7 Conclusion
50 Reference:
WHAT IS DEATH PANALTY? : Death penalty is the prescribe Punishment for person convicted for capital offences such as murder, armed robbery and other related offences where it is specifically stipulated.
The first established death penalty was far back as the 18th century B.C in the code of king Hammurabi of Babylon, who specified death penalty for 25 different crimes. Death penalty was part of the following codes, Hittite code, Draconian code of Athens (Specified death penalty for all crimes) and Roman
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law of the Twelve Tablets. Forms of death penalty were crucifixion, drowning, beating to death, burning alive and impalement, hanging, beheading, burning at the state etc.
It must be said that Britain influence American’s use of the death penalty far above any other country. The first recorded execution in the new colonies was that of Captain George Kendall in the James town colony of Virginia in 1608, who was executed for being a spy for Spain. Laws in relations to death penalty vary from one colony to the other.
In the world over , the wind of abolition of the death penalty is all over and most developed countries are already moving in the direction of abolition but Nigeria is yet to be a part going by the provision of section 33(1) of the 1999 constitution which autrorizes killing in execution of a sentence of a court, as such death penalty is constitutional in Nigeria.
Going by the Amnesty International report dated 30th June 1995 countries were categorized into Abolitionist and Retentionist Countries, which showed that 55 countries have abolish death penalty for all crimes, while 15 for all except crimes such as wartime crimes, 27 countries cab be regarded as abolitionist defacto; they retain the death penalty in law but have not carried out carried out executions for the past 10 years or more. It can actually be said that the rate of execution had greatly reduced in recent times. Some countries that have abolished death penalty either partially or totally are; Nambia , Mozambique, Gambia, Guinea – Bissau, Paraguay, Cambodia, Nepal, Slovenia, Hungary, Croatia, Romania, the Czech/Slovak republics, Greece, ItLY, Switzerland and New Zealand.
International human rights treaties prohibit death penalty against persons under the age of 18 years at the time of the crime being sentenced to death. For the International Covenant on Civil and Political Rights, the American Convention on Human Right and the UN Convention on the Rights of the child all provided to this effect. There are either express exclusion for persons under 18 years or excluded by implication or inference from provisions of death penalty.
In recent times, countries are now committing themselves to treaties abolishing death penalty; examples of such are the second optional protocol to the international Government on Civil and Political Rights, the sixth protocol to the American Convention on Human Rights to abolish death penalty.
However, death penalty is the prescribe punishment for persons convicted of capital offences such as murder, culpable homicide punishable with death, treason and armed robbery are punishable with the death sentence, See Kalu
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v. the State (1990) 11-12 S.C 14 at p. 49; where it was held that the death penalty is lawful in Nigeria and cannot be regarded as a degrading or an inhuman treatment .
Section 367 of the Criminal procedure Act and 273 of the criminal procedure code specify that death sentence shall be by hanging, in respect of armed robbery convicts, the death sentence shall be by firing squad see section 1(2) (a), (b) of the robbery and fire Arms (special provision
(2) Young Persons section 308(3) CPA 270 & 272 CPA Act 1984. Death penalty is mandatory, therefore the court does not have the discretion to impose any other penalty upon conviction, and again allocates is of no effect once a person is convicted of an offence punishable with death.
A Judge when pronouncing a death sentence is robed in red gown and black cap signifying the seriousness and gravity of the penalty, rather than a provision of law. Section 367(2) CPA provides for the mode of pronouncement;
“The sentence of the court upon you is that you be hanging by the neck until you be dead and may the lord have mercy on your soul”.
However, failure by a judge to adopt the specified method will be deemed as errors see Gano v. The State (1969) NMLR 316. Olowofoyeku v. The State (1984) 5 S.C 192.
The Nigerian laws provide the following exceptions to death penalty;
1. Pregnant women section 368(2) CPA 270 & 300 CPC.
It should however be noted that the Nigerian Constitution provides for prerogative of mercy which occurs where a court pronounces a death sentence on a convict, the court as soon as practicable send to the Minister or Commissioner designated to advise the President or Governor on the exercise of the prerogative of mercy;
2. A certified copy of the record of proceedings at the trials
3. A copy of a certificate to the effect that sentence of death has been pronounced upon the person named in the certificate and
4. A report in writing signed by him containing recommendations and observations (with respect to the convicted person and his trial) that he thinks fit to make. Section 371 CPA & 294 (1) CPC
5. However, where a person has been sentenced to death and has not appealed within the prescribed by law or has not successfully appealed against the conviction or having filed a notice of appeal has failed to prosecute such appeal the minister or commissioner shall
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consider the report in that regard. After which the considered report is forwarded to the body saddled with the responsibility for exercising the prerogative of mercy. Based on the report, the Attorney-General may recommend to the President or Governor that;
(i) The convicted person be pardoned
(ii) The sentence be commuted to life imprisonment;’ or (iii) The sentence is commuted to any specific period.
Otherwise, the Attorney- General may recommended that the sentence be carried out section 371 (e); CPA & 295; CPC
The Federal Advisory council on the prerogative of mercy is the council of State Section 175(2) 1999 Constitution, while the States are empowered to do the same section 212(2) 1999 Constitution, while the States are empowered to do the same section 212(2) 1999 Constitution. See Okeke v. State (2003) 15 NWLR (pt 842)25.
In conclusion, a death sentence shall not be executed unless and until the President, the Governor, the Specified appropriate authority, has confirmed it.