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CHAPTER TWO LITERATURE REVIEW 2.1 INTRODUCTION
Capital punishment is a global issue that has generated so much controversy over the years. Different groups and persons have considered the subject from different perspectives. The attitudes of nations vary from one to the other; and this is shown in the fact that crimes that attract capital punishment in the retentionist countries differ from jurisdiction to jurisdiction. This position is buttressed by the fact that, in some countries, the list is short; while in other countries, the list is long. There is, consequently, no universal yardstick to classify which crime will attract capital punishment, and which one will not.1
The protagonists of capital punishment are of the view that certain needs of the society are best met by the execution of the criminal. They assume that capital punishment attunes with proportionality in relation to heinous offences. Their beliefs might have been premised on the utilitarian or hedonistic principle of felicitic calculus in the promotion of common will and the greatest happiness of the highest
number.2 However, as fascinating as the argument appears to be, it
is doubtful if capital punishment can be justified in the violation of fundamental human rights.
1 Although, there is an international prescription that the punishment should be imposed by the retentionist countries, (if at all) only for most serious crimes. See Article 6(2) of the International Convention on Civil and Political Rights (Hereinafter referred to as ICCPR).
2 See Iyaniwura, W., “The Death Penalty: A Negation of the Right to Life?” Ado
Readings in Law (1998), Faculty of Law, University of Ado Ekiti, Nigeria. p.68.
Although Capital punishment has been in use before the emergence of Jeremy Bentham.
19
The merits and demerits of capital punishment have been adumbrated by individual groups and organizations at local, regional and international levels. Prominent amongst the groups is the Amnesty International that has been monitoring and compiling records of countries that have abolished capital punishment in law, and practice and countries that still retain it or re-introduce it in their laws.
Several militating factors, like infraction of the rights to life and freedom from inhuman and degrading treatment, irreversibility of death, judicial errors, death row phenomenon, inter alia, have been identified as the albatross of capital punishment. Hence, there is a concerted global call for its universal abolition.
Various authors, both Nigerian and foreign, have proffered different views on the subject-matter of capital punishment. The pioneer indigenous work on the topic was carried out by Adeyemi in 19893
which is an empirical appraisal of the efficacy or otherwise of Capital Punishment in Nigeria. Other prominent local authors reviewed in the present work,who have contributed immensely to the discourse
3 Adeyemi, A.A., “Death Penalty in Nigeria: Criminological Perspectives” (1989/1991)
20
include Badaiki4, Chukkol5, Ibidapo-Obe6, Ijalaye7, Ikhariale8,
Iyaniwura9 and Okagbue,10 amongst others.
At the international level, this work reviews extensively the works of authors like Ancel11, Bassiouni12, Bedau13, Devenish14, Garland15, Hodgkinson16, and Schabas17, inter alia. The most recent and
indispensable work on capital punishment is the work of Hood and Hoyle18 which was published in 2008. This researcher observes that
there is paucity of literature on the empirical appraisal of the efficacy of capital punishment, especially in Nigeria. The, researcher,
4 Badaiki, A.D., “Singing Nunc Dimitis to Death Penalty” (2004). Benin Journal of
Public Law Vol.2 No.1. p.2.
5 Chukkol, K.S., “Revisiting the Death Penalty in Nigeria”. Being the text of a paper delivered at a One-Day Round-Table on Revisiting the Death Penalt y in Nigeria. Organised by the Nigerian Institute of Advanced Legal Studies (NIALS) at her Lagos Campus on 10th August, 2010.
6 Ibidapo-Obe, A., “The Death Penalty and the African Tradition: Lessons for Modernity”.
Paper Presented at the National Dialogue on Death Penalty in Nigeria. Organised by the Federal Ministry of Justice in 2003.
7 Ijalaye, D.A., “Capital Punishment: Quo Vadis Nigeria?” (1995) in Law, Justice and
the Nigerian Society. Essays in Honour of Hon. Justice Mohammed Bello.p.26
8 Ikhariale, M., “Death Penalty in Nigeria: A Constitutional Aberration” (1992) JHRLP Vol.2, Nos. 1&2. p.17.
9 Iyaniwura, W., “The Death Penalty: A Negation of Right to Life?” (1998) Ado
Readings in Law, Faculty of Law, University of Ado Ekiti Nigeria.
1 0 Okagbue, I.E., “The Death Penalty as an Effective Deterrent to Drug Abuse and Drug Trafficking: Myth or Reality” (1991) NIALS Lagos Nigeria. JHRLP Vol.2, Nos. 1&2. p.6
1 1 Ancel, A.,”The Problem of the Death Penalty” in Sellin, T (ed.) Capital Punishment (New York: Harper & Row Publishers 1967).
1 2 Bassiouni, C., “Death as a Penalty in Shariah”, International Commission of Jurist (2000) The Death Penalty: Condemned (Switzerland: I. C. J.).
1 3 Bedau, H. A., “Abolishing the Death Penalty Even for the Worst Murderers”, in Sarat, A., (ed.) (1999), The Killing State: Capital Punishment in Law, Politics and
Culture. (New York: Oxford University Press).
1 4 Devenish, G., The Application of the Death Penalty in South Africa: Its Historical
and Jurisprudential Evolution and Background and its Relationship with Constitutional and Political Reform (Pietermaritzburg: University of Natal Press
1990).
1 5 Garland, R., “Capital Punishment” (1996) 7, South African Human Rights Year Book
1.
1 6 Hodgkinson, P. & Rutherford, A., Capital Punishment: Global Issues and Prospects. (Winchester, Waterside Press 1996). p.169
1 7 Schabas, W., The Death Penalty as Cruel Treatment and Torture (Boston: North- Eastern University Press, 1946).
1 8 Hood, R., & Hoyle, C., The Death Penalty: A Worldwide Perspective (London: Oxford University Press, 2008).
21
therefore, seeks to bridge the existing gap from 1989 when the only detailed work was carried out on the subject in Nigeria till date.
This chapter provides a literature review on the evolution and decline of capital punishment, nature and scope, administration of capital Punishment, together with the philosophical and jurisprudential polemics of the disposition measure.
2.2 EVOLUTION AND DECLINE OF CAPITAL PUNISHMENT
Schabas was saying the obvious when he posited that capital punishment has been with mankind since antiquity.19 Chenwi20 also
stated that capital punishment dates back to 18th century B.C as part of the Code of King Hammurabi of Babylon21, the Hittite code of the
14th century B.C, the Draconian Code of Athens of the 7th Century
B.C, and the Roman Law of the Twelve Tablet of the 5th Century B.C.
In assessing the difficulty of discovering the precise advent of capital punishment, Olatunbosun22 articulated that anthropologists once claimed that the drawings of Volladolic by pre-historic cave dwellers showed an execution. The origin of capital punishment is also sometimes traced to the religious books of the Bible23 and Qur’an24,
in which with respect to punishment for murder, it is provided that
whoever sheds a man‟s blood, by man shall his blood be shed: for in the image of God made he man. Accordingly, the Mosaic Law
1 9 Schabas, W., The Abolition of the Death Penalty in International Law. (Cambridge; Cambridge University Press, 2002) p.363.
