JUSTIFICATION FOR AND THE ABOLITION OF CAPITAL PUNISHMENT UNDER HUMAN RIGHTS LAW

GENERAL INTRODUCTION

1.0.0     INTRODUCTION

Justice has long become a relative term as people term incidences that are contrary to their self will and desires as injustice, the Human nature is very retributive, its thirst for vengeance is so evident that, States find it difficult to ignore, until humanity has been raised to greater heights, vengeance will remain their quest. The concept of death penalty is highly controversial; those fighting for its retention are majorly fighting for the retributive nature and interest of Man. Retribution has overridden the concept of rehabilitation in the criminal justice system. The legality or otherwise of the use Capital punishment has been deliberated by many constitutional courts and their resolutions vary from one jurisdiction to another, the variation is so notable that some States within certain Countries have abolished the use of capital punishment in their own municipal setting, when same is legal in the country. This write-up seeks to evaluate the controversies of this concept, and make recommendations afterwards

1.1.0     OBJECTIVES OF STUDY

The main objective of this study is to critically examine the advent of and development of the doctrine of death penalty in relation to human right law and to look into various provisions of the law both local and foreign and to compare its use in Nigeria to that of other countries, so as to know its effect on the economy and society at large and to reasonably make recommendations afterwards.

1.2.0     SCOPE OF STUDY

The scope of this write-up is within the ambits of criminal law, with emphasis on the fundamental human rights which will be examined under human rights. This work will cut across Nigerian and some other foreign countries. In fact, reference will be made to some United Nations Treaties and jurisdiction when necessary. This work will majorly centre on Nigeria as a country.

1.3.0     METHODOLOGY

This work will be argumentative in nature because of its controversial and sensitive nature, legal and rational reasoning will be used to bring out various

arguments systematically. Opinions of people will be sought through questionnaires and personal interviews, legal writings such as text books, law reports, and internet research tools on contemporary issues of law shall be examined. Extensive research measures will be put in place to ensure that this write up is comprehensive enough to combat the present day use of capital punishment. To enhance the effectiveness and comprehensiveness of this research, the use of capital punishment by nation will be examined and compared to the its non-use by certain nations so as to ascertain the effectiveness of or benefits embedded in the use of capital punishment (if there is any)

1.4.0 LITERATURE REVIEW

There are lots of books and write ups on capital punishment and human rights, efforts will be made to review some of these books. This review is aimed at analyzing what has been done by other scholars and to know what has been left undone so as to contribute my own ideas and findings through recommendations to this area of law.

Owoade 11 talked extensively on capital punishment, His work covered an extensive and intelligent definition of the concept, the arguments for and against it, the mode of executing it in Nigeria, its constitutionality and a statistical analysis of it, which shows that its’ applicability in Nigeria has not deterred others as argued by the anti-abolitionist. He however failed to relate it to human rights, and was too shallow in His discussion of the modes of executing the death penalty.

Oba2 Critically reviewed the notorious Nigerian case of Onuoha Kalu Vs The

State3 and used the decision of the Supreme Court to address three main issues namely; the constitutionality of capital punishment in Nigeria, the issue of prolonged detention of prisoners under death row (death row phenomenon) and the procedural pitfalls that render important human right cases useless. He was great at relating capital punishment to human rights but his work was not as encompassing as it should have been and didn’t exceed the confines of Nigeria.

1Owoade M.A, ‘Capital Punishment in Nigeria’ in Law of homicide in Nigeria, Obafemi

Awolowo University Press Limited Ile-Ife Nigeria, 1990,291.

1. Oba A.A,Capital punishment; the death row phenomenon and the Supreme court of Nigeria, Lecture Material on Human Rights and Civil Liberties.
2. (1998)12 S.C.N.J 1. See also (1998)13 N.W.L.R. (pt583) 531.

Dambazau4 wrote out the debate on death penalty focuses on Nigeria, made reference to the state of other countries in relation to the concept, analyzed the opinions of Elites, and scholars on the issue, argued reasonably and intelligently for and against the concept, and for every point raised in justification for it, he had arguments against such justifications. His write up wasn’t so encompassing as he failed to state his position on the issue, to critically analyze the concept, and also failed to extensively compare the Nigerian capital punishment with that of other countries.

They5 stated discussed the Constitutional provisions on pre-trial, trial, and post-trial rights of the accused, the pre-trial rights include the right to life, human dignity, liberty and so on, the trial right is the right to fair hearing while post trial rights refers to the provisions on the treatment of convicted persons in prison custody. He believes that the extent to which an accused person enjoys actual protection depends significantly on judicial interpretation of the scope of

4Dambazau A.B,’Pros and cons of Capital Punishment’, Criminology and criminal justice, spectrum Books limited, Ibadan 1999

5 M. Ayo Ajomo and I.E Okagbue; ‘Constitutional and other Legal provisions on Human Rights’ Human right and the Administration of Criminal Justice in Nigeria, Nigerian Institute of Advanced Legal studies,1991,3

the respective rights and that greater prospects exist for the guaranty and enforcement of the rights of citizens with the criminal justice system under a democratic system than a military regime. Their work however did not discuss capital punishment in Nigeria as compared to other states, a world-wide analysis of it, its mode of execution and a proper relation of the concept to human right law.

