- Leonard Dibia, Lloyd Okereafor and Chinelo Chinweze § .

“No one has the right to take the life given by God. Even if someone commits a crime, let him live on and serve his sentence in jail. But taking someone’s life is a barbaric act”- President Saparmurat Niyazov of Turkmenistan, while signing a resolution abolishing the death penalty in his country.

Introduction

It is indeed ironical that as the Nigerian actress, Hassanat Akinwande AKA Wunmi, celebrated her sentence to three years imprisonment with an option of fine for a drug- related offence, another Nigerian, Iwuchukwu Amara Tochi was being executed for a similar offence in Singapore. Differentials in sentencing policies of both countries may well explain the disparity, but the two cases and the recent execution in Iraq of Saddam Hussein and two others for genocide have once again thrown open the question of the value of human life which usually arises whenever the subject of capital punishment is discussed. This piece therefore examines the rationale for retention of death penalty provisions in Nigeria and other countries, in the light of growing international condemnation of the practice, as a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading treatment. It would also take a look at the effectiveness of Nigerian drug laws to examine whether its supposed “leniency” could be a drawback.

Hassanat Akinwande a.k.a Wunmi was arrested at the Muritala Mohammed International Airport on September 23, 2006 for trying to export 1. 214 kilogrammes of cocaine. She was said to have excreted 92 wraps of the substance, and which was tendered in evidence against her. The judge was lenient on her perhaps on account of her plea of guilt, being a first offender, single parent etc. which formed her allocutus, and imposed a light sentence for an offence, which carries a maximum penalty of life imprisonment. In Singapore however, Iwuchukwu Amara Tochi, a 19 year old Nigerian who was arrested at Changi International Airport, was convicted in December 2005 for carrying about 727 grammes of heroin valued at 970, 000 US Dollars. The campaign to save his life by Nigerian authorities with international support did not save him from being executed. The High Court Judge, Kan Ting Chiu reportedly wrote in the judgment that “there was no evidence that he knew the capsules contained diamorphine”. The United Nations Special Rapporteur on Extra Judicial Summary and Arbitrary Executions, Mr. Phillip Alston faulted Tochi’s conviction, because, according to him, his trial did not respect legal safeguards around the presumption of innocence, stating that- “It is fundamental human right to be presumed innocent until proven guilty” and noted that “Singapore cannot reverse the burden and require a defendant to prove beyond reasonable doubt that he did not know he was carrying drugs”.

Argument of Pro- Death Penalty Groups

T he case for the abolition of death penalty in criminal jurisprudence is undoubtedly a persuasive one, especially as it rightly asserts the fact that extreme penalties (like death sentence) have neither deterred criminal behaviour in human society, nor has it taken due cognizance of the fact that opportunistic criminality, which represents seventy percent of criminal behaviour in third world countries, is largely a product of the basic instinct for survival, than the sheer indulgence of base instincts. That notwithstanding, the argument for proscribing death penalty in its totality and in all circumstances is not acceptable, especially in cases of willful and inexcusable homicide. It must be understood that the collective consensus by which human society (of all races and tribes) prescribed extreme penalties for certain degrees of offences was more informed by notions of justice and respect for human life than otherwise – a respect which in our view is better served by striking an equilibrium between the criminal’s right to life and the victim’s right to life.

While conceding that death penalty may not always have served as a successful deterrent, one also wonders if a lighter sentence for capital offences or, indeed, any humanistic philosophy of punishment (such as reform of rehabilitation or life imprisonment) would have served better in its place. Just as it is unlikely that the execution of Saddam Hussein would deter Osama Bin Laden from more terrorist activities, it is equally unlikely that rehabilitating Saddam in a catholic monastery would deter Osama Bin Laden from prosecuting his “holy war” against the west. Thus the argument that death penalty has not deterred capital offences is, at best, a speculative assertion, as we cannot rule out the possibility (or even probability) that there are persons who, but for the extremity of capital sanction would make a quick resort to heinous crime. In the same vein, there is indeed no basis for the generalized supposition that because some persons, being professional criminals, would pick the hangman’s pocket while on death row, fear of the hangman will not deter some other persons of similar disposition.

Proponents of the abolition of death penalty seem to undermine the fact that punishing crime in human society emanated more from the collective desire and will to preserve life and existence in human society than from the sheer love of punishing a criminal. They forget that deterrent as an element of penal philosophy has never been an end in itself, but a means of keeping within manageable proportions the common inclination in every man to be calculatingly aberrant – especially when he considers the possibility of detection remote. Crime is a compulsive inclination in human nature and no humanistic philosophy of punishment can reverse the inclination.

While conceding that death penalty may be excessive for some categories of offences, it is submitted that death penalty is apt, just and equitable for all cases of willful and culpable homicide which do not fall within excusable cases in the criminal code. This is because “justice” is in issue. What is justice in the context of willful homicide? Saddam Hussein’s late son, with the authorization of Saddam himself, abducted a wedding couple on their wedding day, ravished the bride with animal pleasure and executed the groom.

Before assaying the question of what is justice in this context, it is necessary and acceptable to state that society exists not only for the living, but also for the dead. That is why graveyards are manned and managed with dignified surveillance; and that is why a grave scavenger will not be allowed to exhume corpses and cart away grave clothes at will. He will be charged with stealing, even when the “persona” on whom ownership resides is a dead man. It therefore follows that just as the living is entitled to justice, the dead man, even though devoid of breath was a person to whom, at the time of his departure society owed justice. What is justice in this context? It is the cry of the dead man’s soul (not the soul of the judge, the prosecutor, the human right activist, or the philanthropist) for equity. If the dead man, in cause of the duel had killed his assailant in self defense, he would have been excused and justified, both by law and by conscience. But as he fell defenseless, society is justified to rise to his defense, even if post-humously. Even as he collapses under the hammer of his assailant, the primary cry of his soul is for justice – justice that, as a notion of human conscience involves measure, equation and balance of tilted proportions. Thus the man who takes life unlawfully and inexcusably has not just truncated a breath, but has truncated a full project page of dreams, aspirations and fulfillments.

