The death penalty is a concept most talked about and debated in the criminal Justice System of any legal Jurisprudence, the Nigerian legal Jurisprudence inclusive. The use of the death penalty as a means of punishing offenders extends to the beginning of recorded history. In the early, days, the death penalty was employed in variety of offences such as murder, espionage, treason, rape, adultery, incest, sodomy and even peace settlements.
The ancient republics, monarchies and tribal oligarchies had a unified system of justice which formalized the relation between the different classes of royalty, nobility, commoners and slaves. The earliest and most famous example is the “code of Hammurabi” which set the different punishment and compensation according to the different class of victims.
The “Torah” under the Jewish Law also known as “Pentateuch” also lays down the death penalty for murder, kidnapping, magic, violation of the Sabbath, blasphemy and a wide range of sexual crime. The death penalty was also found in ancient Tang China in cases of corruption, where the victim is scourged to death with a thick rod, and truncation, in which the convicted person was cut in two at the waist with a fodder knife and left to bleed to death.
Other early forms of death penalty included breaking wheel, boiling to death, flaying, slow slicing, disembowelment, crucifixion, impalement, crushing (including crushing by elephant), stoning, execution scaphism, necklacing and blowing from a gun.
Under the African traditional society, the death penalty was rarely used, only in cases peace and security of the community, and the community felt otherwise unable to cope with the problem. Offences such as murder, witch craft, profaning the gods or spirit and repeated thefts, could all give rise to the death penalty. However, most traditional societies preferred to employ banishment as an alternative to death penalty.
At the introduction by the British of the criminal and penal codes, both of which are based upon the common law principles, which contain a number of capital crimes, the death penalty was prescribed for a range of criminal offences. Under the criminal code (which was the Criminal Code Act applying in Southern Nigeria of 1961), murder, treachery, treason and participating in a trial by ordeal resulting in death, attract death penalty.
The northern Penal code (which was the Penal Code Federal Provisions Act of 1959 applicable to the northern states) includes additional capital offences such as giving false evidence in a trial which leads to the execution of an innocent person, abetting the suicide of a minor, a mentally abnormal or drunken person, and in the case of a person already serving a life sentence, attempting to commit culpable homicide, sodomy, adultery, apostasy, rebellion and highway robbery.
Under the Nigerian Criminal Jurisprudence, today, the death penalty is provided for under section 33(1) of the 1999 constitution which states that-
Every person has a right to life, and no one shall be deprived intentionally of his life save in execution of the sentence of a court in respect of a criminal offence of which one has been found guilty in Nigeria.
Recently, kidnapping has been added as a capital crime in most states. The Imo State House of Assembly passed a bill on May 4, 2009 providing for the death penalty for anyone convicted of kidnapping or whose premises are used by a kidnapper to hold someone. Under the Sharia Law, death penalty can be applied for sexual crimes.
From above, it follows that the constitutionality of the death penalty is not in doubt. However, there has been a national debate on the death penalty issue on the basis that it encroaches on the right to life. While many argue for its retention, others argue for its abolition and till this day, this argument is far from being settled.