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Keywords: JUSTIFICATION FOR AND THE ABOLITION OF CAPITAL PUNISHMENT UNDER HUMAN RIGHTS LAW
The legal infliction of death as a penalty for violating criminal law has been in
existence from time immemorial, people have been put to death for various
forms of wrong doings and methods of execution have included crucifixion,
stoning, drowning, burning at stake, impaling and beheading. Today capital
punishment is typically accomplished by lethal gas or injection, electrocution,
hanging or shooting.
The human right proponents see death penalties as a violation of the right to
life and human dignity as such countries that are becoming more democratic
are eager to abolish it. The trend in most industrialized nations has been to first
stop executing prisoners and then substitute long terms of imprisonment for
death as the most severe of criminal penalties, about 90 nation have abolished
death penalties and an almost equal number of nations, (most of which are
developing countries in which Nigeria is included) have retained it
This thesis considers the argument for and against death penalty in relation to
human rights, the argument against this concept goes beyond the Human Right
Parlance, as there are other arguments like; the propensity to condemn and
execute innocent citizens, the non-deterrent effect of capital punishment, the
arbitrary use of the concept against the poor, the discriminately application of
the concept on the basis of race, and the ‘lesser argument’ that proclaims that
capital punishment is cruel and inhuman. All these argument have not been
reckoned with by anti-abolitionist, as some of them have come up with other
modes of executions that they believe are more humane and less cruel, the sole
aim of this is to kill the argument of ‘cruel and inhuman treatment’
The retributive nature of the human race would rather love that a murderer be
necessarily paid back in His own coin, this is believed to be the antiabolitionist
main reason for insisting on the retention of death penalty. If the
cost of executing an innocent person and abolishing the concept of death
penalty is compared, it would be discovered that, it is more beneficial to
abolish the use of death penalty than to lose valuable citizens to wrongful
executions. Moreover, countries that have substituted life sentence for death
penalty are not worse off than countries that have retained it.
Justice has long become a relative term as people term incidences that are
contrary to their self will and desires as injustice, the Human nature is very
retributive, its thirst for vengeance is so evident that, States find it difficult to
ignore, until humanity has been raised to greater heights, vengeance will
remain their quest. The concept of death penalty is highly controversial; those
fighting for its retention are majorly fighting for the retributive nature and
interest of Man. Retribution has overridden the concept of rehabilitation in the
criminal justice system. The legality or otherwise of the use Capital
punishment has been deliberated by many constitutional courts and their
resolutions vary from one jurisdiction to another, the variation is so notable
that some States within certain Countries have abolished the use of capital
punishment in their own municipal setting, when same is legal in the country.
This write-up seeks to evaluate the controversies of this concept, and make
1.1.0 OBJECTIVES OF STUDY
The main objective of this study is to critically examine the advent of and
development of the doctrine of death penalty in relation to human right law and
to look into various provisions of the law both local and foreign and to
compare its use in Nigeria to that of other countries, so as to know its effect on
the economy and society at large and to reasonably make recommendations
1.2.0 SCOPE OF STUDY
The scope of this write-up is within the ambits of criminal law, with emphasis
on the fundamental human rights which will be examined under human rights.
This work will cut across Nigerian and some other foreign countries. In fact,
reference will be made to some United Nations Treaties and jurisdiction when
necessary. This work will majorly centre on Nigeria as a country.
This work will be argumentative in nature because of its controversial and
sensitive nature, legal and rational reasoning will be used to bring out various
arguments systematically. Opinions of people will be sought through
questionnaires and personal interviews, legal writings such as text books, law
reports, and internet research tools on contemporary issues of law shall be
examined. Extensive research measures will be put in place to ensure that this
write up is comprehensive enough to combat the present day use of capital
punishment. To enhance the effectiveness and comprehensiveness of this
research, the use of capital punishment by nation will be examined and
compared to the its non-use by certain nations so as to ascertain the
effectiveness of or benefits embedded in the use of capital punishment (if there
1.4.0 LITERATURE REVIEW
There are lots of books and write ups on capital punishment and human rights,
efforts will be made to review some of these books. This review is aimed at
analyzing what has been done by other scholars and to know what has been left
undone so as to contribute my own ideas and findings through
recommendations to this area of law.
