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Tochi: Our ‘Offence’ was Objectivity

 The article titled Tochi: Soul Searching Questions for Singapore by Willy Mamah and Frances Ogwo published in ThisDay Law pages of Tuesday, 13 th February, 2007 in response to our earlier piece titled Did Tochi Deserve to Die?, is a welcome development on the debate concerning the abolition of death penalty in our criminal justice system, notwithstanding that it largely misconceived the tenor of our article. In our said piece, without sounding self-justifying, we condemned unequivocally the execution of Tochi by the Singaporean authorities, and by comparative extension commended the punitive options given to Hassanat Akinwande a.k.a Wunmi and similar drug peddlers in Nigeria for being in consonance with the reformative philosophy of punishment, but our presentation of the argument of the school of thought that favours death penalty in cases of inexcusable homicide, in a manner distinguishable from our convictions, evoked scathing criticisms from Willie and Frances’ rejoinder. This piece is therefore aimed at expanding the frontiers of the abolitionist cause while correcting the misrepresentation of our position.

Our Offence - Objectivity

Perhaps we erred on the side of objectivity by giving a good spread and depth to the alternate school of thought under the heading “Argument of Pro–Death Penalty Groups”; but it was and it still is our thinking that presentation of alternate view points on the abolition of the death penalty issue will not only enhance the objectivity of the abolitionist cause, but it will also fortify the persuasion upon which the abolitionist cause is founded. It is equally our view that on such issues of public interest the test for survival of the two opposing thought-paths usually produces the finest logical bases for the winning cause.

Again, in presenting the pro-death penalty arguments, we meant to expose the execution of Tochi’s by the Singaporean authorities for what it is – a clear murder of an adolescent under state colours and authority which neither fits into the absolute position of the abolitionists cause, nor finds a space within the permissible lines of the pro-death penalty cause. It is equally our view that discourses on matters of public interest and societal development must admit of some objectivity. In this regard, the contrary view must not only be assayed, its logical paradigm must be given a fair consideration. We do not think it serves the virtue of objectivity in matters of this nature to posit that the contrary view is bereft of logic or sense or that any mention of its logical bases reduces the force of the abolitionist cause. If the abolitionist cause, to which we subscribe un-reservedly, is well founded, it should be able to survive the logical grid of the opposition (the pro – death penalty cause).

What makes this imperative is because, contrary to the hype of abolition of death penalty in human rights circles, the selective application of death penalty, especially in cases of culpable homicide appears to appeal to over 80% of our populace – a percentage that cuts across literate and illiterate classes of our society, of which a considerable number of policy makers are not left out within the literate class. In a report presented at the first African Conference on Death Penalty in Uganda in May, 2004 by Udo Jude Ilo Esq of Hurilaws, the learned author relied on a public poll conducted in Nigeria by African Independent Television (AIT) on the death penalty issue, according to which over 70% of our populace as at 2004 signed for the continuous use of death penalty in our criminal justice system.

 A Welcome Rejoinder

The rejoinder, in reacting to what it termed a ‘fence-line’ position (by us) on the death penalty issue, reiterated with emphasis the gravamen and the philosophy of the abolitionist cause – a cause to which are committed unrepentant advocates. We have therefore elected, in pursuit of our response to this rejoinder to refrain from joining issues on the improper use of words and unfair ascription of intent against us by our respected comrades on the abolitionist stable. The allegation that we were “…hiding under the abolitionist crusade and wreaking havoc on the struggle” is a bit too hard a verdict. If our attempt at giving balanced perspective to issues of developmental interest in our society should attract such labels, one then wonders whether the abolition cause has not degenerated into a ‘Jihad’. The case for the selective retention of death penalty still has its merits and there is, indeed, no reason for being pretentious or apologetic over ones persuasion on this matter – whether as an outright abolitionist or an outright “retentionist”, or a confident mixed grill of the two ideological extremes. The misconception however affords us the opportunity to draw attention to the need for strengthening the abolitionist cause a little further.