2 0 Chenwi, L., Towards the Abolition of the Death Penalty in Africa. A Human Rights
Perspective (Pretoria: Pulp, 2007) p.17.
2 1 The Death Penalty was codified for 25 crimes. Capital punishment http://www.heraldez.com.cp.htm (accessed 22 March, 2010)
2 2 Olatunbosun, I.A., A Critical Analysis of Death Penalty in Nigeria, (Unpublished Ph.D Thesis, submitted to the Faculty of Law, Obafemi Awolowo University, Ile -Ife, Nigeria in 2007) p.14.
2 3 Holy Bible KJV, Genesis 9:6, Exodus 21:12&14. 2 4 Qur’an 5:36.
22
provided that he that strikes a man, so that he dies, shall surely be
put to death.25
Nigeria‟s present law on capital punishment is, however, traceable to the development of our criminal justice system, which is usually associated with the English Common Law tradition. It is a tradition in which the State plays a dominant role by its exclusive involvement in, and control of, criminal justice. Initially, in England, the powers were vested in the King. About the time of the Norman Conquest of 1066, there developed Pleas of the Crown.26 These were essentially wrongs
against the person of the King, his office and dignity, as against the wrongs to private individuals. In addition to seizure of offender‟s property, outlawing or banishing him from the realm,capital punishment was another means through which regal vengeance was exercised against the offender by the King. Hence, capital punishment and confiscation of the offender‟s property were prescribed for the offence of treason and other felonies which the King later developed.
There was also the evolution of a notion of the King‟s peace between the 14th and 18th Centuries. It was a device through which the king
extended protection to the subjects in return for their keeping the
peace. Correspondingly, a breach of the peace would subject the
offenders to the penalties prescribed. The scope of his peace and the
2 5 Badaiki, A.D., “Singing Nunc Dimitis to Death Penalty”. (Op.cit), note 2, ante. See also the Holy Bible in Exodus 21:12.
2 6 Apart from the Pleas of the Crown, there were other three approaches to criminal law administration at the time in question. These were outlawing blood feud (which continued till 14th Century), and the tariffs of the wer, bot, and wite, which were forms of graduated punishments of compensation, life and limb. Such offences were regarded as botleas offences. This was later developed into a form of graduated compensation. The concept of retribution, in the form of regulated vengeance, originated from the concept of graduated compensation. The most serious of the botleas offences were treason, cowardice in battle, and sins against the Church, which then attracted the punishment of death, forfeiture of property and maiming.
23
felonies were extended; and thus provided the King with considerable wealth and the means of eliminating trouble-makers from the realm.27
As a result of the above development, there were 200 (two hundred) capital offences in England by 1818. During the 36 (thirty-six) years reign of Henry VIII, 72,000 (seventy-two thousand) criminals were executed for theft and robbery offences.28 On the eve of Nigeria‟s Independence, death penalty was very much a component of the British Criminal Justice, and was consequently of English Common Law of Crime, which was also part of Nigeria‟s received English Law.29
The earliest methods of execution of death sentences were crucifixion, drowning, beating to death, burning to death and impalement. Later, in the Tenth Century A.D, hanging became the usual method of execution in Britain; and in the Sixteenth Century, methods of execution were boiling, burning at stake, beheading,
drowning and quartering.30 During the Eighteenth Century, methods of execution included the wheel, the guillotine and the garrotte. Others include headman‟s axe and later, electrocution, gas chamber,
firing squad and lethal injection.31
2 7 Holdsworth, W., History of English Law. (London: Sweet & Maxwell, 1976) Vols III, XI and XV.
2 8 Radzinowicz, I A., History of English Criminal Law, (London: Stevens, 1948) Vol 1. pp.3-4 and 39.
2 9 The English Common Law of Crime was transplanted through the introduction of English Common law in 1863 in the Colony of Lagos. In 1904, the Lugard Administration in Northern Nigeria introduced, by Proclamation, a Criminal Code, which was made applicable in the whole Country after the amalgamation of the South and North in 1914. See Akinbiyi, S., Crimes, Defences & Sentences in
Nigeria.(Lagos: Streame Communications, 2006), p.31.
3 0 See Capital Cases: History of the Death Penalty, http;//www.georgetown.edu/users/ 99938/capital.htm (accessed 22 March 2010) 3 1 Hood, R. and Hoyle, C., The Death Penalty, A Worldwide Perspective, 4th ed.
(London: Oxford University Press, 2008), p.56. See also Bamgbose, O., “Towards the Global Abolition of the Death Penalty: The Criminal Law in the United States and Nigeria”. Being an unpublished paper presented at the National Dialogue on Death Penalty in Nigeria. Organized by the Federal Ministry of Justice, Abuja on the 13th November, 2003, p.5.
24
In England, with her acclaimed civilization and sophistication, there were 220 capital crimes at the beginning of the 19th century for a
variety of offences, such as impersonating a Chelsea Prison chief, and damaging the London Bridge.32 However, by 1861, the number of
capital offences had been reduced to four by virtue of the Criminal
Law Consolidation Act of that year. These were high treason, murder, piracy and arson in Royal Dockyard.
In the United States of America, the use of capital punishment has undergone numerous changes and reforms in the last two centuries.33 Some books convey report that children were routinely
hanged for minor offences, such as theft during the 17th and 18th
Centuries. In Richard‟s Book, titled Kings Lynn published in 1907, an account of possibly the youngest children executed in Britain was given as Michael Hammon and his Sister, Ann, whose ages were given as 7 and 11 respectively. Their hangman was reported to have died within a forthnight of the execution; and that was seen as an attraction of the wrath of God. Hence, the death of their hangman was construed as a proximate revenge for the infliction of the most barbaric and ruthless administration of death sentence in the history of mankind.
In the last three decades, the issue of capital punishment has been very topical in the United States. In 1972, the U.S Supreme Court decided in Furman v. Georgia34 that the death penalty was unconstitutional because it was a form of cruel and unusual
3 2 See Judicial Hanging-Timeline of Capital Punishment in Britain at
http://essential.org /dpic/deter.html. (Accessed 20 November, 2010). Perhaps, the display of callousness and insensitivity became manifest in Britain whe n a child of 13 years was hanged in Tyburn, England for stealing a spoon.
3 3 Banner, S., The Death Penalty: An American History (Harvard University Press, 2002), p.38.
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punishment. However, this decision was ephemeral as the U.S Supreme Court ruled subsequently in 1976 in the case of Gregg v.
Georgia35 that capital punishment did not violate any part of the Constitution.
