of the fear of being killed. This principle though commendable is not realistic as this is not the case in the Nigerian society. In other word, the deterrence principle does not work in Nigeria and all over the world, if it does, then we might not necessarily have cases of murder or Armed Robbery again. According to Wole Iyaniwura[31], the common sense arguments of the deterrence theory rests on questionable assumptions. To him, Murders are often committed in moments of passion, when extreme emotions overcome reason, they may also be committed under the inference of alcohol or drugs or in moments of panic, for example when the perpetrator is caught in the act of stealing. In none of these cases can fear of death penalty be expected to deter. A Japanese prison psychiatrist studies 145 convicted Murderers between 1955 and 1957 and he could find none who remembered thinking they might be sentenced to death before committing the crime. Despite their knowledge of the existence of death penalty, the prisoners have been incapable because of their impulsions and their inability to live except in the present, of being exhibited by the thought of capital punishment.[32] This shows that though, the Deterrence theory has a touch of common sense, it is not realistic and has failed woefully in the Nigerian society as well as the International community. RECIDIVISM: Recidivism literarily means the act of committing new offence after a crime committed in the past. Those who rely on this theory postulates that if an offender is killed for committing an offence today, he would definitely be unable to commit the same offence tomorrow. In other words, he would be incapacitated from committing the same offence at a future date. These theories and more reasons are why some Scholars have consistently fought against the Abolishment of the Death penalty. ARGUMENTS OF THE ABOLITIONIST  Despite the ever growing Arguments of those whose stand is that the Death Penalty should be retained in Nigeria, some other Nigerian scholars and writers have strongly advocated for the Abolition of Death Penalty in Nigeria. Basically, one can easily conclude that the basic Argument of the Abolitionist is premised on the fact that it is a violation of the offender’s fundamental human right particularly the right to life and right to dignity of human person. Also, in the International world, most European countries have abolished death penalty relying on these principles of fundamental human rights. Spain abandoned the last vestiges of its death penalty in 1995, stating that: “the death penalty has no place in the general penal system of the advanced and civilized societies….. What more degrading or afflictive punishment can be imagined than to deprive a person of his life..?”[33] In the United State of America, the most important in the line of cases restricting death penalty were the decision of the U.S Supreme Court in the case of Atkins V. Virginia[34], regarding a defendant with mental retardation and their decision in the case of Furman V. Georgia which prompted the suspension or reduction of all the Death Sentence then into Life Imprisonment. Also, in South Africa, Justice Chaskalson of the South African Constitutional court stated in the historic opinion banning the death penalty under the new constitution that : “the rights to life and human dignity are the most important of all human rights……and this must be demonstrated by the state in everything it does, including the way it punishes criminals”[35]. This arguments to my mind is a very good one as we concede that the most important of the rights given to us by God is the right to life, and after that, the next in ranking is the right to the dignity of human persons. We consider these rights as inalienable and as such, it should not be violated whatsoever the circumstance and as such, it is a very good argument in the International community where there exist the United Nation’s Second Optional Protocol to the International Covenant on Civil and Political Rights which aims at abolishing the death penalty[36]. However, Nigeria is not a signatory to this particular Convention and as such, it has no force of law in Nigeria in as much as Nigeria has neither signed this International treaty nor domesticated it in line with Section 12 of the Constitution. Thus, adopting the reasoning of the Learned South African Justice would be futile particularly when the position of the law as regards Death Sentence and Fundamental Human Rights in Nigeria is different. Saying that Death Sentence is a violation of the Right to life of Nigerians is grossly incorrect as it is recognized as a valid exception to the Right to life given to us by our Constitution as pointed out earlier. In Nigeria, however, although, the position of the Constitution is clear on death penalty, it is our submission that this position should be looked into and amended. Femi Falalna, S.A.N, recently wrote a letter to Governor Ambode of Lagos State informing him that the planned execution of offenders that has been sentenced to Death which include the popular Rev. King who is the General overseer of the Christian Praying Assembly is a violation of the Judgement of the Ikeja High Court delivered by Mufutau Olokooba in 2012 where the Learned Judge said “while a person who commits murder may be sentenced to death, it is illegal and unconstitutional to execute such death by hanging or firing squad as it would lead to a violation of his fundamental human rights to freedom from torture guaranteed by the constitution”.  