Our Conviction

No doubt some Asian countries, Singapore inclusive, have very stringent drug laws characterized by death penalty for trafficking in same. Many argue that the stringency of such laws have served to deter trafficking in drugs in those countries. The assertion can hardly be supported by any empirical facts.

The question whether the maximum sentence of life imprisonment and the possibility of commutation of the sentence under the Nigerian Drug Law (NDLEA Act Cap N.30, Vol. 10, LFN 2004) has leveraged the rampancy of drug peddling in and by Nigerians is simply moot as the issue in not amenable to an acceptable index of assessment. However it is believed that given the fact that criminal impulse is not dependent on severity or leniency of penal consequences, the policy bend towards reformative sentencing to which the Nigerian Law inclines evidently accords more with the humanistic philosophy of punishment as it appears to have taken into account the fact that criminal responsibility is more a fashion of complex socio-economic disequilibrium in third world society, than the sheer love of crime. The options given to Hassanat Akinwande, the Nigerian actress is in this context, most salutary since it would have been a disproportionate damage to both the victim and the society to foreclose the gift of life on account of a single error, whether calculatedly or inadvertently done.

Hassanat Akinwande has by the sentence of the Nigerian Court been given another chance to live a crime -free life which would not have been had she been executed as the Singaporeans are wont to do. Perhaps another dimension to Tochi’s execution is consideration for the age of the offender. Being just 19 years old, just a year past majority age, he was still vulnerable and hardly capable of making independent judgments as to the rightness or otherwise of his actions and which drug barons may have exploited. These facts raise a number of questions against the execution- what if he did not possess the mental element which constitutes the crime he was charged with? What if Tochi was indeed innocent? Many what ifs, and then the big question, how would his execution, if wrongful be compensated?

These questions beg for answers, and the argument against the death penalty becomes more interesting considering that the justice system, including appeals in many countries are extremely flawed, leaves room for permanent miscarriage of justice, and thus raises concerns for the possible innocence of convicts. In many cases, innocent persons are framed for capital offences for which they are not guilty, and once executed the damage is irreversible. The case of Aliu Bello v. A.G Oyo in 1986 and a host of others are apposite. He was executed during the pendency of his appeal, which act was criticized in strong terms by the Supreme Court. The case of Anthony Porter of the state of Illinois, USA is also instructive. He spent 15 years on death row before a group of university students found evidence establishing his innocence in 1999. Undoubtedly, the development and civilization of a society is reflected in its penal policy. The execution of Tochi by the Singaporean authorities in defiance of the dynamism exhibited the world over in condemning death penalty exposes its barbarism.

Other arguments by proponents of the death penalty as deterrence for further crimes and vengeance for the injured feelings of society and the individual hardly have statistical basis, as studies in Nigeria (like the Annual Report of the Nigeria Police Service 1967- 1985) show that the incidence of murder and armed robbery consistently increased after 1970 when the death penalty was introduced, and the crime rate was low when the death penalty was not in practice, and thus strengthening the argument that criminals become more hardened when faced with capital punishment. Amnesty international and a host of other writers have also shown that there is no direct correlation between the severity of sentence and the frequency of criminal acts, for which reason it is suggested that more emphasis be placed on detection of the crime rather than punishment for it when it occurs.

Nations of the world have taken steps towards the abolition of the death penalty through the adoption of international treaties. United Nations Standards urge nations to move towards the abolition of death penalty, and not to reinstate the penalty once abolished. The death penalty is specifically excluded for juveniles. The right to life and the right not to be subjected to cruel, inhuman or degrading punishment are recognized in the Universal Declaration of Human Rights, other international human rights and many national constitutions. Death penalty violates these rights as it involves, by its very nature, a denial of the executed person’s humanity, and it strips the dignity of the convicted person and treats the person as an object to be eliminated by the state.

As persuasive as the proponents’ argument may sound, it appears to be more particular about the heinous crime of murder, and turning a blind eye to drug trafficking which this piece appears to be particular about. On the international sphere, the International Covenant on Civil and Political Rights permits states parties to impose death penalty for the most heinous crimes. Many countries of the world do not classify drug trafficking as a heinous crime which warrants capital punishment.

Conclusion

Nigeria has ratified a number of international instruments relating to the application of the death penalty like the International Covenant on Civil and Political Rights, the International Covenant on Economic and Social Rights, the African Charter on Human and People’s Rights, and the Convention on the Right of the Child, all of which propound the sanctity of human life, and the right not to be arbitrarily deprived of it. Such international instruments apply to Nigeria subject to its ratification and domestication.. However, only the African Charter on Human and Peoples Rights has been domesticated via Cap 10, LFN 1990, but the others are usually taken account of in the formulation of governmental policies in Nigeria.

Though Nigeria still retains the death penalty in its statute books, the seeming moratorium on executions in Nigeria (though many think it is politically motivated), the intervention of the Obasanjo administration in some cases of conviction of Nigerians for offences carrying capital punishments in overseas countries, like Tochi’s case, though belatedly, all point to a realization of the inhumanity, vengefulness, non-deterrent, and non- reformist tendencies of a capital punishment regime. This may well be a pointer that the battle is almost won, but lets not celebrate yet, as we mourn the wasting of the life of a young Nigerian, and earnestly hope that this is not another case of a wrongful conviction associated with the death penalty.