The State of New York is a state which has practised capital punishment since its colonial era. However, the State abolished capital punishment in 1965, though, it has been re-introduced. Indeed, restoring capital punishment in the United States has been said to be the will of the people, yet many voices are raised against it.36
In ancient Persia, condemned prisoners were often eaten alive by
insects and vermins. Common execution methods during the Middle
Ages included mutilation, amputation, impaling, flaying, crucifixion,
boiling in oil, breaking on the rack and burning at stake. Trivial
offences were also callously capitalized. Under the Code of
Hammurabi, selling beer illegally attracted a death penalty. The
ancient Hebrews also inflicted death on anyone found guilty of
cursing his mother or father or breaking the Sabbath. The Persians
also executed anyone who mistakenly sat on the King‟s throne.37
In the African traditional criminal justice system, including Nigeria, death penalty was rarely used. Its use was restricted to circumstances in which the society hardly had any rational solution to a particular prevalent crime. According to Adeyemi, instances of the death penalty in African societies included repetitive commission of
highly socially disruptive acts by means of witchcraft and cases of habitual and incorrigible offenders. He notes that the society had
3 5 428 U.S, 135, 176-187(1976).
3 6 Davis, D.B., “Movement to Abolish Capital Punishment in America”. (1957).
American Historical Review. p.23.
26
preferred banishment of the offender as an alternative to capital punishment.38 Aja,39aligning with Adeyemi‟s position, also stated that in the Igbo society, in the case of wilful murder, the murderer could
be sent to exile. Upon his return after a stipulated period, after
having performed the stipulated sacrifices and having made prescribed restitutions, he would be integrated into the community. The penalty of death was also used in pre-colonial Uganda40, Nigeria41 and Sierra Leone.42 Chenwi, also contends that Capital
punishment has arguably been used since pre-colonial times in some African societies.43 According to Elias, the penalty for sorcery or
witchcraft, wilful murder, treason and certain types of political offences was death by shooting, spearing, hanging, drowning or the impalement of the convicted person.44 Hatchard and Coldham also
state that the above offences were seen in pre-colonial African
3 8 Adeyemi, A.A., “Death Penalty in Nigeria: Criminological Perspective”. (1988/1991), Nigerian Current Law Review, Published by Nigerian Institute of Advanced Legal Studies, Lagos in 1993, p.1.
3 9 Aja, E., “Crime and Punishment: An Indigenous African Experience” in L. May et al (ed.), Legal Philosophy: Multiple Perspectives (Snaap Press, 2000), p.231.
4 0 In Pre-Colonial Uganda, for example, the Lango imposed a mandatory death sentence On those caught in the act of witchcraft, incest and sexual aberrations. See Driberg, J. The Lango: A Nilotic tribe of Uganda (London: T. Fisher Unwin, 1923), p.209.
Among the Yoruba of Southern Nigeria, death was the penalty for adultery with
chief‟s wives. See Talbot, P., The Peoples of Southern Nigeria (London: Oxford
University Press,1926), p.629. See also Milner, A., The Sanctions of Customary Criminal Law: A Study in Social Control (1965). Nigerian Law Journal, pp.173-186. Also, see Karibi-Whyte, A.G., History and Sources of Nigerian Criminal Law (Spectrum:1993), Chap.4.
4 2 Death was also a form of punishment for witchcraft and cannibalism in pre-colonial Sierra Leone. See the Report of the National Co-ordinator of Sierra Leone, Abdul Tejan-Cole, presented at the First International Conference on the Application of the Death Penalty in Commonwealth Africa, in Entebe, Uganda, from 10-11 May 2004.
4 3 Chenwi, L. Towards the Abolition of the Death Penalty in Africa. (Op cit), note 20, ante, p.18.
4 4 Elias, T., The Nature of African Customary Law.(Manchester, Manchester University Press: 1956), p.260.
27
societies as threatening the security of the community, and beyond redress by the payment of compensation to the victim.45
However, Ellis was of the view that death was imposed when the
offender was caught in the act. In some cases, the infliction of death
was a consequence of practices such as trial by ordeal, a medium used to ascertain guilt.46
Interestingly, under the pre-colonial African traditional criminal justice system, there was much reliance on compensation of the victims of offences by offenders. Accordingly, the death penalty existed as an exception not the norm. According to Elias47, African
courts were prepared to promote reconciliation and order payment of compensation to victims of crimes. For example, if a Baganda killed a person, the penalty was the payment of blood money. Roscoe48
acknowledged that the usual method of punishment among the Busoga was fine for murder. Agostoni,49 also contended that the Luo of Western Kenya and traditional Sudanese societies resorted to compensation. The murderer of a deceased male was compelled to marry the wife of such deceased person. This must have been premised on the perception that killing the murderer would lead to loss of two breadwinners thereby making two families fatherless.
4 5 Hatchard, J and Coldham, S., “Commonwealth Africa”, in Hodgkinson, P. & Rutherford, A., Capital Punishment: Global Issues and Prospects, (Winchester: Waterside Press, 1996), p.156.
4 6 Ellis, A., The Yoruba-Speaking Peoples of the Slave Coast of West Africa, (Oosterhout: Anthropological Publications 1966), p. 190.
4 7 Elias, T., The Nature of African Customary Law, (Op cit), note 44 ante, p.136. Also in Kenya between 1927 and 1955, the death penalty was available for the rape of
European woman by an African man. These species of offences are called “Black
peril” offences. See Hatchard, J et al., “Commonwealth Africa”, in Global Issues and
Prospects.(Op cit), note 45, ante, p.156.
4 8 Roscoe, J., The Bagesu and Other Tribes of the Uganda Protectorates, (Cambridge: Cambridge University Press; 1924), pp.39-40, 42,102&118.
4 9 Agostoni, T., May the State Kill? (Nairobi: Paulines Publications Africa , 2002), p.76. See also Read, J.S., “Crime and Punishment in East Africa: The Twilight of Customary Law”. (1964) 10 Howard Law Journal, 164.
28
With the introduction of British colonial rule in some parts of Africa, customary law was recognised by the colonial authorities if it was not repugnant to natural justice, equity and good conscience, and not inconsistent with the written law50. Throughout most of British
colonial Africa, codes of criminal law and procedure of very similar origin were introduced. For example, Devenish51 asserted that in
South Africa, the death penalty was introduced by the colonial powers that settled and governed at the Cape.
However, in post-colonial Africa, there were no significant changes in the penal policies, as the policies of independent African government showed a remarkable continuity with those of their colonial predecessors. They emphasised retribution and general deterrence instead of the rehabilitation of the offender.52 It is noteworthy that in most countries, including Nigeria, customary criminal laws were abolished. There were moves, however, to incorporate the customary courts‟ structure into the penal system.53
In Nigeria, the advent of the British rule resulted in the endorsement of Capital punishment under the Criminal Code and the Penal Code in Southern and Northern Nigeria, respectively. Capital punishment, consequently, has a long and storied history in the many societies constituting Nigeria.54
5 0 Coldham, S., “Criminal Justice Policies in Commonwealth Africa: Trends and Prospect”. (2000) 44, Journal of African Law, p.219.
5 1 Devenish, G., The Application of the Death Penalty in South Africa: Its Historical and Jurisprudential Evolution and Background and its Relationship with
Constitutional and Political Reform. (Pietermaritzburg: University of Natal Press,
1990), p.4.
