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CHAPTER ONE GENERAL INTRODUCTION
1.1 GENERAL INTRODUCTION
Section 402 (2) of the Administration of Criminal Justice Act 20152 reads as follows; “the Sentence of the court upon is that you be hanged by the neck until you are dead or by lethal injection.” similarly Section 273 of the Criminal Procedure Code and Section 367 of the Criminal Procedure Act3 have provided for the Death Penalty for capital offences.4 The Nigerian Constitution in Section 33 (1) provides,5 “every person has the right to life, and no person shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of criminal offences of which he has been found guilty in Nigeria” by implication the Nigerian Construction do recognizes the application of death penalty and where the offence is proved beyond reasonable doubt as required by the evidence Act, the courts have only two options, either to impose the Death Penalty or life sentence 6 In many State Judiciaries in Nigeria, death sentences passed on convicts over the years have not been carried out, many convicts are still in prisons waiting for the hang man to knock on their cells and if this is the case, what is the essence of passing a sentence that cannot be executed, thus raising the issue of efficacy of maintaining the Death Penalty in our laws? Recently, the application of the Death Penalty in the world has generated a lot of debate, especially at the international level. The proponents and opponents of its application have made the topic very interesting in the sense that up to date, this debate has not been laid to rest.
2 Cap C 40 LFN2015 3 CapC38 Laws of the Federation of Nigeria 2004 4 Section 273 provides: – “when a person is sentenced to death, the sentence shall direct that, he be hanged by the neck till he is dead”. Also, section 376(2) of the Criminal Procedure Act provides: “the sentence of the court upon you, is that you be hanged by the neck until you be dead and may the Lord have mercy upon your soul”. 5 Constitution of the Federal Republic of Nigeria,(1999) 1999 (AS AMENDED IN 2011) Cap C23,LFN (2004) 6 Section 222 & 224 of the Penal Code and Section 367 of the Criminal Code
The debate over the removal of the Death Penalty from the Nigerian Criminal Justice System rages between abolitionists and receptionists. In 2007 and 2008, the United Nations General Assembly adopted Resolution 62/149 and 63/168 calling for moratorium of the use of the Death Penalty. Nigeria as a country is a member in the United Nations, it is duty bound to respect its obligation especially when it signs and ratifies any convention. Nigeria may not wish to be left behind, as such there is a need to consider the application of the Death Penalty from Nigerian perspectives to see whether it is still relevant, effective and serving its purpose or not.
While the international community is moving toward total abolition of the application of the Death Penalty for all kind of offences, Nigerian domestic laws duly recognized the Death Penalty. Thus, in Adeniji vs. State,7 the court has stated that: “the Death Penalty is constitutional.” Similarly, the Court of Appeal has held that: “The Death Penalty as per Sections 33(1), 233(2), 243 of the Constitution is expressly recognized by the Nigerian Constitution”. Also, the Supreme Court in Okoro vs. State8 and Kalu vs. State,9 the Nigerian courts have stated that “the Death Penalty and its method of execution is lawful and valid as same is sanctioned by both Sections 33(1) and 34(1)(a) of the 1999 Constitution.”
Clearly, there is a contradiction between the Nigerian domestic laws and Nigeria‟s International obligation to comply with the above resolution. The Nigerian Constitution is the supreme law of the land, and any law that is inconsistent with its provision is null and void.10 Now how can Nigeria reconcile between its domestic law and its International obligations? On
7 (1998) 14 NWLR 584 8 (2000) 49 NWLR 356 9 (1998) 13 NWLR 537; (1998) 12 SCNJ 1 10 Section 1(3) Constitution of the Federal Republic of Nigeria 1999 as amended in 2011, Cap. C23, LFN (2004)
the issue of death penalty, the world today is divided into two camps; the retentionist11 and abolitionist. every group being aided by reasons to support its side of the debate.
