The Constitutionality Of Death Penalty: Need To Amend The Law

By Afe Babalola

The death penalty is as old as mankind itself. For thousands of years, it has been applied, as confirmed by the major religious texts, as the ultimate penalty or punishment for crimes as varied as adultery, stealing, murder and treason. Historically and politically, the death penalty and its implementation have helped to shape many events of great significance to the development of mankind.

The story of the French Revolution cannot be told without mentioning Guillotine, which became synonymous with the reign of terror introduced by the revolutionaries. In the last century, the hanging after the end of World War Two of major war criminals in Nuremberg, Germany, marked a major turning point in the manner in which war crimes were investigated, prosecuted and punished.

In Africa, the death penalty, prior to the advent of colonial rule, was common to virtually all native societies existing across the continent. In several societies, it was applied along with banishment to signify the society’s disapproval of certain behaviour or conduct. The great Zulu King, Shaka Zulu, is recorded as having applied the penalty for mostly political reasons. In Nigeria, the death penalty was formally introduced into the statute books upon the enactment of the Criminal Code in southern Nigeria and the Penal Code in northern Nigeria. All states in Nigeria have since domesticated the said codes in their laws, such that the extant criminal enactment in most states is to be found in the statutes of the said states.

Quite naturally, the debate as to the appropriateness or legality of the death penalty has been on for as long as it has been adopted as a means of criminal punishment. This debate resurfaced in Nigeria following comments credited to then President, Dr. Goodluck Jonathan, admonishing governors who, by law, are required to sign execution warrants before sentences of death are carried out, to live up to their responsibilities.

Some weeks after this, the government of Edo State announced the execution of some convicts who had been sentenced to death for various crimes and who had exhausted the appeal process put in place by law. The comments of President Jonathan and the executions that followed attracted criticism and praise from diverse quarters. While some commended the President and the then Governor of Edo State for living up to their oaths of office, others utilized the opportunity to address what has been termed the abuses to which the death penalty has been subjected worldwide.

Death penalty is constitutional in Nigeria

I must state without mincing words that the death penalty is legal in Nigeria, as the criminal laws of virtually all the states provide the death penalty for certain offenses, such as murder, as it is known in the Southern states and culpable homicide, as it is described in the Northern states. Furthermore, Section 30(1) of the Constitution of the Federal Republic of Nigeria, which guarantees to every individual the right to life, makes the right subject to the execution of the sentence of a court recognised by law. The Section provides that:

“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”.

Indeed, the Supreme Court of Nigeria in Kalu v. State (1998), 13 NWLR Pt 583–531, upheld the legality of the death penalty. In the said case, the Court was asked to consider whether the death penalty was not a violation of the rights of the individual to life and protection from cruel and inhuman treatment as guaranteed by the Constitution. The Court, in a judgement delivered by the full complement of the Court, held as follows:

“The position of Nigeria is very clear. The death sentence is a reality. It is provided for by our criminal laws, including Section 319, Subsection 1, of the Criminal Code of Lagos State. Our Constitution also recognises the death sentence; see, in particular, Sections 31(1), 213(1)(d) and 220(1)(2) thereof. Therefore, the sentence of death in itself cannot be degrading and inhuman, as envisaged by Section 31(1)(a) of the Constitution. The Constitution is not intended to approbate and reprobate.”.

The most common argument for the continued retention of the penalty is that it deters those who otherwise would have engaged in criminal activity. In response, critics have been quick to point to the ever-rising crime wave as a sign that the death penalty does not deter anyone. The argument, particularly in Nigeria, is that the death penalty has not succeeded in stopping the menace of armed robbers and that, if anything, the certainty of death, if arrested, tried and convicted, often makes armed robbers more deadly and desperate in the execution of robbery operations.

In England, in the early part of the last century, the death penalty was applicable to most crimes, including stealing. Yet crime was on the increase. This led many, as is the case now in Nigeria, to question the effect of the death penalty as a real deterrence factor. There is also the argument that some incidents of murder, particularly in the case of non-career criminals, are not premeditated and often occur as a result of light or minor scuffle between friends, couples, neighbours or other persons with close affinity. Therefore, it is considered that the death penalty could be seen as a means of deterring someone from committing a crime which is not premeditated.

However, the fact that the number of those who are so deterred by the fear of the penalty is not known or cannot be easily ascertained does not, in my estimation, detract from the efficacy of the punishment as a real deterrence factor. Surely, a person otherwise given to criminal inclination might well be persuaded to drop his plans when he considers the real risk of losing his life against whatever gain he would achieve from his undertaking.

To be continued

Source: @thenigerialawyer