5 2 See Coldham, S., “Criminal Justice Policies in Commonwealth Africa: Trends and Prospect” (Op cit), note 50, ante, p.23.
5 3 See Hatchard, J. & Coldham, S., “Commonwealth Africa”, (Op cit), note 45, ante. See, for example, section 36 (12) CFRN 1999,as amended in 2010 and 2011. Op cit
: ……. A person shall not be convicted for a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; …… See, on the
application of the provision, Aoko v. Fagbemi (1961) All NLR, p.400.
5 4 For further discussions on the history of pre-colonial societies in Nigeria, see Ajisafe, A.K., The Laws and Customs of the Yoruba People (Lagos: K&K Bookshop, 1996), Ojo, S., The Origin of the Yoruba, Their Tribes, Language, Native Law and
Custom, (N.P, 1953). Onwubiko, O., African Thought, Religion and Culture (Snaap
Press, 1991), Elias, T.O., The Nature of African Customary Law, ibid., Elias T.O.,
British Colonial Laws (Stevens 1958). See also Ibidapo-Obe, A., “The Death Penalty
and African Tradition: Lessons for Modernity”; being a paper presented at the National Dialogue on The Death Penalty in Nigeria, Organized by the Federal Ministry of Justice on 17th October, 2003.
29
The Colonial Government ensured that the crimes which attracted sentence of death were limited. In the then Colony and Southern Protectorate55, the received English Criminal Law and the then
Criminal Code reduced capital crimes theoretically to four, though in
practice to one i.e murder. In the North56, Islamic and Customary
Criminal Laws co-existed with the Code until 1960, but the effect of the Northern Administration‟s policy was to allow the execution of only those offenders whose crimes would have been capital under the
Criminal Code, and as at then, murder was the only crime which
attracted Capital punishment.57 Admittedly, the Penal Code of 1960
extended the scope of the death penalty to more offenders, in practice, executions were restricted to those convicted for murder. There are some common areas of coverage in the penal and criminal codes. Three offences are capitalized in both codes. These are
murder (culpable homicide), treason and directing, controlling or presiding over an unlawful trial by ordeal which results in death.58
Under the Penal Code, brigandage59is punishable with death for all
parties to the offence where it results in death.
Three other offences under the Penal Code attract death penalty. These are giving false evidence in a trial which results in the
conviction and the execution of an innocent person, abetting the suicide of a minor, a mentally abnormal and drunken person and
5 5 Odumosu, O.I., The Nigerian Constitution: History and Development of its Laws and
Constitution (London: Sweet & Maxwell, 1967), pp. 15 -72. See also, Nwabueze
B.O., A Constitutional History of Nigeria. (London: Longman, 1982), p.64. 5 6 See Tsofo v. Gubba (1947) 12 WACA, 141.
5 7 Elias, T.O., Nigeria: The Development of its Law and Constitution (London:Stevens & Sons, 1967), pp 1-72.
5 8 Though, the Penal Code extends liability to anyone who is present at such a trial. 5 9 Section 302 of the Penal Code; its section 297 defines brigandage as when five or
more persons conjointly commit or attempt to commit a robbery. It is based on the
30
attempting to commit culpable homicide by a person who is already serving a life sentence. Milner60rightly observed that there is nothing whatsoever to suggest that these additional capital offences have any special relevance whatsoever to the conditions in the Northern states. It is noteworthy that few executions took place under the Balewa administration between 1960-1965. However, the emergence of the military on the eve of 15th January 1966, fostered the growth of more capital offences. Serious public order offences61and possession
of ammunition and explosives were capitalized. The scope of capital
offences was later extended in the year to include the offences of
planting, cultivating, importing or knowingly selling Indian hemp.62
The Civil War Era also aided the introduction of more capital offences. These were the repressive robbery legislations which were promulgated in 1967.63 At the end of the Civil War, there was an
unprecedented upsurge in robbery operations which led to an extensive overhauling and re-branding of the theft and robbery laws.64 The effect of the newly promulgated decrees was that whilst
murder convicts had a relatively low rate of executions, robbery convicts were publicly executed by firing squad.65 However,
regardless of the public execution, incidents of armed robbery soared and it was rather obvious that the deterrent effect of the death penalty then, was a chimera.
6 0 Milner, A., The Nigerian Penal System (London: Sweet & Maxwell, 1972), p.48. 6 1 See Suppression of Robbery Decree 1966 and Public Security Decree, 1967. 6 2 Indian Hemp Decree, 1966.
6 3 Suppression of Robbery Decree 1967 (Fed), Robbery (Summary Trial and
Punishment Edict 1967)(W), Penal Code Law (Amendment) Edicts (1968)(N.C),
1969(N.E), 1969(Kwara), 1970(Kano).
6 4 Robbery and Firearms (Special Provisions) Decree, 1970 was promulgated.
6 5 Olatunbosun, A., “Coup d‟etat in Nigeria: Can Law Forestall it?” Unpublished paper accepted for publication in the University of Calabar Law Journal in 2004. Hatchard and Coldham reported that 1,220 persons were executed in Nigeria between 1976 and 1985. See Hatchard J. and Coldham, S., “Commonwealth Africa” (Op cit), Note 45 ante, p.169.
31
Many executions for murder offences were recorded during the Gowon administration between 1966 and 1975, but the regime was toppled in another coup in 1975, resulting in the Murtala Mohammed Regime66.
However, the succeeding military regime of General Obasanjo recorded some executions and contributed to the death penalty statistics. Also, few executions were recorded during the Civilian Administration of Alhaji Shehu Shagari from 1979 to 1983.
The mandatory death penalty provision for armed robbery was re-introduced by the military regime of Major-General Muhammadu Buhari.67 He promulgated the Robbery and Firearms Decree, No 5 of
1984, with no right of appeal, though clemency could be exercised by
the Military Governor of a State, after consultation with the State Advisory Council on the Prerogative of Mercy. The Regime also promulgated the Special Tribunal (Miscellaneous Offences) Decree,
No 20 of 1984. Section 6(3) of the Decree prescribed death sentences by firing squad for a number of offences which, include arson, tampering with oil pipe line, tampering with electrical and telephone cables and dealing with cocaine or other similar drugs. In
6 6 For a detailed account of military rule in Nigeria, see Ojo, A., Constitutional Law and Military Rule in Nigeria.(Evans Brothers Nigeria Publishers Ltd, 1987). Also, see Eweluka, D., “Constitutional Aspects of Military Take-Over in Nigeria”. (1967) 2
N.L.J No.1, pp.1-15.
6 7 In the night of December 31, 1983, the Armed Forces took over the administration of government from the Civilian Administration. The first decree promulgated by the Buhari led-Administration was the Constitution (Suspension and Modification)
Decree No.1 1984 which suspended certain provisions of the 1979 Constitution.
