No alla Pena di Morte - NO to the Death penalty

ONCE again, the controversial and divisive issue of capital punishment or the death penalty for perpetrators of heinous crimes like murder, armed robbery and treason has been revived from the limbo in Nigeria. The issue was provoked by the speculation in 2003 that the National Assembly was within an ace of passing a bill to abrogate the punishment from our statute books.

The speculation may not be unconnected with the passionate appeal of a group of European Union (EU) parliamentarians who visited President Olusegun Obasanjo last year for the removal of the death penalty from the Nigerian penal system. It is also instructive that the United Nations Human Rights Commission and human rights groups like the London-based Amnesty International have, on many occasions, called on countries still exacting the ultimate penalty on their citizens, including Nigeria, to jettison the practice, which they see as outdated, crude, inhuman and ineffective.

Undeniably, capital punishment in Nigeria is recognised by Section 319(1) of the Criminal Code, Cap. 3, Laws of Lagos State of Nigeria. The punishment is also endorsed, in a way, by Section 33(1) of the Constitution of the Federal Republic of Nigeria (1999).

Prior to the latest debate on the death penalty in Nigeria, there had been series of arguments and calls for the review of the penalty in the country. That was during the heydays of military rule. The major events during the period which elicited a groundswell of opinion against the retention of capital punishment include the execution of Mosuru Bello (a condemned armed robber in Oyo State who was made to face the firing squad before the Supreme Court could hear his appeal case), spates of execution of condemned criminals in states like Lagos, the 1998 celebrated case of Onuoha Kalu vs the State on the constitutional validity of death penalty (in which the Supreme Court ruled in favour of the retention of the penalty) and the hanging of the Ogoni activist, Ken Saro-Wiwa and eight others.

Gallows

Admittedly, since the inception of the civilian regime of President Obasanjo on May 29, 1999, the regime has imposed a moratorium or suspension on the punishment of sending criminals to the gallows. This followed the assurance by the regime that it would review the administration of justice in the country, as a result of which it set up a committee to examine the relevance or otherwise of the punitive measure. So far, about 487 condemned persons are on death rows in different prisons in the country.

Meanwhile, public and political opinions are sharply divided on the ongoing debate on whether or not to retain the death penalty in Nigeria. For proponents or supporters of the penalty, the severe measure has a uniquely deterrent force, which no other form of punishment has or could have. In their argument, the fear of being arrested for committing grave crimes like armed robbery and made to face the commensurate gravest punishment would help reduce the rate of the crimes in the society. The apologists of capital punishment also contend that abolishing the punishment would deny the value of the life of the innocent victim and exalt that of the murderer.

For opponents of the death penalty, the pristine argument of deterrence of the penalty is otiose and no longer tenable. This is in the light of the futility of the penalty in stemming the tide of violent crimes, which makes it comparable to flogging a dead horse. Additionally, in the measured words of Olisa Agbakoba (SAN), in the Onuoha Kalu vs. the State, capital punishment is "incapable of correction in the event of an error." The civil rights lawyer referred to the inevitable long wait between the imposition of death sentence and the actual infliction of it, usually called "the death row phenomenon," and dismissed the punishment as a "cruel, inhuman and degrading treatment." Furthermore, it has been found that in countries like the United States, the penalty is targeted at the innocent, the under-age, the poor, the mentally retarded and those not legally well-represented a dismal development that has led to the calls, in some quarters, for the use of DNA testing to determine the authenticity of the guilt or innocence of certain capital offenders.

From the standpoint of this writer, as an exponent of non-violence, capital punishment is unjustifiable and unacceptable. For one thing, human life is so sacrosanct and inviolable and it is only God, the giver of life, that has the inalienable right and control over it. For another, the death penalty, as a mode of punishment, is contrary to the contemporary human rights standards and values and, thus, its continued application in Nigeria would downgrade the status of the country among the comity of democratic nation-states that have, since, expunged the barbaric law from their legal books. Given all this, the penalty should be seen as a human rights scandal, as well as an affront to human dignity and respectability. It is heavy-handed, gruesome, bizarre, retributive, vengeful, degrading and against human decency. Capital punishment gives judges and juries excessive discretion to decree life or death and they impose it so erratically that the result is cruel, unusual and degrading punishment. Thus, all men and women of goodwill should reject and condemn the punishment in all its ramifications since there is no empirical evidence that it serves any penal purpose more effectively than the less severe punishment of imprisonment.

So far, more than 110 countries have abolished the death penalty in law or practice.

