(II)

“NELSON MANDELA would have been hanged in 1964 but for

the judge’s discretionary power to substitute imprisonment”

Last week I began a

discussion of the debate about the propriety of Nigeria’s retention of the death penalty. I concluded last week’s piece with an examination of the argument that the death penalty deters criminals. My view as s stated last week is that it does not even if the number of persons so deterred is incapable of being empirically evaluated.

DEATH PENALTY AS STRONG RESPONSE TO CERTAIN CRIMES

A further argument for the death penalty is that some crimes are horrific and their effects so profound that only the death penalty could indicate society’s disapproval of the conduct of those who committed them. Crimes in this category may include the deliberate extermination of over Six Million Jews by the Nazis during World War Two and for which some major leaders of the Nazi Regime paid with their lives. A further example is that of Timothy Mcveigh the American Terrorist who in 1995 bombed Two Federal Buildings in Oklahoma leading to the deaths of 168 people and injuries to over 600 others. He was executed in 2001. In Nigeria an example that readily comes to mind is that of the Late Lawrence Anini the underworld kingpin who in the 80s terrorised then Bendel State killing numerous policemen. I doubt if anyone could really argue that the crimes ascribed to these persons and for which they paid the ultimate price were horrendous indeed and deserving of a strong reaction from a traumatised society.

DEATH IS IRRVERSIBLE

However despite the arguments for the death penalty, there are some arguments against it which cannot be ignored. Life is sacrosanct. It is a gift given by God. It is like a line connecting two distant points; the points being birth and death. If this line is broken it cannot be reconnected. Therefore it is agreed that death is final and conclusive and incapable of being reversed. What therefore happens where someone is wrongly convicted of an offence, sentenced to death and executed only for facts suggesting or even establishing innocence to be revealed after his death?

As scary or farfetched as the above scenario might sound it is one that has played out in recent history. In 1927 Ferdinando Sacco and Bartolomew Vanzetti were tried, convicted, sentenced to death and executed in Boston, Massachusetts for murder. 50 (Fifty) years later in 1977 the Governor of the State issued a declaration admitting that the duo had not received a fair trial.  In 1953 Derek Beltley was hanged in the United Kingdom for murder. However in 1993 he received a royal pardon which was in 1998 followed by a decision of the Court of Appeal which quashed his entire conviction for murder. The decision was made following evidence establishing his innocence including the revelations that his supposed “confessional statement” had been doctored by Police Officers. James Hanratty was one of the last people in the UK to be sentenced to death for murder. He was hanged at Bedford Gaol on 4th April 1962, after being convicted of the murder of scientist Michael Gregsten, who was shot dead in his car near Clophill, Bedforshire in August 1961. Gregsten’s mistress Valerie Storie, was raped, shot and left paralysed in the same incident.

The ‘Guilty’ verdict was questioned by many who felt the evidence was simply too weak to justify conviction. However, a DNA test in 2002, 40 years after his execution proved beyond doubt that he was innocent of the crime”.

In Nigeria here, some decades back a national daily reported the public execution by firing squad of some persons convicted of armed robbery. As was customary after the first round of shots had been fired at the condemned men, a doctor on hand to certify their deaths moved closer to examine them. To the Doctor’s surprise he found one of them, mortally wounded and barely alive, muttering almost inaudibly. What was however shocking was not the fact that the man was still alive but the words coming out of his lips even as life was draining out of him.  He kept muttering in Yoruba ”iku oro..lai se lai jale!” which can be loosely translated to mean “ oh what a painful death…when I have committed no crime…when I have not stolen!”. Law Students are taught very early on that much premium is placed, in certain circumstances, on statements known as dying declarations, made by persons at the point of death when they have lost all hopes of survival. If applied to the scene described above it is difficult to argue that that particular condemned man was still deceptive when he insisted on his innocence even to the point of death.

Thus because no judicial system is perfect and because obvious cases of miscarriages of justice do occur it has been argued that long terms of imprisonment be made to replace the death penalty in Nigeria and other countries that still retain it. After all if it is discovered that a man has been wrongly convicted he can still be released from prison. The Innocence Project in the United States of America has succeeded in securing the release of numerous persons after they had spent decades in prison.

All considered, I prefer the continued retention of the penalty in Nigeria. I believe strongly that it deters criminals. I also believe that some crimes such as the massacre of innocent Nigerians including Traders from Bodija Market Ibadan, School children in Yobe, Policemen on active duty in Nassarawa and several like incidents deserve a strong message of disapproval which only the death penalty can convey, if imposed upon the perpetrators after their arrest, trial and conviction.

However in acknowledgement of the realities of our time I suggest an amendment to the law to permit Judges, where mitigating circumstances exist, to impose terms of imprisonment rather than the death penalty in capital offences. At the moment Judges do not have any such discretion as the death penalty is mandatory. In 1964 a similar discretion was exercised in favour of a man tried and convicted of sabotage and conspiracy to violently overthrow the government of South Africa. The trial judge rejected the prosecution’s application for the imposition of the death penalty and on the contrary sentenced the accused to life imprisonment. This convict spent 27 years in jail and returned to lead his country through a phase of democratic reforms. That man was Nelson Mandela. This man whom the whole world wishes speedy recovery from his recent health challenges could have been at the end of a hangman’s noose in 1964 but for the discretionary power of the judge not to impose death penalty in appropriate cases.     

AARE AFE BABALOLA SAN CON.

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