According to Amnesty International (A.I), over 650 prisoners were executed between 1964 and 1985 after the military returned to power. State military governors ordered the execution of prisoners under death sentences in their states. It was reported that in November 1984, 55 prisoners were executed in Enugu prison in one day. See www.amnesty.org/rmp/dplibrary. (Last accessed 15 June, 2010). Another Decree promulgated by the Regime was the Counterfeit Currency
(Special Provisions) Decree 1984. See also Owoade, M.A., “The Military and the
32
April 1985, three convicts were publicly executed by firing squad, having been convicted for offences of drug trafficking.68 These executions were widely condemned, especially having been based on an ex post facto legislation, since the offences were committed before the promulgation of the Decree which was back dated to give it a retroactive effect. Yet, the Regime ignored the public outcry, and carried out the executions.
Sequel to the barrage of recriminations which greeted the execution of the trio for drug trafficking, the Babangida Regime wasted no time in de-capitalizing drug offences when it assumed power.69 That
Administration experienced the alleged coup attempt of Mamman Vatsa, and the aborted coup of Gideon Orkah. The culprits were sentenced to death and subsequently executed.70
The military era of General Abacha also received a modicum of recrimination from the public with the trial, conviction and execution of Ken Saro Wiwa and seven other minority right activists charged with the murder of nine Ogoni chieftains. They were hastily executed before they could exercise their rights of appeal to the Provincial Ruling Council (PRC). The incident generated a lot of furore nationwide and internationally. It led to the suspension and threat of expulsion of Nigeria from the Commonwealth of Nations.71
6 8 These were Batholomew Owoh, Bernard Ogedengbe and Lawal Ojuolape.
6 9 He promulgated the Special Tribunals (Miscellaneous Offences) Amendment
Decree, No 22 of 1986 which also allowed appeals to a Special tribunal.
7 0 Amnesty International (AI) also reported that the military government of General Ibrahim Babangida, which came into power in 1985, reduced the number of executions to over 400 between 1986 and 1991. See www.amnesty.org/rmp/dplibrary. last accessed 15th June 2010. During the successive military regimes, mass public executions turned the act of judicial executions into a macabre and degrading spectacle.
7 1 For a detailed account of the trial of Ken Saro Wiwa and others, see Birnhaum, M., (QC) “Nigeria, Fundamental Rights Denied”. Report of the Trial of Ken Saro Wiwa and Others (1996), published by Article 19 (International Centre for Censorship), in association with the Bar Human Rights Committee of England and Wales, and the Law Society of England and Wales.
33
The hard earned Civil Rule of the Fourth Republic, which ushered in Chief Olusegun Obasanjo, brought some measure of sanity to the issue of execution. The governors in the affected States reviewed the plights of condemned persons on the death row in the various designated prisons nationwide. Consequently, the death penalties imposed on many convicts were commuted to life imprisonments. However, the death penalty is still retained under the existing criminal laws in the Country.
The scope of the application of the death penalty has been expanded in Nigeria with the introduction of Shariah Penal Code in some Northern States.72 Prior to that period, issues relating to criminal
trials in the Northern States were exclusively codified in the Penal
Code.73 However, in the exercise of its criminal jurisdiction, the
Shariah courts have been sentencing accused persons to various forms of punishments including Capital punishment. The offences in respect of which the Shariah courts assume jurisdiction include Zina.74 The offence of Zina is punishable with death by stoning where
the sexual intercourse is between married people who are not husband and wife.75 Other capitalized offences under the Shariah
7 2 On the 27th of October 1999, Zamfara State Governor Sani Ahmed, officially launched the Shariah Penal Code, which came into force on the 27th January 2002. Thereafter, eleven other states have adopted the Sharia Penal Codes as their State Laws. The other states are Kano, Katsina, Sokoto, Bauchi, Niger, Gombe, Jigawa, Kaduna, Borno, Kebbi and Yobe.
7 3 Akingbehin, E.O., “The Antonyms of Shariah and Human Rights: Nigeria‟s Perspective”, in International Law, Human Rights and Development, Essays in
Honour of Professor A.B Oyebode (2004). Published by the Faculty of Law,
University of Ado Ekiti, Nigeria. pp.388-408.
74
Holy Qur’an Chapter 24, v.4. Zina has been defined as the sexual intercourse between a man and a woman without the legal relationship of husband and wife between them. See Naseef A.O., Encyclopaedia of Seerah (1982) Vols 1-11, (London; The Muslim School‟s Trust), p.272.
7 5 Bambale, Y., Crimes and Punishment Under Islamic Law (Malthouse Law Books, 2003), pp. 69-73. However, if the sexual intercourse is between unmarried people, the punishment is merely 100 lashes of cane with one year imprisonment. See section 127(b) of the Zamfara State Shariah Penal Code. Op cit.
34
Penal Code include Rape and Hirabah with execution methods ranging
from stoning to death, to death by crucifixion.76
There is no gainsaying the fact that there is a great decline in the use of capital punishment today across the globe. Since the emergence of Nigeria‟s Fourth Republic in Nigeria, there have been very few executions of condemned offenders. State Governors have largely declined to sign death warrants.77
Across the globe, 95 countries have completely abolished capital punishment for all crimes, 9 countries, except for war crimes, have abolished it, 35 countries are de facto abolitionists, having not executed any person in the last ten years; and 58 countries qualify as retentionist countries. Nigeria is one of the retentionist countries. However, there have been moves to abolish Capital punishment in Nigeria. There is a bill for moratorium pending abolition before the National Assembly. This has been sequel to the recommendation of the National Study Group, which was inaugurated by the Federal government in 2003. Its terms of reference mandated it, inter alia, to conduct a study on the use of capital punishment and make appropriate recommendation. It submitted its Report in 2004, with its major recommendation being the establishment of a moratorium pending abolition.78
7 6 See generally sections 128 and 153 (c)&(d) of the Zamfara State Shariah Penal
Code Law No 10 2000
7 7 It is pertinent to point out at this juncture that the reluctance of the affected State Governors to sign death warrants, is irrespective of whether the condemned prisoner had exhausted his appellate rights or not.
7 8 See generally, Agbakoba, O. & Obeagu, O., Handbook on Death Penalty. (Towards a Moratorium in Nigeria; 2003). Published by the Human Rights Law Service (HuriLaws).
See also the Final Report of the National Study Group on Death Penalty submitted to the Federal Government of Nigeria in Dec ember 2004. The Latest entry into the abolitionists‟ group are Burundi and Togo in 2009. See http://www.dpic.org
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2.3 THE SCOPE OF CAPITAL PUNISHMENT 2.3.1 INTRODUCTION
This Segment deals with the range of crimes for which capital punishment is provided, the basis of capitalization of such offences, the prevention of retroactive use of capital offences legislations, and the exclusion of certain categories of capital offenders from suffering Capital punishment.
There is no doubt that most offences are capitalized because of the security threat which they pose to the society. It is true that what constitutes a threat varies from one society to another. The scope of capital offences in some countries is so wide; whilst in some countries there are few capital offences.
