Death Penalty Appropriate for Heinous Crimes
Anchored on section 33 (1) of the Nigerian Constitution, read together with section 233 (1) (D) and section 241 (1) (E) thereof, the Supreme Court of Nigeria held in the case of KALU VS. THE STATE (1998) 12SCNJ, 1 that given the qualifying word "save" used in the section, the right to life, although fully guaranteed was nevertheless subject to the execution of a death sentence of a court of law in respect of a criminal offence of which one had been found guilty in Nigeria. That the sentence of death in itself could not be degrading and inhuman as envisaged by section 34 (1) (a) of the constitution, provided that the constitution was not intended to approbate and reprobate at the same time.
And provided also that the manner of carrying out the sentence of death could perhaps invoke the provisions of section 34 (1) (a) of the constitution, as happened in the Zimbabwean case of CATHOLIC COMMISSION FOR JUSTICE AND PEACE, ZIMBABWE VS. ATTORNEY-GENERAL OF ZIMBABWE AND OTHERS (1993) S.A. 239 (Z.S.C)
The current position of Nigeria therefore is that the death sentence is a reality within the frame-work of the foregoing.
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In India, article 21 of its constitution provides that: "No person shall be deprived of his life or personal liberty except in accordance to procedure established by law".
The qualified nature of the right to life in that article was tested in the case of .
SINGH VS. STATE OF PUNJAB (1993) (2) SCR 583, where the Indian Supreme Court held that:
"By no stretch of the imagination can it be said that the death penalty per se or because of its execution by hanging constitutes an unreasonable, cruel or unusual punishment prohibited by the constitution".
The fifth amendment to the constitution of the United States of America refers in specific terms to capital punishment and thereby impliedly recognises its validity. The fourteenth ammendment obliges the federating states not to deprive any person of life, Liberty of property without the due process of law. This impliedly recognises the right of States to make law for such purpose.
It shows that the right to life in the American constitution is qualified. Accordingly, in the case of BREGG VS. GEORGIA 428 U.S. 153 96 SC CT 1976 U.S the U.S. Supreme Court held:
"...We now hold that the punishment of death does not invariably violate the constitution".
It appears that the central focus in the jurisprudence of the United States with regard to the death penalty, and with reference to "the due process of law", is to mount substantive and procedural safe-guards against arbitrariness and discrimination in the imposition or withholding of the death penalty. Other than that the Federal constitutionality of the death sentence for murderer as a legitimate form of punishment in the U.S. is now settled, having regard to the qualified nature of the fundamental human right to life in its federal constitution.
In contrast to the foregoing position in Nigeria, India and the U.S., the right to life under S.9 of the South African constitution is unqualified. Consequently, the Supreme Court of the country held in the case of THE STATE VS MAKWANYANE AND ANOTHER (1995) (6) B, C, L, R, 665 (CC) that the death penalty violated the constitutional protection of freedom from cruel, inhuman and degrading treatment preserved under section 11 (2) of their constitution, and was in consequence, invalid and unconstitutional.
Similarly, section 54 (1) of the constitution of the Republic of Hungary provides:
"Every one has the inherent right to life and to human dignity and no one shall arbitrarily be deprived of this right".
The death sentence is here considered as an arbitrary deprivation of life, because the right to life is clearly unqualified.
Consequently in the Hungarian case of JONES VS. WITTENBERG 33 FSUPP 707 it was held that the death penalty was unconstitutional because of its inconsistence with the right to life and to human dignity under section 54 of their constitution.
When a person is sentenced to death, the question of bail for him pending execution does not arise, otherwise than providing for him an escape route. Rather he must be kept in custody for the final day. The waiting period in order to get the hangman for the execution, and in order to exhaust all chances of appeal proceedings is called in judicial parlance, the Death Row.
In most cases the duration and condition under which convicts on death row are kept often gives ground for the arguments by Human Right groups that the death sentence is inhuman, and degrading.
However, the position of the law in most jurisdictions of the world is that "inhuman and degrading treatment" outside the inevitable confinement in death row will not make illegal the death sentence, rather it only gives ground for an enforceable right under the constitution of any given country. For instance in Nigeria, such right is enforceable under section 46 (1) and (2) of the 1999 constitution.
In other words, though nothing is more than death, if after death sentence has been passed and the convict is in prison custody anything arises outside the normal custody that amount to torture or inhuman, or degrading treatment, that will be a cause of action under fundamental rights but not militating against the sentence of death. In such a case the death sentence stands, but a new cause of action under fundamental rights but not militating against the sentence of death. In such a case the death sentences stands, but a new cause of action has arisen and can be separately enforced and remedied.
Such action predicates on the principle that a convict having been kept in death row for a prolonged period of time after the sentence of death by the trial court would have gone through such mental anguish and torment in the intervening period such as to expose him to torture, inhuman and degrading treatment. Especially given such confinement in the so-called "condemned cells".
However, whether a particular form of punishment or confinement goes beyond standard of decency must be answered strictly in the context and particular circumstances of the concerned country.
The ideological, intellectual as well as empirical arguments against the death penalty by Human Rights Organisations whether or not those arguments are valid are arguments for the legislature or other law making organs of the state for their guidance and appropriate action.
It is imperative to state however that the abolition of the death penalty is a very weighty matter involving policy where decision should be a function of conscious and deliberate act of the highest policy formulating and law making organ of the state involving, where feasible, the opinion of the people in a referendum. The eventuality of self-help and revenge-killing in the wake of dismay and disillusion at the abolition of the death penalty should not be under-estimated.
In any event, it is not the function of the court to apply the canon of interpretation to invalidate a valid and legal legislation for the only reason that such a Legislation is not in tune with its social thinking or is not liked by a fractional section of the humanity.
No matter how such interpretation is inspired by whatever humanitarian considerations, it would be a flagrant incursion by the judiciary into the domain of the legislature, and would amount to stretching judicial creativity beyond bounds. The doctrine of separation of powers should therefore be observed.
The courts would only do that when such laws are attacked by due process of law on grounds of unconstitutionality, illegality, arbitrariness or the like.
Conclusion:
While the validity or otherwise of the death penalty is part of contemporary criminal jurisprudence, depending on the constitutional provision on the right to life, a state that wishes to retain it must accept the responsibility to ensure that execution follows as swiftly as practicable after sentence, allowing a reasonable time for appeal and consideration of reprieve (prerogative of mercy) by the Executive. That way, the basis of the sustained agitations by Human Right Organisation against it would have been eliminated.