Following the above background, several legal issues are at the forefront on the debate towards the application of Death Penalty in Nigeria. The first issue is, should Nigeria join the band wagon and remove the Death Penalty from its laws? Presently out of 192 countries in this world, 117 countries12 have defacto or dejure abolished the Death Penalty. Secondly, many convicts are languishing in prison waiting for execution. Likewise, as human life is so sacred and important that it must be preserved and protected in order to maintain the existence of mankind. It is thus the duty of the government or authorities to protect and preserve it and that life should not be taken away without due process of the law. In this respect, the Nigerian Constitution provides:
Every person has the right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of court in respect of a criminal offence of which he has been found guilty in Nigeria.13
The above section of the Constitution has in clear and unambiguous terms guaranteed every Nigerian the right to life, such right should not be taken away except by order of a competent court in respect of a criminal offence committed inside Nigeria. On the other hand, the section has made it clear that no one has the right to take someone else life without following due process of law. Thus, a careful analysis of section 33(1) is that, there must be two conditions
11 For example, Egypt on 2nd February 2015, the Egyptian Supreme Court confirmed the death sentence of 183 prisoners. The men were convicted for playing a role in killing police officers in Kaduna in August 2013 during upheaval that followed Army toppling President Muhammad Mursi. Human Rights Watch said: “mass death sentence is fast losing the Egyptian Judiciary whatever reputation for independence it had.” Sara Leah Winston, their spokeswoman said: “instead of weighing the evidence against each person, judges are convicting defendants in mass without regards to fair trial standard,” Punch Newspaper, vol. 2266, dated 2 February 2015. 12 Amnesty International Report on Death Penalty, 2015. 13 Constitution of the Federal Republic of Nigeria,(1999) 1999 (AS AMENDED IN 2011) Cap C23,LFN (2004
before Death Penalty can apply: the judgment must have been passed by a competent court of law in respect of a criminal offence and secondly the offence must have been committed in Nigeria. in view of this, one can comfortably state that Death Penalty is part of Nigerian laws and the objective of this section is to protect the lives of Nigerian citizens. It is thus the duty of the state to provide its citizens with security of life. However, one of the important aspects in the debate on the abolition of Death Penalty in Nigeria is, its implications in undermining the implementation of Sharia in Nigeria technically .The point is that, as far as Nigerian Muslims are concerned, removing the Death Penalty in Nigeria is not practically possible because of the large population of Muslims, the Death Penalty is part of the Islamic Law, in that, a mere legislative Act, by either the Federal or the State House of Assembly cannot abrogate the sharia as contained in the Quran and Sunnah. Therefore, the raging debate is that Death Penalty is part and parcel of Sharia; and by any token, the sharia is part of the body of Nigerian legal system that must be reckoned with especially in matters that affects the religious rights of Muslims in Nigeria.
A lot has been written about the position of Shari‟a on the subject matter, many books, were written on the topic, one of these books is written by Sheikh Imam Abu Zahara 14 he tried to explain the major differences between sharia and the common laws, the shari‟a laws are sets based on the equality of the ruler and the ruled, whereas the common laws are made by the rulers to regulate the activates of their society and also to protect their interest see for example section 174(1) and 21115 gives the Attorney General of the federation or State the power to enter Nolle prosque, i.e. stop any case before any court in Nigeria , Similarly Section 308 of the 14 Aljarima wal Uguba Fil Alfgihul Islamic ( Crimes and Punishment In Islamic Jurisprudence) published by Dar Alfiki Alarabi 1976 at page 10 15 Constitution of the Federal Republic of Nigeria,(1999) capC23 Constitution16 provides immunity for the President, Vice President, Governors and deputy Governors, under the Islamic law, no immunity for anybody both the ruler and the ruled are subjected to the same law, no exception, that basic differences between the two laws.. The major religions17 prescribed death penalty for the act of causing death, that is the law in i.e. (life for life ) that has been the law from time immemorial, for instance the Quran told us the story of the two sons of Adam in which one of them killed his brother out of jealousy18 (Recite to them the truth of the story of the two sons of Adam, behold they each presented a sacrifice (to Allah) it was accepted from one and not from the other, said the latter „be sure I will slay thee”) (The (selfish) soul of the other led him to the murder of his brother; he murdered him and became himself one of the lost ones)
It is worth to note that the Islamic Law has provided the death penalty for just few offences, 1. Intentional killing () 2. Apostasy, ()3. Adulteryin case of married man or woman, 4. robbery 5. (Hiraba)19, 6. Bagy 20 and 7. SodomyUnder the sharia, these offences require strict evidential proof beyond the shadow of doubt and not beyond any reasonable doubt as the case under Nigerian laws.
Besides the Death Penalty, the sharia unlike Nigerian laws has also provided an option of Diyah (blood money) in case the relatives of the deceased are inclined to forgo the right to Qisas (retribution) under which the Death Penalty is applied in respect of murder. The
16 ibid 17 Judaism, Christianity and Islam. 18 Quran 5 v 26 to 32 19 In Arabic, the word means waging war against Allah and his Messenger, or transgressing the laws of Allah (SWT). 20 Insurgency or rebellions
Prophet