It is noteworthy that the United Nations Human Rights Committee, established under the ICCPR,79 has criticized countries with wide
scope of capitalized offences in recent years.80 2.3.2 CAPITALIZED OFFENCES IN NIGERIA
There exist various provisions in different statutes which prescribe capital punishments for some offences in Nigeria.
Under the Criminal Code, offences of murder81, treason82,
treachery83, instigating invasion of Nigeria84, and trial by ordeal
7 9 The Committee was established under Article 28 of ICCPR.
8 0 Sheinin, M., “Capital Punishment and the International Covenant on Civil and Political Rights: Some Issues of Interpretation in the Practice of the Human Rights Committee”, being a paper presented to the EU-China Human Rights Seminar, Beijing, 10-12 May, 2001.
8 1 Section 319 Criminal Code (Op cit). 8 2 Section 37 Criminal Code (Ibid). 8 3 Section 49A Criminal Code (Ibid). 8 4 Section 38 Criminal Code (Ibid).
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resulting in death85 attract capital punishments. Under the Penal
Code, the death sentence is the mandatory punishment for the offences of culpable homicide86, abetment of the suicide of a child or
insane person87, trial by ordeal which results in the death of
another88, giving or fabricating false evidence which results in the
conviction and execution of an innocent person89 and treason.90
Capital punishment is also prescribed for the offence of armed
robbery in the Robbery and Firearms (Special Provisions) Act,91
Which has now been incorporated into the Criminal Code.92 Aside from the penal laws, the Constitution also recognizes the death penalty as a legitimate punishment for capital offences.93
With the official adoption of Shariah Penal Code by some Northern States of Nigeria on the 27th January 2002, the pre-existing scope of
capital offences in Nigeria has been widened, and certain sexual offences, like adultery and sodomy, which were hitherto, punishable with flogging under the Penal Code and the Criminal Procedure
Code,94 now attract capital punishment. It is on record that Safiyyatu
Husseini was sentenced to death by stoning for adultery under the Sokoto State Sharia Penal Code by the Upper Sharia Court, Gwadabawa, Sokoto in 2001. Also, Amina Lawal was sentenced to
8 5 Section 208 Criminal Code (Ibid). 8 6 Section 221 Penal Code (Op cit). 8 7 Section 227 Penal Code (Ibid). 8 8 Section 214B Penal Code (Ibid). 8 9 Section 159(2) Penal Code (Ibid) 9 0 Section 411 Penal Code (Ibid).
9 1 Robbery and Firearms Special Provisions Act 1984(Op cit).This has now been incorporated into the Criminal Code in the 2004 Laws of the Federation of Nigeria, Cap. C.38, section 402.
92
Section 402(2), (ibid.).
9 3 See section 33, CFRN 1999 (Op cit), as amended in 2010 and 2011.
9 4 Zamfara State with eleven other states in the North has adopted the Shariah Penal
Code. See sections 387 and 388 of the Penal Code (Ibid) for the offence and
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death by stoning by the Bakori Lower Shariah Court in 2002 under the Katsina State Shariah Penal Code for adultery.95
Globally, a number of restrictions have been placed on the imposition of Capital punishment, in that, it has to be imposed in accordance with the law. The substantive and procedural safeguards for its imposition must be respected.96 Similarly, Article 6 of the ICCPR
provides the procedural safeguards for the imposition of death penalty. These include the reduction in the scope, non-extension of the scope, and non-retroactive use of the death penalty, as well as the non-imposition of the death penalty on certain categories of persons. It is unfortunate that there is paucity of instruments restraining States which have earlier abolished the death penalty from re-introducing it.97
The ICCPR, in the bid to ensure a total abolition of capital punishment, provides that the scope of capital punishment should be restricted to the most serious crimes.98 The phrase most serious
crimes is evidently nebulous because of the problem of lack of
universal interpretation of most words. Most serious can attract different interpretation depending on national culture, tradition and political complexion. It has been contended that the phrase most
9 5 See BAOBAB for Women‟s Human Rights and Shariah Implementation in Nigeria: The Journey so far. pp. 78-98. It must be noted that none of the sentences had been executed as the decisions were set aside on appeal.
9 6 Chenwi, L., Towards the Abolition of the Death Penalty in Africa. (Op cit), note 20, ante. p.35
9 7 The only instrument that places such a restriction is the American Convention on
Human Rights (ACHR). Adopted in 1969, entered into force in 1978 (reprinted in
Basic Documents Pertaining to Human Rights in the Inter-American System, OCA/ser.L/V/1.4 Rev.9. 31 January 2003, 27) Article 4 (3) prohibits the re-establishment of the death penalty in states that have abolished it.
9 8 Art. 6(2) ICCPR (Op cit). The ICCPR has been ratified by 50 African States and signed by only two. See the status of ratification of principal International Human Rights Treaties http://www.unhchr.ch/pdf/report. (accessed 21 March, 2010.). The ICCPR was adopted in December 16, 1966 and it entered into force on March 23, 1976. Vide G.A. Res 2200 A (XXI) UNGA Ordinary Resolution, 21st Session, Supp (No.16) at 52, U.N Doc. A/631 6 (1966) 999 UNTS 171.
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serious offences in Article 6(2) was nothing more than a marker for
the policy of moving towards abolition through progressive restriction.99 The golden question is: what constitute the most serious
crimes? It is imperative to realize that the meaning of most serious would need to be teleologically interpreted in an ever restricted way. The first attempt at this definition was in 1984, when the Economic and Social Council of the U.N, adopted by resolution, the Safeguards
for the protection of the Rights of those Facing Death Penalty.
The first Safeguard specified that capital punishment may be imposed only for the most serious crimes, thereby indicating that the scope should not go beyond intentional crimes with lethal or other extreme
consequences. The Safeguard should also be construed to depict that the offences should lead to loss of life or be life-threatening in the
sense that death is the likely consequence of the action.100
There have been other attempts to illuminate the foggy concept of
most serious offences.101 The U.N. Special Rapporteur, Philip Alston, has also adopted a similar definition of the amorphous phrase when he said that the death penalty can only be imposed where it can be shown that there was an intention to kill which resulted in the loss of life.102 Quite unfortunately, this amorphous phrase has been left
9 9 Hood, R & Hoyle, C., The Death Penalty: A Worldwide Perspective. (Op cit) note 18, ante, p.21. It was in (resolution 28/57) 1971 and again in (resolution 32/61) in 1977 that this aspiration was reinforced by the United Nations General Assembly which stated that the main objective of the U.D.H.R and Art. 6 of the ICCPR is to progressively restrict the number of offences for which capital punishment might be imposed with a view to its eventual abolition.
1 0 0 The Human Rights Committee has laid it down that the concept of most serious
crimes employed in the covenant (Article 6 para. 2) must be read restrictively to
mean that the death penalty should be quite an exceptional measure.
1 0 1 Article 4(4) of the American Convention on Human Rights stipulates that capital punishment shall not be imposed for political offences. The Commission on Human Rights in its Resolution 1991/61 and 2004/67 also urged all states that still retain the death penalty to ensure that it is not imposed for non-violent financial crimes or non-violent religious practices or expression of conscience.