Falana’s  letter has been condemned by J.B Nwachukwu where he stated thus “I am surprised why Femi Falana is relying on a High Court Judgement to declare the execution of death penalties illegal when the Supreme Court has in plethora of cases affirmed that the death penalty prescribed in the Lagos State Criminal Code is consistent with the Constitution of Nigeria……based on the Hierarchy of Courts, one can rightly argue that the Supreme court judgement on this issue is settled law and as such, final and binding on both the Supreme Court itself and the lower Courts as Justice Oputa while considering the powers of the Supreme court said in Adegoke Motors Ltd V. Adesanya, ‘we are not final because we are infallible; rather we are infallible because we are final’. The issue of executing persons on death row has been settled by the highest court of the land, even if it was reached fallibly. The Judgement of the Ikeja High Court, even though it may be infallible, is unfortunately not final. Our legal system is governed by Finality and not fallibility or infallibility” We take solace in the Arguments of J.B. Nwachukwu. Indeed, the decision of the Supreme Court as regards Death Sentence and its execution is final and beyond any Constitutional debate. If at all, there is to be a debate, it should be in form of calling for the amendment of our Constitution to accommodate or pave way for the abolishment of Death Sentence and its execution. WAY FORWARD Having discussed extensively, the basics of the Arguments of those who supports the Death Penalty and those who are against it, it would be our own submission that it is about time this practice came to an end in Nigeria. To start with, there is a common saying in the Nigerian Criminal Justice System that it is better to let go of nine Criminals than to punish one innocent person. This shows how the law seriously frowns at convicting an innocent man. However, the bitter truth that we need to remember even if it is something we can hardly forget is that we are Humans and we are prone to making mistakes. There are Instances where Judgement has been delivered wrongly and in some cases, there are Miscarriages of Justice. For instance, in 1996, one Bodurin Baruwa was acquitted by the Court of Appeal after he had been sentenced to Death for allegedly committing Murder and had spent 16 years imprisonment. Actually, this man only reported finding a dead body near his premises to the police and was wrongly convicted for killing him. The Court of Appeal stated regrettably that the man “would leave the custody amazed at the way the law has been used to work such extreme injustice and hardship on him and his family”. You would agree with me that this is a very sad scenario that should not repeat itself in our legal system but hang on, this man was not killed, he is indeed very lucky. There has been cases where a convict has been killed even before the final determination of his Appeal which was pending in the Court of Appeal. In the Sad but Celebrated case of Nafiu Bello V. The Governor of Oyo State[37], a convict was executed while his Appeal was pending. He had been convicted for Armed Robbery and has filed an Appeal to the Federal Court of Appeal. Shortly before that Appeal was heard, he was executed. His family however sued the Oyo State Government for the wrongful killing of the bread winner of the family and the Supreme Court found his killing to be wrongful and granted a sum of 100,000 naira to the Family as Damages but would that justify the execution of a sentence that could have been reversed by the Court of Appeal? The answer would definitely be in the negative. Let us now go into history. Ken Saro Wiwa, the man that was accused falsely by the Abacha led Military Government of killing some Ogoni Chiefs and behaving in such a way that was against the then Government, he was tried by the Special Military Court, sentenced to death and was hanged for a crime that we all know was not worth it. If and only if there had been nothing like death sentence in our country, probably the gentle writer might just be in his backyard sipping one of those freshly tapped palm wine. There are similar cases like these where the law would have inflicted a lifelong sad memories and sorrow in the family of an innocent man who has been executed for a crime he knows nothing about. In the words of Anwo J.O. and Arowolo C.A., “the implementation of the Death Penalty is irreversible and in the case of an erroneous judgement can lead to the execution of the innocent”. This is not to say that there would not be cases where erroneous judgments would be given, of course that is bound to happen. But in a situation where Death Sentence has been wiped out of our legal system and we are left with probably punishments like Life imprisonment, such erroneous judgements can be rescinded just like what was done in Bodurin’s case. Therefore, we would humbly recommend through this paper that our Constitution should be amended especially Section 33 which seems to be the back bone of Death Sentence in Nigeria and