Constitutionality Of Death Penalty And Right To Life In Nigeria. By Simeon Akala & Victoria Chinonso Amadikwah
In various legal system of the world, the right to life is entrenched or guaranteed because it is sacrosanct, based on the fact that it is considered to be the very essence of human existence. Internationally, this right has gained enormous recognition and wider acceptance, although some have argued it is a fundamental right which cannot be override by whatever means, others don’t give same reply. To further emphasize its importance some International instruments provides for its respectability in the society. However, in some jurisdictions it has limitations placed on it, usually in certain circumstances; like in Nigeria when it bothers on criminal matters. The aim of these writers is to critically examine and bring to the fore some cases and arguments for and against this right vis-a-vis the imposition, retention and abolition of death penalty as punishment for crime.
RIGHT TO LIFE
Right to life by nature falls within the realm of fundamental rights, this goes to show the reason for its sanctity, reverence accorded to, and its domestication under Nigeria 1999 constitution as amended. This was perfectly enunciated in the case of Ransome-Kuti V. A.-G. Fed. (1985) NWLR (Pt.6) 211. Wherein Justice Kayode Eso (as he then was) held that :
“What is the nature of a fundamental right? It is a right which stands above the ordinary laws of the land and which in fact is antecedent to the political society itself. It is a primary condition to a civilised existence and what has been done by our constitution, since independence, starting with the Independence Constitution, that is, the Nigeria (Constitution) Order in Council 1960 up to the present Constitution, that is, the Constitution of the Federal Republic of Nigeria, 1979 (the latter does not in fact apply to this case: it is the 1963 Constitution that applies) is to have these rights enshrined in the Constitution so that the rights could be “immutable” to the extent of the “non-immutability” of the Constitution itself.”
Therefore, the right to life is one that emanates from the grundnorm i.e the font et origo of the land. Hence,
Section 33 (1) of the 1999 Constitution( herein referred to as “CFRN” ) provides that persons living in Nigeria, “…shall have a right to life and no one shall be deprived intentionally of his life…”
Furthermore, the right to life is recognized under international instruments as they enshrines veritable provisions. By virtue of Article 3 of the Universal Declaration of Human Rights 1948 provides that; “…everyone has the right to life…” Also, Article 4 of African Charter On Human And Peoples’ Rights (Ratification And Enforcement) Act, provides that:
“Human beings are inviolable. Every human being shall be entitled to respect for his life and the integrity of his person. No one may be arbitrarily deprived of this right.”
Similary, Article 6 of International Covenant on Civil and Political Rights, provides:
” Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”
To further buttress the importance of right to life and its International preservative significance, the Special Rapporteur of the United Nations Committee on Human Rights A/37/364 para. 22, said thus:
“The right to life is a fundamental right in any society, irrespective of its degree of development or the type of culture which characterizes it, since this right forms part of jus cogens in the international human rights law. The preservation of this right is one of the essential functions of national legislation… established guarantees to ensure the
enjoyment of the right.”
The right to life is undoubtedly intertwine with other rights, so much that a deprivation of this right could have adverse effects on others. Right of education was found to have its root in the right to life. The indian case of Mohimi Jain V. State of Karnataka & Ors (1992) 3 SCR 658, the apex Court found a constitutionally protected right to education in the right to life when it held:
“…the right to life is the compendious expression of all those rights that the Court must enforce because they are
basic to the dignified enjoyment of life. It extends to the full range of conduct that the individual is free to pursue.The right to education flows directly from the right to life…
Death penalty or capital punishment is considered in ancient times as a shield against criminals who poses as dangerous treat in the society.Victor Hugo described death penalty as the quintessential form of State authorized premeditated homicide. Although, alot of civilize societies has been skeptical on the applicability of death penalty in some occasion, just as some abolitionists have advance an argument that death penalty should be abolished. As Prof. William Schabas in The Abolition of Death Penalty in International Law, said:
” The idea of abolition gained momentum over the following decades…From handful of abolitionists states in 1945, the list grew steadily until, by 1993 approximately half the countries in the world had abolished the death penalty defacto or dejure.”
In contrast, others have put forward its retention in the society. However, the International Covenant On Civil and Political Rights, which came into force in 1976 provides that countries where death penalty is practiced should restrict it to the most serious crimes. But, Articles 6 of the above instruments admonishes abolition of capital punishment is an objective to be achieved by States who are parties to the Convenant. In addition, in 1984, the Economic and Social Council of the United Nations (ECOSOC) adopted Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty. In the same vein, The European Convention on Human Rights (E.C.H.R) has abolished death penalty
by its 6th Protocol to the Convention. The American Convention on Human Rights,(A.M.C.H.R) has also in its newest Protocol abolished death penalty just as the United Nations Second Optional Protocol of I.C.C.P.R has now abolished death penalty(Nigeria is not a signatory to this 2nd Optional Protocol of I.C.C.P.R ).