1 0 2 See the Report of the Special Rapporteur on Extra Judicial, Summary or Arbitrary Executions A/HRC/4/20. 29 January 2007, para. 65.
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open-ended such that Viljoen once wondered if there are no clear indications of what the most serious offences are.103
Consequently, it is doubtful if offences like apostasy and illicit sex (capitalized in Sudan) endangering or corrupting society (capitalized in Libya) embezzlement and other non-violent economic offences, (capitalized in China) are compatible with the ICCPR and the African resolution as regards the contraction of the capital offences to the most serious ones.104
The Chinese position deserves a special mention. In China, the death penalty is imposed for certain offences, which by international standards, do not fall within the scope of most serious or heinous crimes. Specifically, offenders found guilty of corruption, embezzlement, VAT fraud and other non-violent economic crimes are liable to be sentenced to death and executed.105 In support of this
Chinese position, is arguable that any crime which is damaging to the economy, and could thereby lead to unemployment and hunger for
1 0 3 Viljoen, F., “Introduction to the African Commission and the Regional Human Rights System” in C. Heyns (ed.) Human Rights in Africa (Leiden: Martinus Nijhoff Publishers, 2004), p.400.
104 Hood, R & Hoyle, C., The Death Penalty. (Op cit), note 18, ante, pp.129-154. Bribery or Corruption of Public funds is a Capital Offence in China, Iran, Thailand and Vietnam. Countries that capitalized the offence of rape include Egypt, Kuwait, Pakistan, Saudi Arabia, South Korea and Tunisia inter alia. Adultery and Sodomy are also capitalized under the Shariah Penal Codes in Nigeria and Yemen. Iran capitalized sex between a non-Muslim male and a Muslim female, and prostitution is capitalized in Saudi Arabia and Sudan. Nigeria also capitalized drug-related offences between 1984 and 1986.
1 0 5 (Ibid). p.52. Hood, R., et al wrote that Cheng Kejie, a former Vice-Chairman of the Standing Committee of the National People‟s Congress and a former Provincial Governor was executed in 2000 for corruption and taking of bribes amounting to over 41 million yuan (about US$15million). Also recently in 2006, two ex-employees of China‟s third largest bank were executed by lethal injection for defrauding customers of millions of dollars. The former head of China‟s State Food and Drug Administration, Zheng Xiaoyu, was also sentenced to death in May 2007 after pleading guilty to accepting a bribe to the value of US$850,000 and for dereliction of duty. He was swiftly executed within six weeks in July, 2007. It is however the writer‟s view that any crime that is damaging to the economy and could lead to unemployment and hunger for the citizens should be viewed with seriousness, so as to warrant its capitalization.
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the citizens, is serious enough to warrant the capitalization of such a crime. It is, therefore, submitted that one may not really condemn China‟s stand in the circumstance, on the basis of the position of those offences on the seriousness continuum However, in the
Western countries, in particular, such offences are not placed at that level of the seriousness continuum.
2.3.3 NON-RETROACTIVE ENFORCEMENT OF CAPITAL PUNISHMENT The cardinal principle of Criminal Law, which prohibits the enforcement of retroactive laws, finds expression in the latin maxim
nulla poena sine lege. Put simply, it is that no act should be punished which is not already prohibited by law. In other words, a criminal charge should be based on a crime which exists in a written law at the time of the commission of the crime.
Article 6(2) of the ICCPR106 allows for the imposition of death penalty
to be only for crimes that are capitalized in a written law at the time of the commission of the offence. The United Nations Safeguard No 2
for the Protection of the Rights of those Facing the Death Penalty
added a further condition that if, subsequent to the commission of a crime, provision is made by law for the imposition of a lighter penalty, the offender shall be subjected to the lighter penalty, but not conversely.107
The Constitution of the Federal Republic of Nigeria 1999, as amended
in 2010 and 2011, also forbids the imposition of a heavier sentence
on an offender than the sentence which prevailed when the offence was committed.108 In addition, the African Charter also prohibits
1 0 6 (Op cit), note 98, ante. 1 0 7 Emphasis mine.
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retroactive invocation of any penalty, including Capital punishment thus:
No one may be condemned for an act or omission
which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed….109
However, few countries have introduced the death penalty and applied the law retrospectively. For example, after the 2nd World War,
Israel passed legislation which made it possible to punish severely the Nazis found guilty of perpetrating atrocities during the Holocaust. Adolf Eichmann was executed under this provision in 1962.110
Iraq, under Saddam Hussein‟s regime, invoked the death penalty retroactively in 1980 for membership of outlawed political parties. By virtue of Decree 115 of 1994, the death penalty could be applied retroactively to persons who had evaded military service for the third time.111
In Nigeria, the military government extended the death penalty offences by decree in 1984, retroactively to cover 19 miscellaneous offences. Three men were executed for drug-related offences which were committed before the decree was promulgated. Drug offences
1 0 9 Article 7(2) ACHPR (Op cit). Some other African States have also incorporated similar provisions in their constitutions to prohibit retroactive imposition of the death penalty. For example, the Constitutions of Ethiopia, 1994 (Article 22), Zambia, 1996 (Article 18(4)) and Ghana, 1996 (Section 19(5)).
1 1 0 See the Report of the Secretary-General, Capital Punishment and Implementation
of the Safeguards Guaranteeing the Protection of the Rights of Those Facing the Death Penalty, E/1995/78, 8 June, 1995 para.62
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were later de-capitalized in 1986.112 Also, under the Shariah Penal
Code, in Niger State of Nigeria, Fatima Usman was sentenced to
death by stoning for adultery, an offence which she allegedly committed before the Shariah Law was enacted.113 It is submitted
that the offence of adultery does not satisfy the requirement of most
serious crime as laid down in the ICCPR. The sentence is also
condemnable on the ground of retroactive enforcement of laws, which is an infraction of the provisions of international instruments and the Nigerian Constitution.114
In Sudan, the death penalty was applied retroactively for adultery between married persons in 1983, and to apostasy in 1991.
Also, some countries like Burundi, Chad, Guinea, Lebanon and South Korea have informed the United Nations that if a crime became punishable by a lesser penalty than death, an offender under sentence of death would not be eligible to receive that lesser sentence.115
1 1 2 See Special Tribunal (Miscellaneous Offences) Decree 20 of 1984 and Special
Tribunal (Miscellaneous Offences) Decree 22 of 1986. The three people executed
through the retroactive enforcement of death penalty law were Bartholomew Owoh, Bernard Ogedengbe and Lawal Ojuolape. It is on record that the executions attracted spontaneous and monumental public outcry. See Newswatch Magazine. December 11, 1989. See also Agbakoba, O. & Obeagu, O., Handbook on Death
Penalty. (Op cit) note 78, ante, pp.11-12.