should be replaced with a provision clearly abolishing the practice of Death Sentence in Nigeria. On the other hand, punishments for the crimes that attracts Death Penalty should be transformed into Life imprisonment and such persons should be barred from being given Presidential Pardon as this would cater for those who have based their Argument on Recidivism. With this, we do sincerely hope that sanity would be restored in our Country both among the Governing and the Governed. CONCLUSION Throughout your voyage in this paper, we have been able to trace the origin of Death Sentence right from where and how it started to how it was adopted in Nigeria, we have also discussed the Constitutionality of this practice citing relevant Sections in the Constitution and also relying on relevant cases. We examined the Arguments of those who feel that Death Sentence should be retained in Nigeria as well as those whose opinion is that it should be abolished. While trying to juxtapose these two Arguments, we submitted that it would be in the National Interest if this practice is abolished so as to make sure that innocent persons do not pay dearly with the lives for what they know nothing about. Finally, the writers herein are of the opinion that in as much as our criminal Justice system is up and doing, we would have lesser cases of erroneous judgement and Justice would be served unto those who deserve it. * Bamidele Jamaldeen is a 300 level student of Common Law, University of Ilorin, Ilorin, Kwara State, Nigeria. He has an undiluted interest in virtually all areas of law. He can be contacted via +2348138038358 and bamidelejamaldeen@gmail.com ** Ameen Muyideen is a 300 level Student of Common law, University of Ilorin, Kwara State, Nigeria. He has interests in Private and Property Law as well as Criminal law and can be contacted via +2348137094242 and ameenmuyideen@yahoo.com [1] This has to do with preventing a criminal from repeating the same crime (The Death Penalty – A Negation of the Right to Life. By Wole Iyaniwura) Global Journal of Human Social Science Economics. Volume 14, Issue 4, Version 1.0, Year 2014. [2] This is the act of killing not just to prevent crime but because of the demands of justice. Op cit. [3] This is the act of killing an offender to dissuade others from committing the same kind of crime. Op cit. [4] See section 3 of the Criminal Code Act, Cap C38, LFN, 2004 [5] These offences are contained under sections 37, 315 and 402 of the Criminal Code Act [6] See section 220- 222 of the Penal Code Law, Cap P3, LFN, 2004. [7] These are contained in the Nigerian Armed Forces Decree No. 105 of 1993. [8] These are offences and punishments known to Sharia and applicable in some Northern part of the country. [9] See Doherty O, Criminal Procedure in Nigeria: Law and Practice. Blackstone press Ltd. London(1999) page 317 [10] State V. John (2013) 12 NWLR (Pt. 1368) 337 at 364, paras E-F [11] Izzat Ullah& ors, Mandatory Death Penalty: Sentencing policy and the attitude of courts in Nigeria ABULJ. Vol 24-25, 2006, page 26. See also section 39 and 319 of the Criminal code and Section 376 of the Criminal Procedure Act. [12] (1988) 4 NWLR (Pt 87) 130 [13] See the case of R V. Bangaza (1960) 5 F.S.C 62 [14] (1999) 6 N.W.L.R (Pt. 607) page 449 [15] https://deathpenaltyinfo.org/part-i-history-death-penalty accessed on Tuesday, 22 August 2017 at 1:10pm. [16] Op cit. [17] Professor M.Ikhariale, Death Penalty in Nigeria: A Constirutional Aberration, J. HUM.RTS.L, (1991) [18] Issabella Okagbue, The death penalty from a human right perspective, 1995 CURRENT L. REV. 144 [19] Chinwe Chinemerem Onuoha, The Quality of Justice is strained: The Death penalty in Nigeria. [20] Qur’an Chapter 2, Verse 178 [21] Qur’an Chapter 5, Verse 33 [22] Nzeribe Ejimnekeonye Abangwu and Adekumbi, Death Penalty in Nigeria- To be or not to be: The controversy continues, Arabian Journal of Business and Management Review (OMAN Chapter), Vol. 3, No. 3, October, 2013. [23] Death penalty: Origin, Meaning and Nature of Death Penalty, https://www.nasarity.com/death-penalty-origin-meaning-nature-death-penalty/ [24] Onuoha Kalu V. State (1998) 13 N.W.L.R (Pt. 583) pg. 531 [25] (2002) 2 N.W.L.R (Pt. 645) pg. 345 [26] Thenigerialawyer.com/death-penalty-whether-or-not-a-misdirection-of-justice/ [27] This was during the 6^th Annual Legal Workshop organized by the Nigerian Association of Muslim Law Students, Lagos State University chapter. www.premiumtimesng.com/news/top-news/93561-dons-disagree-on-abolision-of-death-penalty-in-nigeria.html [28] See section 311 of the Criminal Code Act [29] Wole Iyaniwura, The Death Penalty- A Negation of the Right of Life, ibid [30] Oputa J.S.C in the case of Josiah V. State (1985) 1 N.W.L.R (Pt. 1) pg. 125 @ pg. 141. [31] Op cit [32] SadakataKogi “Etude criminolgique et psycho-pathologique de condames a mort ou aux travaux forces a perpertuite” [33] See R, Hood: The Death Penalty: A Worldwide Perspective, Oxford, (2002), page 15 (Spain had abolished the death penalty for ordinary crimes in 1978) [34] 5, 36US 304 [35] Makwanyane & Anor V. The State, 16 HRLJ 154 (Constitutional Court of South Africa 1995) [36] Nigeria is not a signatory to the Charter or covenant and as such, it is not applicable in Nigeria. [37] Tempo Magazine 30 October 1996, vol. 7 No.16 p. 13]]>