Owoade 111 talked extensively on capital punishment, His work covered an
extensive and intelligent definition of the concept, the arguments for and
against it, the mode of executing it in Nigeria, its constitutionality and a
statistical analysis of it, which shows that its’ applicability in Nigeria has not
deterred others as argued by the anti-abolitionist. He however failed to relate it
to human rights, and was too shallow in His discussion of the modes of
executing the death penalty.
Oba2 Critically reviewed the notorious Nigerian case of Onuoha Kalu Vs The
State3 and used the decision of the Supreme Court to address three main issues
namely; the constitutionality of capital punishment in Nigeria, the issue of
prolonged detention of prisoners under death row (death row phenomenon) and
the procedural pitfalls that render important human right cases useless. He was
great at relating capital punishment to human rights but his work was not as
encompassing as it should have been and didn’t exceed the confines of Nigeria.
1Owoade M.A, ‘Capital Punishment in Nigeria’ in Law of homicide in Nigeria, Obafemi
Awolowo University Press Limited Ile-Ife Nigeria, 1990,291.
2 Oba A.A,Capital punishment; the death row phenomenon and the Supreme court of Nigeria,
Lecture Material on Human Rights and Civil Liberties.
3 (1998)12 S.C.N.J 1. See also (1998)13 N.W.L.R. (pt583) 531.
Dambazau4 wrote out the debate on death penalty focuses on Nigeria, made
reference to the state of other countries in relation to the concept, analyzed the
opinions of Elites, and scholars on the issue, argued reasonably and
intelligently for and against the concept, and for every point raised in
justification for it, he had arguments against such justifications. His write up
wasn’t so encompassing as he failed to state his position on the issue, to
critically analyze the concept, and also failed to extensively compare the
Nigerian capital punishment with that of other countries.
They5 stated discussed the Constitutional provisions on pre-trial, trial, and
post-trial rights of the accused, the pre-trial rights include the right to life,
human dignity, liberty and so on, the trial right is the right to fair hearing while
post trial rights refers to the provisions on the treatment of convicted persons in
prison custody. He believes that the extent to which an accused person enjoys
actual protection depends significantly on judicial interpretation of the scope of
4Dambazau A.B,’Pros and cons of Capital Punishment’, Criminology and criminal justice,
spectrum Books limited, Ibadan 1999
5 M. Ayo Ajomo and I.E Okagbue; ‘Constitutional and other Legal provisions on Human
Rights’ Human right and the Administration of Criminal Justice in Nigeria, Nigerian Institute
of Advanced Legal studies,1991,35
the respective rights and that greater prospects exist for the guaranty and
enforcement of the rights of citizens with the criminal justice system under a
democratic system than a military regime. Their work however did not discuss
capital punishment in Nigeria as compared to other states, a world-wide
analysis of it, its mode of execution and a proper relation of the concept to
human right law.
Some scholars6 in their five sections divided book; section A entitled “human
rights in Africa” death largely with the works of The United Nations and the
African commission on Human and peoples’ Rights in the field of criminal
justice. Section B is entitled “country Reports” it consists of fourteen (14)
contributions which are diverse both in content and quality with topics ranging
from an overview of criminal justice system of the republic of Sudan,
prisoners’ rights in Nigeria and South Africa and preventive detention in
Ghana. It lacks recent materials and cases but provides an excellent insight into
the relationship between human rights and criminal justice system in
Zimbabwe and Tanzanian. Section C discusses human rights and education this
6 Mcherif Bassiouni and Ziyad Motala (ed), The Protection of Human Rights in African
Criminal Proceedings. Dordrecht, 1995.
consists of three (3) contributions which are dreadfully uneven. Section D
contains the reports of the conference working groups. These are full of
extremely useful recommendations for developing the role of human rights in
the criminal justice system. Finally section E on ‘Democracy in sub-Saharan
Africa; An overview’ this is a useful look at some of the political and
constitutional changes in Africa brought about by the ending of the cold war.
These write ups however failed to relate human right law to the concept of
This article7 analyses critically, some of the capital crimes in the shariah and
the common law, particularly frequent capital offences in Nigerian experience.