1 1 3 Fatima Usman was actually arraigned and sentenced to a term of imprisonment with an option of fine under the Penal Code when the Shariah Penal Code was yet to be enacted. By the time she appealed the decision, the Shariah Penal Code had been enacted and the lower court was instructed by the Appellate court to review its judgement in line with the newly enacted Shariah Penal Code. The sentence was then changed to death penalty by stoning. This is a clear-cut case of retroactive attempt at enforcement of the death penalty law. The sentence was eventually quashed on appeal.
1 1 4 See S.36(8) CFRN 1999 (0p cit), as amended in 2010 and 2011. See also Art. 6(2) ICCPR (Op cit). Also, see BAOBAB for Women‟s Rights and Shariah Implementation in Nigeria.(Op cit) pp.70-72.
1 1 5 In the USA, four states which raised the minimum age limit for the sentence of death to 18 in 1987 did not apply this benefit retroactively to those already under sentence of death, contrary, not only to Safeguard No.2, but also to Art.15(1) of the ICCPR, and Art.9 of the American Convention on Human Rights.
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2.3.4 EXCLUSION OF CERTAIN CATEGORIES OF OFFENDERS FROM CAPITAL PUNISHMENT.
2.3.4.1 JUVENILES/CHILDREN.
States that are parties to the International Covenant on Civil and
Political Rights (ICCPR) and the American Convention on Human Rights (ACHR) are prohibited from imposing capital punishment for
offences committed by persons below 18 years of age.116 This
prohibition is also contained in the United Nations Convention on the
Rights of the Child which came into effect 20 November, 1989, and
has now been ratified by every country, except the United States of America and Somalia.117 But no such specific prohibition is contained
in the African Charter on the Rights and Welfare of the Child.118
At the beginning of the 21st Century, both the U.N Sub-Commission
on the Promotion and Protection of Human Rights119 and the
Inter-American Commission on Human Rights in 2002120 were able to
adopt a principle that death penalty should not apply to persons who committed capital offence when under the age of 18 years as part of customary international law.
However, several countries which are parties to the Convention on
the Rights of the Child have not yet formally abolished the powers to sentence juveniles to death. There is no doubt that the advocacy that juveniles should be exempted from capital punishment is premised on
1 1 6 Art. 6(5) ICCPR and Art. 4(5) ACHR (Op cit).
1 1 7 Art. 37(a) ICCPR adopted by General Assembly Resolution 44/125 of 20 November 1989, and currently ratified by 191 countries. Also, the prohibition is contained in the Draft U.N Standard Minimum Rules for the Administration of Juvenile Justice , adopted in 1985 (known as the Beijing Rules, and adopted by the General Assembly Resolution 40/33, of 29 November 1985). The Child‟s Rights Act, 2003 also contains a similar prohibition in section 221(1)(c) prohibiting the subjection of children to the death penalty.
1 1 8 African Union, OAU Doc. CAB/LEG/24.9/49 (1990) entered into force 29 November 1999, p.3
1 1 9 Resolution 2000/17, UN Doc. E/CN. 4/SUB.2/RES/2000/17 (17 August 2000). 1 2 0 Amnesty International, The Exclusion of Child Offenders from the Death Penalty
44
their diminished culpability arising from their susceptibility to their state of emotional immaturity and incomplete personality development, which could result in anti- social behaviour, which they should not be held accountable for, like grown up adults. It has also been contended that their vulnerability and lack of control over their immediate surroundings gave them a greater claim than adults to be forgiven for failing to escape negative influences as they were still struggling to define their identities.121
Nevertheless, even with the above justification, as adumbrated by an eminent jurist, the United States courts have decided that any person who is above 15 years of age can be sentenced to the death penalty in the case of Thompson v. Oklahoma.122 It is gratifying that the U.S.
recently appeared to be hearkening to the progressive global call when in Rope v. Simmons,123 it held that the Eighth and Fourteenth
Amendments forbade imposition of the death penalty on offenders who were under the age of 18 years when their crimes were committed. This decision heralded the commutation of sentences of 70 prisoners who were on death row and who fell within the age brackets of 17 and 18 years at the time of the commission of their offences.124
There is no doubt that the global move towards the exclusion of juvenile offenders from the scope of capital punishment has attained
1 2 1 Roper v. Simmons 543 US 551 2005; at (b) (2) Pp.14-21.
1 2 2 487 U.S 815 (1988). Also in Stanford v. Kentucky 492 U.S 361 (1989), the court merely raised the age of exemption to 16 years. This is still below the prescription of the International Instruments which is 18 years.
1 2 3 (Supra).
1 2 4 However, it is on record that the first documented execution of a child in the United States was in 1642. See Stevenson, B., “Capital Punishment in the United States of America”. Published in The Death Penalty: Condemned, by the International Commission of Jurist. September 2000, p.47. Also, in 1833, a nine year old boy was sentenced to death in Britain for pushing a stick through a cracked window and pulling out some printer‟s colour valued at two pence. Radzinowicz, I. A., History of
45
substantial success and international acceptance. Prokosch rightly noted that the exclusion of juvenile offenders from capital punishment is so widely accepted in law and practice such that it is approaching the status of jus cogens, a norm of customary international law.125 It has also been held in the Kenyan case of
Turon v. R126 that the death sentence should not be pronounced against a person under the age of 18 years.
In Nigeria, the Children and Young Persons Legislation defines a young person as a person who has attained the age of 14 years but is under the age of 18 years.127 Both the Criminal Procedure Act128 and the Criminal Procedure Code129 provide that where the court convicts
an offender for an offence punishable with a sentence of death, but it is of the opinion that the person has not attained the age of seventeen years at the time the offence was committed, the sentence of death shall not be pronounced or recorded. The court is enjoined to order the detention of such a convict during the pleasure of the President or the State Governor for Federal and State offences, respectively.130
Consequently, the Supreme Court has pointed it out in Modupe v.
State131 that under Section 368(3) CPA:
1 2 5 Prokosch, E., “The Death Penalty versus Human Rights” in Council of Europe, Death
Penalty: Beyond Abolition. (Strasbourg Cedex: Council of Europe Publishing, 2004),
p.28.
1 2 6 (1967) E.A 789 (C.A). It is worrisome however, that Liberia still applies death penalty for crimes committed by children under the age of 18 years.
1 2 7 Section 2, Children and Young Persons‟ Law of Lagos State CAP C.10 Laws of Lagos
State 2003. See also, Section 277 of the Child‟s Rights Act 2003 pegging a young
person‟s age at below 18.
1 2 8 Sections 368(3) Criminal Procedure Act (Op cit). 1 2 9 Section 272(1) Criminal Procedure Code (Op cit).
1 3 0 It must be noted that the age limit of 17 years in these two procedural laws have been superseded by the age limit of 18 years contained in the Child‟s Rights Act. 1 3 1 (1988) 4 NWLR (Pt 87) 130, (1988) 9SC 1. Under Section 306 (3) of the
Administration of Criminal Justice Laws of Lagos State 2007, the age of the juvenile
offender is pegged at below eighteen years old at the time of the offence commission.
