The Death Penalty in the Nigeria Legal System
There is no argument as to whether the death penalty applies to convicted offenders under the Nigeria legal system, because as we have earlier seen in previous chapters; it clearly does. However, this chapter is out to disclose and discuss those laws that enable the application of the death penalty in Nigeria. This is because, for any action to be legal, it must be backed up by law.
- The 1999 constitution of the Federal Republic of Nigeria as Amended.
The constitution of the Federal Republic of Nigeria, 1999 as amended is the principal legislation in this country. As clearly stated by His lordship Uthman Mohammed JSC in the case of ATTORNEY GENERAL OF ABIA STATE & 35 ORS V. ATTORNEY GENERAL OF THE FEDERATION1
The constitution is what is called the ground norm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the constitution. By the provisions of the constitution the laws made by the National Assembly come next to the constitution, followed by those made by the house of Assembly of a state
The learned Justice of the Supreme Court was simply saying that the constitution is the legal source from which all other laws take their credence from. No law in Nigeria is law if it in any way contravenes any provision of the 1999 constitution. The 1999 constitution clearly states this in section 1(3) by reading thus:
If any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
This provision of the constitutions clearly buttresses the power of the constitution over every other law in Nigeria.
Concerning the issue of death penalty, the constitution under section 33(1) provides:
Every person has a right to life, and no one shall be deprived irrationally of his life, save in execution of the sentences of a court in respect of ac criminal offence which he has been found guilty of in Nigeria
This provision, in other words means that the 1999 constitution sanctions and supports the pronouncement and execution of the death penalty on deserving offenders by competent courts.
Criminal Code Act
The constitution of the Federal republic of Nigeria, 1999 as amended aptly provides for the death penalty, but it is other statutes such as criminal code Act that specify the various offences for which the death penalty is to be prescribed.
The criminal Code Act squarely apples to the southern region of Nigeria referred to as Southern Nigeria. The Act provides for offences and prescribes punishment for the commission of such offences. Also, capital offences along with its corresponding punishments were also mentioned in the criminal code Act.
Section 49A of the criminal code provides that if, with intent to help the enemy in any war in which Nigeria may be engaged, any person does or attempts to do, any act which is designed or likely to give assistance to the naval, military or air operations of the enemy, to impede such operations of the armed forces of Nigeria or to endanger life, he shall be guilty of felony and shall on conviction suffer death. Simply put, this provision provides the death penalty for any person convicted of committing treachery.
On its part, section 319(1) provides that subject to the provisions of this Section any person who commits the offence of murder shall be sentenced to death. However, the section provides exceptions. Subsection 2 of section 319 provides that where the offender who in the opinion of the court had not attained the age of seventeen years at the time the offence was committed and had been found guilty of murder such offender shall be ordered to be detained at the pleasure of the president and upon such on Part 44 of the criminal procedure act shall apply.
Another exception to section 319 is seen in its subsection 3 where it is said that a pregnant woman who is convicted for murder shall not be executed but the procedure laid down in section 376 of the criminal procedure Act shall first be complied with section 376 of the criminal procedure Act provides inter alia that where a woman convicted and sentenced to death is discovered to be pregnant such conviction shall be changed to life imprisonment.
Another offence provided for in the Criminal Code of Nigeria for which the death sentence is the punishment is the offence of armed robbery2 punishable under section 402(2). While robbery itself attracts life imprisonment, armed robbery attracts the ultimate penalty which is the death sentence.
Penal Code Act
The penal code, just like the Criminal Code Act of Nigeria is another statute which contains substantive laws about offences and punishments. It applies to the region known as the Northern Nigeria which practices the Sharia law/Islamic law in Nigeria.
By section 211 of the penal code Act, Homicide is punishable by death subject to the circumstance mentioned in section 222 of the penal code. Section 22 of the penal code provides exceptions to the punishment of death in the case of capable homicide in circumstances involving provocation, mistake, accident, lawful self-defence, act done in the heat of passion, etc.
Also, section 411 of the penal code provides that whoever commits treason shall be punished with death. Treason on its own means a situation whereby a person levies war against the state, in order to intimidate or overawe the president.
These show among other offence that the Penal Code Act of Nigeria awards the death penalty to some specific offences.