This is regardless of the continued infliction of the penalty by the United States, the assumed bastion of democracy and human rights -- a situation that has galvanised international opinion against the country, especially from the UN Human Rights Commission and the European Union (EU) whose member states have renounced and banned capital punishment. For instance, since the end of the Second World War, countries like Italy, Britain, Austria, Australia, Nepal, Canada, Mexico and New Zealand have abolished the death penalty for violent crimes, but have retained it as a deterrence for military or treasonable offences. The post-apartheid South Africa did the same in 1995. In some countries, capital punishment was abandoned de facto. For example, it is never used in some countries and rarely imposed in France (since 1981) and Belgium. In Israel, the execution of Adolf Eichmann, a major war criminal, in 1962, marked the end of an era of application of the death penalty in the Jewish state. More interestingly, Mauritius and Spain abolished the penalty for all crimes in 1995.

The present attitudinal change towards capital punishment around the world is the result, at least partly, of new theories, which suggest that mental and social environment are the major and truly relevant factors in fixing direct culpability or responsibility for crime. With regard to mental health, it is argued that it is only an abnormal or insane person that could commit abominable crimes like murder.

Furthermore, in establishing the causal nexus between violent crimes and social environment, the sociology of crime posits that it is the human society that breeds a criminal. The basis for this paradoxical, sociological approach is the belief, first made popular by Jean-Jacques Rousseau, the 18th century enlightenment philosopher, that man is good by nature, considerate and kindly to his fellow men. If he behaves towards others in a selfish, callous, brutal or even deliberately cruel manner, such aberrant behaviour must be due to societal influences, perhaps to grave provocation and unbearable pressures to which he was subjected. For instance, in a social milieu like ours today, where the majority wallows in grinding poverty and a tiny minority swims in opulence, what can we expect from some of the wretched of the earth whose future is mortgaged to their precarious situations by the corruption and sins of a selected few than fanning the ember of relentless cycle of crime and violence in the country?

Repentance

Again, the main purpose of sending criminals to jail is to subject them to repentance, correctional treatment and re-establishment in normal life as a good citizen. Contrarily, the prison system being run in Nigeria is punitive, rather than reformatory, which further hardens inmates. This is in contradistinction to what is obtained in Western societies where prisons have been transformed into effective instruments for rehabilitation of offenders.

How moral aspirations can outreach themselves can be seen, for example, in the attitude of extreme liberalism to crime and criminality. The lawbreakers have, from time immemorial, been fair game for human sadism. People openly and unashamedly enjoy watching wilfully produced human agony at public executions at the Bar Beach or Ikpoba Hill show. The fact that they were criminals, hence, supposedly, got their just deserts or comeuppance quieted whatever stirring of conscience the spectators might otherwise have felt.

But the process has been carried further to the point where the lawbreaker appears to be fully exonerated as a victim of circumstance -- "more sinned against than sinning," and society is seen as responsible. The judges, the government, the upper classes and even the victims appear as the real culprits.

As it appears now, our Constitution reflects ambiguity regarding the death penalty. On the one hand, it authorises the penalty. On the other, the Constitution guarantees freedom from torture, inhuman and degrading treatment (which connotes capital punishment), in keeping with the United Nations Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment of 1984, Article I (I). The Nigerian Constitution also reflects uncertainty on the death penalty:

Is it meant to avenge a death, which ought to belong to God, the giver of life, or deter crime?

As the debate on the death penalty gathers pace, our civil society organisations (as cut across human rights, religious and educational bodies, the, media, youth and women groups) would have quite a heavy job on their hands. Expectedly, they would assist in the area of sensitising, educating and enlightening the Nigerian populace not only on the crudity, inhumanity and obsolescence of the penalty but also on the failure and futility of the penal measure as a means of deterring violent criminals and infusing social change.

In the final analysis, at a tumultuous time like this in Nigeria when every nook and cranny of our cities and rural areas inspire and despair -- on account of surge in violent crimes - rather than pride, confidence and hope, it is difficult to maintain objectivity and concern for our fellow citizens. But the measure of a country's greatness is its ability not only to retain mercy and compassion in time of crisis but also to overcome evil by good. In repudiating the death penalty from our criminal justice system in this new century when most civilised countries see the penalty as cruel and inhuman, we will be made to recognise the essence of humanity and we will pay ourselves the highest tribute. And a humane and generous concern for every individual's life 'his health and his fulfillment will do more to soothe the savage heart than the fear of state-inflicted death called capital punishment, which chiefly serves to remind us how close we remain jungle. So, to both the state and the individual: "Thou shall not kill".