This topical issue has overtime allowed for a raging divarication, as to whether the death penalty, being a hoary punitive measure, should have a moratorium put on it, or better still be abolished or retained in Nigeria, especially in the light of the international criminal law and changing global approach to retribution.
It’s no gainsaying that the most fundamental of all fundamental rights is the right to life, as without it, all other rights cannot be enforced.
S 33(1) of the 1999 Constitution of the Federal Republic of Nigeria, provides that:
“EVERY PERSON HAS A RIGHT TO LIFE, SAVE IN EXECUTION OF THE SENTENCE OF A COURT IN RESPECT OF A CRIMINAL OFFENCE OF WHICH HE HAS BEEN FOUND GUILTY.”
From the above provision, it’s palpable that the grundnorm of Nigeria provides a fundament for the death penalty- Kalu v State(1988) 4 NWLR (PT.90) 503. That albeit, everyone has a right to life, such can be deprived of the person, where a death sentence is given by the Court in respect of a crime.
It is noteworthy that appeal against a death sentence, suffices as a stay of execution of same- Bello v AG Oyo StateState(1986) 5 NWLR, 828
Basically in Nigeria, there are 5 major offences that carry a death sentence, namely: murder or culpable homicide punishable with death; treason; treachery; presiding over a trial by ordeal leading to the death of a person; and armed robbery. The aforementioned carry the maximum sentence of death, and not even the plea of allocutus can reduce same – State v John(2013) 12 NWLR(pt.1368) 337. The current accepted methods of execution stemming from the Administration of Criminal Justice Act, 2015, include death by hanging or by lethal injection. But in some jurisdictions, by shooting or stoning.
As posited in the outset of this essay, there is the intense debate about the continuance of the death penalty as a means of punishment around the world. The Holy Bible in Exodus 21:12 even states that “whoever strikes a man so that he dies shall be put to death.”
The Council of Europe, for instance has abolished the death penalty; some states in the United States of America have abolished the death penalty; African countries such as Ivory Coast, Benin Republic, Senegal, Rwanda, Togo, Burundi etc have all abolished the death penalty. It is noteworthy that, even the International Criminal Court does not retain the death penalty as a means of punishing offenders.
The primary purpose of the criminal law is deterrence as opposed to compensation of the victim, as obtainable in Torts; so the question has always been that, has the death penalty in its strong weight deterred people from committing these offences? , bearing in mind, its continued prevalence in our society.
Arguments For the Death Penalty:
The death penalty is reserved for crimes of very heinous nature, hence, the punishment is seen as a just dessert for the offence committed by the offender; it is seen as him meeting with his comeuppance, and ideally, each man should be accordingly punished for offences committed by him. Hence, leaving such offender unexecuted, may pose a threat to the society at large. Every individual has the right to life, but the state also has the right to ensure that the right to life of other citizens is safeguarded and not encroached upon by anyone, hence, reserving the right to take the life of anyone who by his actions constitute a great threat to the society at large.
Additionally, it has been argued that, the death penalty helps to depopulate or decongest our prisons. For a country like Nigeria, that the correctional facilities are overpopulated, and there’s a poor living condition of prisoners.
It is also argued that it is cheaper to execute than to imprison. Prisoners must be taken care of and the state must supply income to this end, as opposed to executing offenders
Furthermore, bearing in mind, the Nigerian experience, where it has been alleged many a time, that some offenders sentenced to prison, end up not serving their jail terms, the death penalty leaves no room for such. It permits a zero chance of escape. As a person sentenced to death, must ultimately be dead and seen as dead
Some have also argued that abolishing the death penalty may allow for increase in the spate of extra judicial killings. Where a person or law enforcement officer kills, knowing all he’d get is a life sentence, with an option of pardon, such may allow for a continuance of these offences
Also, the point of deterrence, it’s argued that, the harshness of the penalty would make anyone refrain from committing any offence attracting death
Arguments Against The Death Penalty:
The irreversibility of the execution is a point of worry, especially for an innocent person who may later be found not guilty. There have been several instances in the past lending credence to this.
A good number of the sentenced persons actually don’t get executed in the course of events, this is because Governors often are always reluctant to sign the execution bonds. Hence, leaving them just serving prison terms without being executed per se, so no death sentence in the reality of things.
Additionally, bearing in mind the delayed execution of those condemned to death, such runs contrary to the right to human dignity of the offender, as often usually allows for unkind and degrading treatment of the offenders by prison officials. In the Indian case of Madhu Mehta v Union of India(1989) 3 SCR 775, a death sentence was reduced to life imprisonment because the convict had sufffered mental torture and agony of being under death sentence for 8 years whilst awaiting execution. Also in the Zimbabwean case of Catholic Commission for Justice and Peace in Zimbabwe v Attorney General SC 73/93 14 Human Rights L. J. 323(1993), the court held that thr delayed execution of prisioners and the degrading condition upon which they are held was unconstitutional. See also the decision in the South African case of State v Makwanyane(1982) 3 All E.R. 469 PC.
From the Nigerian experience, the death penalty has really not deterred the commission of capital offences, there are still cases of capital offences being tried in our courts, which puts a big question as to the retention of the penalty.
There’s also the moral argument, that the state has the moral obligation to protect human life rather than take it.
On a conclusive note, flowing from the dictum of Oputa JSC in Josiah v State1 NWLR (pt 1) 125, that justice is a three way traffic- justice for the victim; the offender; and the society whose moral fabric has been eaten into by the wrong acts of the offender, the debate for or against the death penalty is one to be treated with utmost circumspection. Justice must not only be retributive;it must also be corrective.
Flowing from the above, it has been noticed that the attendant cons of death penalty far outweighs its pros. An eye for an eye may leave the whole world blind as argued by Mahatma Gandhi. For instance, where a spouse murders his or her spouse and same is sentenced to death, what would be the fate of the children of such marriage?, how would they live with the almost unending stigma of the lives of their parents?. These and more are existential questions that persistently shake the base of the justification or retention of the death penalty in Nigeria.
And that the death penalty has really not deterred the commission of crimes in the society, it’s advisable that the administration of criminal justice system of Nigeria, embrace the current acceptable means of retribution other than retention of the death penalty, as it should be done away with in its totality, since the means does not in itself achieve the purpose of criminal law, which is deterrence. And if an instant total abolition may not be possible, a moratorium may be placed on it. Life is sacred, the state has a duty to keep and safeguard it, rather than taking it.