It is worthy to note that under Nigerian legal jurisprudence the right to life has it limitations. Again, Section 33 (1) of the 1999 CFRN provides that persons living in Nigeria, shall have a right to life and no one shall be deprived intentionally of his life unless in execution of the sentence of a court of a criminal office of which he has been found guilty. In addition, Section 33 (2) of the Constitution provide the exceptions to the right to life to include deprivation of life in defence of a person or unlawful violence or defence for property; to effect a lawful arrest or to prevent the escape of a person lawfully detained and for the purpose of suppressing a riot, insurrection or mutiny.
In the English Court of Appeal, case of Airedale NHS Trust v. Bland (1993) AC., at 83., Hoffman L.J. explains that:
“the sanctity of life entails the inviolability by an outsider.Subject to exceptions like self-defence, human life is inviolable, even if the person in question has consented to his
This was lucidly explained in the case of Kalu v State (1998) LPELR-1655 (SC) the apex court held:
“…Under section 30(1) of the Constitution, therefore, the right to life, although fully guaranteed is nevertheless subject to the execution of a death sentence of a court of law in respect of a criminal offence of which one has been found guilty in Nigeria. The qualifying word, save, used in section 30(1) seems to me to be the unmistakable key to the construction of that provision. In my view it is plain that the 1979 Constitution can by no stretch of the imagination be said to have proscribed or outlawed the death penalty. On the contrary, section 30(1) of the Constitution permits it in the clearest possible terms, so long as it is inflicted pursuant to the sentence of a court of law in Nigeria in a criminal offence. In other words, section 30(1) of the Constitution recognizes the death penalty as a form of punishment but only on the condition that it is in execution of the sentence of a court of law in a criminal offence of which an accused person has been found guilty in Nigeria. The plain meaning of this section of the Constitution cannot be derogated from in the absence of any ambiguity whatsoever. It simply guarantees and protects the right to life. But it also recognizes deprivation of life so long as it is pursuant to the execution of the sentence of a court in a criminal offence of which the accused has been found guilty in Nigeria.”Per IGUH,J.S.C (Pp. 41-42, paras. E-G)
In the American case of Gregg V. George 428 U.S. 135, 175–187(1976) the U.S Court held that death penalty is not intrinsically unconstitutional. Similarly, the Supreme Court of Zimbabwe in Catholic Commission for Justice & Peace in Zimbabwe V. Attorney General of Zimbabwe & Or(1993) 4 S.A. 239, unanimously upheld the constitutionality of the death penalty on the ground that the right to life under the Constitution was qualified, also in the Indian case of Bacan Singh V. State of Punjab(1983) 2SCL 583.
For illustrative purpose, some provisions of certain laws in Nigeria impose death penalty as punishment for certain crimes, examples are; Section 319 (1) for murder; section 37 for treason and treasonable felony, section 38 for instigating invasion of Nigeria of the Criminal Code 13 Cap. C 38, L.F.N, 2010; Section 114 (3) (a) of the Armed Forces Act Cap A20 L.F.N 2010; wherein punishment is death
sentence for treason and kindred offences;Robbery and Fire Arms (Special Provisions) Act ap R11, L.F.N 2010 section 1 (2),The Civil War that ended in 1970 resulted in the perpetration of violent crimes particularly armed robbery on the high ways and homes of citizens, thus
the need for provision for severe punishment.
Conclusively it is the writers view that death penalty does not serve any penological value. Hence we align ourselves with the abolitionists view which invariably assumed Nigeria is backward in moving with the civilization of other advance societies, thus it is consider expedient for Nigeria to be progressive in domestication of international instruments, as Uwaifo J.S.C posited in Abacha V. Fawehimi(2000) 6NWLR(Pt.660)228, that:
“…we cannot afford to be immuned from the progressive movements manifesting themselves in international agreements, treaties, resolutions, protocols, and other similar understandings as well as in respectable and respected voices of our learned bethren in the performance of their adjudicating roles in other jurisdiction.”
SIMEON AKALA & VICTORIA CHINONSO AMADIKWAH
Both are final year law students of Ambrose Alli University, Ekpoma, Edo State.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
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