 A Stronger Moral Case for the Abolitionist Cause.

The case for abolition of death penalty should not build its sole anchorage on the perceived failure of capital punishment to deter criminality as there is as yet no empirical basis for such lofty conclusions. Also, blasting on all cylinders about the impropriety of death penalty as a violation of the sanctity of human life is not sufficient. We need to find more compelling basis for our advocacy to persuade both policy makers and our fellow citizens on the “immorality” of death penalty.There is need to answer the moral question upon which 70% or 80% of our citizens elect for the selective application of death penalty (in cases of inexcusable homicide) in our criminal justice system – a question which seeks explanation as to why the murderer’s life should enjoy more sanctity than the victims life. Until the moral content of a law gains a conscientious appeal in the mind and heart of, at least policy makers, the dream for outright abolition will remain a tall one, and spotlighting this moral question which ranks high on the score card of public opinion cannot justify an accusation that one is cross-carpeting from the abolitionist to the retentionist camp.

 Without revisiting the issue of ‘collective consensus’ for purposes of argument, there is need to state that the reasoning upon which a large majority of our citizens justify death penalty in certain cases (like homicide) is a conscientious one, and underscores the need to for us to broaden the logic of our case beyond the issue of ‘right to life’. No human society started out with a code of laws handed down from heaven, hell or limbo, nor are laws that seek to regulate inter-personal interaction in human society simply the product of a ‘deus ex machina’ who thinks and pontificates for everybody – teaching them what they could never have known by their intuitive senses of right and wrong. The only recorded exception is Moses who emerged from Sinai with a ten point injunction. But it is remarkable that even the penal consequences of Moses’ ten point injunction sounds every thing but humanistic in the context of abolition of death penalty.

Driving down the lane of history, a considerable body of penal laws in human society including death penalty evolved from society’s intervention into challenges of human conflict as they arose from time to time; and at every stage of intervention, penalties were pronounced and standards set for future cases. Both at the point of dealing with the specific incident and at the point of prescribing standards for future incidents, a moral question as to what is and would be just and fair to the feuding parties is considered and determined. And that is why a rule of law must of necessity carry a moral content. The acceptability of its moral content determines the acceptability of its stipulations.

Quarrelling with the idea of collective consensus as a veritable source of law therefore seems strange to us as it attempts to undermine the fact that the large corpus of international treaties on which we rely for the abolitionist cause today are not papal pontificates ex cathedra. They are all products of a collective consensus begging for wider ratification from members of the global community – resting its appeal, not on its injunctive force, but on the moral conscience of what stands for a ‘better human society”. Articles 5 and 77of the Rome Statute of the International Criminal Court and the 2 nd Optional Protocol to the ICCPR are, to the extent that they prescribe for the abolition of death penalty, all products of a consensual standard-setting process. The fact that we refer to them as treaty regulations or laws in spite of their sources supports the case of consensus as a source of law.

A Surer Legislative footing for Moratorium

Our allusion to “political motivation” behind the seeming moratorium appears, once again, totally misconceived. It is evident that there has been an informal regime of restraint or subtle moratorium in confirming death warrants by the executives within the last eight years. Salutary as this may appear, we simply expressed the concern held amongst some stakeholders (even if a negligible minority) over the possibility that this regime of informal but blanket restraint could be ill-motivated. We thereby expressed our wish for a regime of restraint that will be based on a sense of statutory duty (through a law on moratorium) rather than executive discretion, and expressed our worry over the possibility of a reversal of the trend in favour of death penalty executions since the present regime of restraint stands on executive discretion and political expedience, as against positive law. We were consequently urging for the signing into law of the moratorium bill on death penalty, a call to which we remain committed, as we enjoin the present National Assembly to make its place in history, and not miss this opportunity.

§ Dibia, Okereafor and Chinweze are Programme Attorneys at Access to Justice