The Constitutionality of Death Penalty: Need to Amend the Law

“NELSON MANDELA would have been hanged in 1964 but for the discretionary power of the judge to substitute imprisonment”

 The death penalty is as old as mankind itself. For thousands of years, it has been applied, as confirmed by the major religious texts, as the ultimate penalty or punishment for crimes as varied as adultery, stealing, murder and treason. Historically and politically, the death penalty and its implementation have helped to shape many events of great significance to the development of mankind.  The story of the French Revolution cannot be told without mention of the Guillotine which became synonymous with the reign of terror introduced by the revolutionaries. In the last century, the hanging, after the end of World War Two of major War Criminals in Nuremburg Germany marked a major turning point in the manner war crimes are investigated, prosecuted and punished.

In Africa, the death penalty prior to the advent of colonial rule was common to virtually all native societies existing across the continent. In several societies, it was applied, along with banishment to signify the society’s disproval of certain behavior or conduct.  The great Zulu King, Shaka Zulu is recorded as having applied the penalty for mostly political reasons. In Nigeria, the death penalty was formally introduced into the statute books upon the enactment of the Criminal Code in Southern Nigeria and the Penal Code in Northern Nigeria. All states in Nigeria have since domesticated the said codes in their laws such that the extant criminal enactment in most states is to be found in the statutes of the said states.

Quite naturally the debate as to the appropriateness or legality of the death penalty has been on for as long as it has been adopted as a means of criminal punishment. This debate has of recent resurfaced in Nigeria following comments credited to the President, Dr Goodluck Jonathan admonishing Governors, who by law are required to sign execution warrants before sentences of death are carried out, to live up to their responsibilities. Some weeks after this, the Government of Edo State announced the execution of some convicts who had been sentenced to death for various crimes and who had exhausted the appeal process put in place by law. The comments of Mr President and the executions that followed attracted criticisms and praise from diverse quarters. Whilst some commended the President and the Governor of Edo State for living up to their oaths of offices, some utilized the opportunity to address what has been termed the abuses to which the death penalty has been subjected worldwide.


I must state without mincing words that the death penalty is legal in Nigeria as the criminal laws of virtually all the states provide thr death penalty for certain offences such as murder as it is known in the southern states and culpable homicide as it is described in the northern states.  Furthermore Section 30(1) of the Constitution of the Federal Republic of Nigeria which guarantees to every individual the right to life makes the right subject to the execution of the sentence of a court recognized by law. The Section provides 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 he has been found guilty in Nigeria.”

Indeed the Supreme Court of Nigeria in Kalu V State 1998 13 NWLR PT 583 531 upheld the legality of the death penalty. In the said case, the Court was asked to consider whether the death penalty was not a violation of the rights of the individual to life and protection from cruel and inhuman treatment as guaranteed by the Constitution. The Court in a judgement delivered by the full complement of the Court held as follows:

…….The position in Nigeria is very clear.  Death sentence is a reality.  It is provided for by our criminal laws including section 319 subsection (1) of the Criminal Code of Lagos State.  Out Constitution also recognizes the death sentence – see in particular sections 31(1) 213(1)(d) and 220(1)(e) thereof.  Therefore, the sentence of death in itself cannot be degrading and inhuman as envisaged by section 31 subsection (1)(a) of the
Constitution.  The Constitution is not intended to approbate and reprobate.”

The most common argument for the continued retention of the penalty is that it deters those who otherwise would have engaged in criminal activity. In response critics have been quick to point to the ever rising crime wave as a sign that the death penalty does not deter anyone. The argument particularly in Nigeria is that the death penalty has not succeeded in stopping the menace of armed robbers and that if anything the certainty of death, if arrested, tried and convicted, often makes armed robbers more deadly and desperate in the execution of robbery operations. In England in the early part of the last century, the death penalty was applicable to most crimes including stealing. Yet crime was on the increase. This led many as is the case now in Nigeria to question the effect of the death penalty as a real deterrence factor. There is also the argument that some incidents of murder, particularly in the case of non-career criminals are not premeditated and often occur as a result of fights or minor scuffle between friends, couples, neighbors or other persons with close affinity. Therefore it is considered inexplicable that the death penalty could be seen as a means of deterring someone from committing a crime which is not premeditated.

However the fact that the number of those who are so deterred by the fear of the penalty is not known or cannot be easily ascertained does not in my estimation detract from the efficacy of the punishment as a real deterrence factor. Surely a person otherwise given to criminal inclinations might well be persuaded to drop his plans when he considers the real risk of losing his life against whatever gain he would achieve from his undertaking.

To be continued.