The Death Penalty: Barbarism or Practicality?

Written by Precious Owen

The death penalty, aka capital punishment, is a controversial issue that has evoked a lot of emotions from concerned people. Although it has been abolished in two-thirds of the world's countries,  it has a long history and is still used in countries such as Nigeria, Islamic Nations, Japan and surprisingly America. In recent times, we have seen a clamour for the abolition of the death penalty as capital punishment. 

Photo Credit: Ipleaders

Death penalty is described as a capital punishment for serious offences. The first established death penalty laws date as far back as the 18th century BC in the Court of King Hammurabi of Babylon which codified the death penalty for 25 different crimes. Some biblical scriptures attest to the practice of the death penalty in earlier centuries such as the “whoever shed the blood of man by man shall his blood be shed”. 

In Nigeria,  Section 33 of the 1999 constitution provides for capital punishment in certain cases which must be executed upon sentence of a court of competent jurisdiction. Under the provisions of the criminal code and penal code of Nigeria, offences punishable by death include murder, treason, treachery, fabricating false evidence leading to the conviction to death of an innocent person, armed robbery (under the Robbery Special Provision Act).

Death sentences can be by hanging or shooting (firing squad). Under the Sharia penal laws for the 12 northern state, it went further to include adultery, sodomy, incest, witchcraft inter-alia which sentence under Sharia law includes hanging, stoning and crucifixion.

 Those who favour the death penalty base their arguments on the grounds that it deters criminals from committing serious crimes as people are usually afraid of losing their lives; thus, it serves justice because it appeases the victims or victims' families as it proffers closure.

According to Cornell law Institute, “Justice is the ethical philosophical idea that people are to be treated impartially, fairly, properly and reasonably by the law and arbiters of the law. That laws are to ensure that no harm befalls another and that where harm is alleged a remedial action is taken that both the accuser and the accused receive a morally right consequence merited by their actions”. 

From the above definition, we can deduce that justice needs to be ethical and fair and so it does not necessarily mean the “an eye for an eye and a tooth for a tooth” approach people use to justify the death penalty. 

A locus classicus that has become a leading case on the death penalty issue is the Onuoha Kalu v State case which the Supreme Court of Nigeria affirmed that the death penalty violated neither the right to life nor human dignity under the Nigerian constitution. 

A major argument against the death penalty is that it focuses on inhumaneness, lack of deterrent effects and continuing racial, social and economic biases and its irreversibility. Section 33 of the 1999 constitution provides that every person has a right to life and no one shall be deprived intentionally of his right. This provision, according to the learned Professor Imo Udofa, is acknowledgement of the sanctity of human life and the fact that since no man can give life, no man should be allowed to take it.

It is usually a flawed thinking that two wrongs can make a right. The pro-death penalty argument is that killing people is wrong and therefore, you should kill people for killing, which is absolutely ridiculous as it only serves to continue the vicious circle of violence. 

On the issue, the Executive Director of Access to Justice, Joseph Otteh,  said that “a state that must take life must first give Justice”. Nigeria's justice ecosystem, by which we mean the entire spectrum of the criminal justice process from arrest to conviction, is fraught with treacherous weaknesses and cannot be trusted to offer consistently fair and reliable results that can reasonably rule out life-threatening errors. 

The proposition that the death penalty serves as an effective panacea or deterrent for crime is contestable as there is no clear variable data to prove this. The death penalty is also increasingly losing its appeal internationally because about 108 countries have abolished it with reasons including the view that it has failed to achieve its intended objectives. 

According to Mr Chino Obiagwu (SAN),  National coordinator of the Legal Defence Assistance Project (LEDAP), the death penalty has no deterrent effect on potential offenders. He argued that criminals don’t think about the security of punishment when they set out to plan and execute crime; what they think about is the possibility of apprehension. So despite the harsh punishment for armed robbery since 1970, robbery has remained in the increase.

Photo Credit: Pro Death Penalty.com

Although the death penalty was introduced into our criminal system by the colonial government, Britain has many decades ago abolished it because of the high risk of mistaken conviction and execution. Nearly every common law court has found that death penalty violates the right against dignity of human persons because of its mode of execution. It also does not proffer any closure to victims and their families and adds no justice value to the society. On the contrary when the state takes life forcibly, it sends a message of bloodshed to the society.  

 As can be observed, it seems to serve as punishment to a particular social class of people. ‘Partial Justice is no justice at all’. Justice for the poor in Nigeria remains a huge struggle till date and the sad fact that torture remains hugely a source of procuring evidence by law enforcement officers. It should be noted that the solution of decongesting the correctional facilities which are overpopulated is not by killing them off. 

In conclusion, justice does not necessarily mean killing a killer.  It could also mean sentencing to life imprisonment. A life spent in prison is a worse punishment than an execution. A prisoner on a life sentence has many years to endure their punishment as well as reflect and experience remorse on his or her crimes.

Photo Credit: OHCHR

 A death penalty is not the ultimate solution to the quest for a crime-free society.