The research demonstrates that there are areas of similarities in the punishment
prescribed for some of the capital offences in the Shariah and common law,
and that capital punishment is a permissible form of punishment, both in the
Shariah and the common law, it also asserts that capital punishment is an
effective deterrent to capital crimes. This work did not exceed the ambit of the
7 Yusuf, Abdul Azeez, ‘Frequent capital offences in Nigeria: A Shariah Perspective’ (1998) 7
Kwara Law Review 58.
Shariah and common law, it left out human rights law and the research wasn’t
Richard Burton a Lord Justice of court of Appeal in his article8 indicated that
the European convention on Human Rights law has comparatively little direct
impact on English rules of substantive criminal law. In those areas where the
convention does indirectly come into play, it will be particularly important to
respect the constitutional procedures provided in the Human Rights Act 1998
to regulate the interactions between convention rights and the domestic law; in
the context of convention rights being rights against the state. The paper sets
out some examples of how the process can be developed. The work only talked
of substantive criminal law and human rights, but no attention was given to
capital punishment and its effect on human rights.
Abdulsalam A Mohammed9 analytically showed that the European and Inter-
American Courts have benefitted immensely from individuals and NGO
8;Richard Burton ‘Human right act and substantive criminal law’ (2000) Criminal law review
Sweet and Maxwell
9 Abdulsalam A Mohammed ‘individual and NGO participation in Human and People’s
Rights: Lessons from the European and Inter-American Courts of Human Rights’, (1999) 43(1
participation in their Judicial processes, they have sometimes relied on
information and viewpoints put forward by such individuals and NGOs in
order to find conclusions of law and facts. In this manner both courts have
availed themselves of a broad range of opinion on the cases that have come
before them, thus leading to well researched opinions that have attracted the
respect of the International legal and Human Right Communities. He
recommends that the African Courts should emulate the examples of both
Courts in order to enhance its own capacity to resolve human right disputes
that will come before it in future. In particular, He advised that the Courts
should be flexible with respect to individual and NGO participation, especially
non-party participation, as this will not only give the courts the opportunity to
have access to wide-ranging legal opinions on some of the issues that will
come before it, but will enable it to serious resource constraints in its work.
Glanville Williams in the write-up,10 discussed the criminal Appeal on Jordan11
where the cause of murder was traced to another set of people and not the stab
gotten by the deceased. This made him examine causations in homicide, he
10Glanville Williams ‘Causation in homicide’(1978) The Mordern Law Review, Vol.4, 423.
11 (1956) CRIM L.R
discussed factual and legal causation, manslaughter by emission, plural
causations intervening more light intention acts, intervention negligent acts and
threw more light on causes of homicides. His work is some shallow as it has
failed to examine some other trivial issues
Articles gotten from the internet seem to be more enlightening and well
researched; they are more detailed recourse will be made to them in the course
of this research.
1.5.0 DEFINITION OF TERMS
WHAT IS PUNISHMENT?
As it is with all law terms, there is no definition that is generally accepted in
law, so there are usually various definitions for a single term and none might
be termed as wrong. This is also applicable to the term punishment. Black Law
Dictionary defines it as
Any fine, penalty, or confinement inflicted upon a person by the authority of the law
and the judgment and sentence of a court for some crime or offence committed by
him or for his omission of a duty enjoined by law.
Capital punishment has been defined as
Execution as a punishment for a person convicted of committing a
crime, or a legal infliction of death as a penalty for violating
There are other definitions but I would like to limit this work to the ones given
above to avoid ambiguity.
An insight has been given on what punishment and capital punishment really
means, its main aim is to deter others from committing the same crime but this
cannot be said to have been attained especially in developing countries like
Nigeria. This work has evaluated the write ups and contributions done to this
field of work and we have discovered that, the controversial nature of this
concept in unending as people still stand death trials. Another issue is the
qualified nature of the right to life, in many countries today the right to live
ceases to exist once a person gets convicted of a crime this is however
unfavourable as there are often instances of miscarried justice.
Keywords: JUSTIFICATION FOR AND THE ABOLITION OF CAPITAL PUNISHMENT UNDER HUMAN RIGHTS LAW