Some scholars6 in their five sections divided book; section A entitled “human rights in Africa” death largely with the works of The United Nations and the African commission on Human and peoples’ Rights in the field of criminal justice. Section B is entitled “country Reports” it consists of fourteen (14) contributions which are diverse both in content and quality with topics ranging from an overview of criminal justice system of the republic of Sudan, prisoners’ rights in Nigeria and South Africa and preventive detention in Ghana. It lacks recent materials and cases but provides an excellent insight into the relationship between human rights and criminal justice system in Zimbabwe and Tanzanian. Section C discusses human rights and education this

6  Mcherif Bassiouni and Ziyad Motala (ed), The Protection of Human Rights in African

Criminal Proceedings. Dordrecht, 1995

consists of three (3) contributions which are dreadfully uneven. Section D contains the reports of the conference working groups. These are full of extremely useful recommendations for developing the role of human rights in the criminal justice system. Finally section E on ‘Democracy in sub-Saharan Africa; An overview’ this is a useful look at some of the political and constitutional changes in Africa brought about by the ending of the cold war. These write ups however failed to relate human right law to the concept of capital punishment.

This article7 analyses critically, some of the capital crimes in the shariah and the common law, particularly frequent capital offences in Nigerian experience. The research demonstrates that there are areas of similarities in the punishment prescribed for some of the capital offences in the Shariah and common law, and that capital punishment is a permissible form of punishment, both in the Shariah and the common law, it also asserts that capital punishment is an effective deterrent to capital crimes. This work did not exceed the ambit of the

7 Yusuf, Abdul Azeez, ‘Frequent capital offences in Nigeria: A Shariah Perspective’ (1998) 7

Kwara Law Review 58.

Shariah and common law, it left out human rights law and the research wasn’t extensive enough.

Richard Burton a Lord Justice of court of Appeal in his article8 indicated that the European convention on Human Rights law has comparatively little direct impact on English rules of substantive criminal law. In those areas where the convention does indirectly come into play, it will be particularly important to respect the constitutional procedures provided in the Human Rights Act 1998 to regulate the interactions between convention rights and the domestic law; in the context of convention rights being rights against the state. The paper sets out some examples of how the process can be developed. The work only talked of substantive criminal law and human rights, but no attention was given to capital punishment and its effect on human rights.

Abdulsalam A Mohammed9 analytically showed that the European and Inter-American Courts have benefitted immensely from individuals and NGO

8;Richard Burton ‘Human right act and substantive criminal law’ (2000) Criminal law review Sweet and Maxwell

9 Abdulsalam A Mohammed ‘individual and NGO participation in Human and People’s Rights: Lessons from the European and Inter-American Courts of Human Rights’, (1999) 43(1 &2) 201

participation in their Judicial processes, they have sometimes relied on information and viewpoints put forward by such individuals and NGOs in order to find conclusions of law and facts. In this manner both courts have availed themselves of a broad range of opinion on the cases that have come before them, thus leading to well researched opinions that have attracted the respect of the International legal and Human Right Communities. He recommends that the African Courts should emulate the examples of both Courts in order to enhance its own capacity to resolve human right disputes that will come before it in future. In particular, He advised that the Courts should be flexible with respect to individual and NGO participation, especially non-party participation, as this will not only give the courts the opportunity to have access to wide-ranging legal opinions on some of the issues that will come before it, but will enable it to serious resource constraints in its work.

Glanville Williams in the write-up,10 discussed the criminal Appeal on Jordan11 where the cause of murder was traced to another set of people and not the stab gotten by the deceased. This made him examine causations in homicide, he

10Glanville Williams ‘Causation in homicide’(1978) The Mordern Law Review, Vol.4, 423.

11  (1956) CRIM L.R

discussed factual and legal causation, manslaughter by emission, plural causations intervening more light intention acts, intervention negligent acts and threw more light on causes of homicides. His work is some shallow as it has failed to examine some other trivial issues

Articles gotten from the internet seem to be more enlightening and well researched; they are more detailed recourse will be made to them in the course of this research.

1.5.0 DEFINITION OF TERMS

WHAT IS PUNISHMENT?

As it is with all law terms, there is no definition that is generally accepted in law, so there are usually various definitions for a single term and none might be termed as wrong. This is also applicable to the term punishment. Black Law Dictionary defines it as

Any fine, penalty, or confinement inflicted upon a person by the authority of the law and the judgment and sentence of a court for some crime or offence committed by him or for his omission of a duty enjoined by law.

Capital punishment has been defined as

Execution as a punishment for a person convicted of committing a crime, or a legal infliction of death as a penalty for violating criminal law

There are other definitions but I would like to limit this work to the ones given above to avoid ambiguity.

1.6.0 CONLUSION

An insight has been given on what punishment and capital punishment really means, its main aim is to deter others from committing the same crime but this cannot be said to have been attained especially in developing countries like Nigeria. This work has evaluated the write ups and contributions done to this field of work and we have discovered that, the controversial nature of this concept in unending as people still stand death trials. Another issue is the qualified nature of the right to life, in many countries today the right to live ceases to exist once a person gets convicted of a crime this is however unfavourable as there are often instances of miscarried justice.