Justification For And The Abolition Of Capital Punishment Under Human Rights Law

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JUSTIFICATION FOR AND THE ABOLITION OF CAPITAL PUNISHMENT UNDER HUMAN RIGHTS LAW

ABSTRACT

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. Human Rights Law

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. Human Rights Law
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 anti-abolitionist 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. Human Rights Law

 

Table of Contents

CHAPTER ONE

GENERAL INTRODUCTION

1.0      INTRODUCTION

1.1       OBJECTIVES OF STUDY

1.2       SCOPE OF STUDY

1.3       METHODOLOGY

1.4       LITERATURE REVIEW

1.5      DEFINITION OF TERMS

1.6      CONCLUSION

 

CHAPTER TWO

CAPITAL PUNISHMENT AND HUMAN RIGHT LAW

2.0      INTRODUCTION

2.1      PUNISHMENT

2.1.1   FORMS OF PUNISHMENT

2.1.2  COMPENSATION

2.1.3  INCARCERATION

2.1.4  CORPORAL PUNISHMENT

2.1.5  BANISHMENT

2.1.6  CAPITAL PUNISHMENT

2.1.7  OTHER APPROACHES

2.2    HISTORICAL FRAMEWORK OF CAPITAL PUNISHMENT

2.2.1  MODES OF EXECUTION

2.2.2  CRUCIFIXION

2.2.3  STONING

2.2.4  HANGING

2.2.5  SHOOTING OR FIRING SQUAD

2.2.6  GAS CHAMBER OR LETHAL GAS MODE OF EXECUTION

2.2.7  ELECTROCUTION

2.3    WORLD WIDE ANALYSIS OF CAPITAL PUNISHMENT

2.4    HISTORY OF HUMAN RIGHTS

2.5     CAPITAL PUNISHMENT AND RIGHT TO LIFE

2.6.    CAPITAL PUNISHMENT AND RIGHT TO HUMAN DIGNITY

2.7     CONCLUSION

 

CHAPTER THREE

JUSTIFICATIONS FOR CAPITAL PUNISHMENT AND ITS ABOLITION

3.0     INTRODUCTION

3.1     JUSTIFICATIONS FOR CAPITAL PUNISHMENT

3.1.1   JUST PUNISHMENT

3.1.2  DETERRENCE

3.1.3  INCAPACITATION

3.2    ABOLITION OF CAPITAL PUNISHMENT

3.2.1  PROPENSITY TO CONDEMN INNOCENT DEFENDANTS

3.2.2  DISCRIMINATLY APPLICATION ON THE BASIS OF RACE

3.2.3  ARBITRARY APPLICATION AGAINST THE POOR

3.2.4  COMPARING COST TO BENEFITS

3.3     FLAWS IN ARGUMENTS FOR ABOLITION

3.3.1  RACIAL BIAS

3.3.2  RISK TO THE INNOCENT

3.4.0  FLAWS IN THE ARGUMENTS FOR CAPITAL PUNISHMENT

3.4.1   CONCLUSION

 

CHAPTER FOUR

A COMPARISON OF THE NIGERIAN CAPITAL PUNISHMENT TO THAT OF OTHER SELECTED COUNTRIES

4.0    INTRODUCTION. Human Rights Law

4.1    THE NIGERIAN AND U.S.A CAPITAL PUNISHMENT COMPARED

4.2    THE NIGERIAN AND AUSTRALIAN CAPITAL PUNISHMENT COMPARED

4.3    NIGERIAN AND SOUTH AFRICAN CAPITAL PUNISHMENT COMPARED

4.4   CONCLUSION

 

CHAPTER FIVE

CONCLUSION AND RECOMMENDATIONS

5.0    CONCLUSION

5.1    RECOMMENDATIONS

BIBLIOGRAPHY

ARTICLES IN JOURNALS

ARTICLES ON THE INTERNET

BOOKS

CHAPTERS IN BOOKS

Human Rights Law

 

CHAPTER 1

GENERAL INTRODUCTION

1.0.0INTRODUCTION

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 recommendations afterwards.

1.1.0OBJECTIVES 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 afterwards.

1.2.0SCOPE 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.

1.3.0METHODOLOGY

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 is any)

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[1]11 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.

Oba[2] Critically reviewed the notorious Nigerian case of OnuohaKalu Vs The State[3] 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.

Dambazau[4] 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.

They[5] 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 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 scholars[6] 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 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 capital punishment.

This article[7] 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 Shariah and common law, it left out human rights law and the research wasn’t extensive enough.

Richard Burton a Lord Justice of court of Appeal in his article[8] 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 Mohammed[9] analytically showed that the European and Inter-

American Courts have benefitted immensely from individuals and NGO 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 Jordan[11] 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 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

criminal law

There are other definitions but I would like to limit this work to the ones given above to avoid ambiguity.

1.6.0 CONLUSION

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.

[1]Owoade 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.

[4]DambazauA.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

[6]McherifBassiouni and ZiyadMotala (ed), The Protection of Human Rights in African Criminal Proceedings. Dordrecht, 1995.

[7]Yusuf, Abdul Azeez, ‘Frequent capital offences in Nigeria: A Shariah Perspective’ (1998) 7

Kwara Law Review 58.

[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

&2) 201

[10] Glanville Williams ‘Causation in homicide’(1978) The Mordern Law Review, Vol.4, 423.

[11] (1956) CRIM L.R

 

JUSTIFICATION FOR AND THE ABOLITION OF CAPITAL PUNISHMENT UNDER HUMAN RIGHTS LAW

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