Death Penalty Appropriate for Heinous Crimes
The first case of murder in human history is contained in Holy Bible, Genesis chapter one verses 1-5, and Holy Quran chapter five verses 30-34.
According to the two Holy Scriptures, Cain or Qabil was the elder brother of Abel or Habil. The former was a farmer while the latter was a herdsman. Both of them made offerings to God. In doing that, Cain restrained his hands by offering his deficient produce. Abel on the other hand offered the best of his herd and milk.
For acting malafide, God did not accept Cain's offering. He however accepted Abel's offering for acting bonafide.
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Arising from the foregoing are some contemporary maxims of Equity, to wit: Where two equities are equal, the first (best) in time prevails; He who comes to Equity must come with clean hands; He who wants equity must do equity; Equity aids the vigilant not the indolent.
Guided by these equitable maxims, Cain neither did equity to God, nor approached God vide his offering with clean hands and mind. Neither was he vigilant about God's eventual reaction to his offering. Abel however fulfilled all the requisites for the acceptance of his own offering. God accepted his offering and rejected Cain's offering.
But instead of Cain assessing himself and accepting his own folly, he nurtured envy and hatred against his brother to the extent that he killed him premeditatedly.
God tried Cain by arraigning him and revealing his offence to him. Cain first denied, then admitted in the face of proof beyond reasonable doubt, and finally pleaded for mercy, as in Allocutus.
At the end of his trial, God did not kill Cain in return for his offence. He only sentenced him to hard labour on earth, as in imprisonment. Perhaps arising from Cain's plea for mercy, and perhaps in other not to deprive Adam of the remaining of his two sons.
God's mitigative sentence in Cain's case gives credence to contemporary jurisprudential theory that the surrounding circumstances of a particular case should rather dictate the judicial action thereto. Consequently, copy-cat approach in the form of one jurisdiction or decision being a Delphic-Oracle to the other may not help in ensuring equitable justice.
In addition to sparing the life of Cain, God restored Adam to his original position by giving him another son called Seth. Thus giving justification to the contemporary equitable remedy of restitution to status quo ante
Besides the forgoing, the killing by Cain had all the trappings of contemporary criminal jurisprudence, as in his criminal responsibility which was satisfied by his maturity, sanity, premeditated intention to kill (Mens Rea) and the actual killing (Actus Reu).
After the first incident of murder, human society, and causes of conflicts and killings became more complex and sophisticated. From the original envy and hatred of Cain, the causes degenerated to greed and sheer wickedness.
Given the absurd metamorphosis, law as a product of society must of necessity change with the society. Otherwise, it would lose its character as a tool of social equilibrium and social change, thus engendering chaos. On this principle predicates the contemporary criminal law administration with particular reference to the death penalty in various world jurisprudence.
This essay is intended to be a bridge between the ends of justice as it relates to crimes punishable with death, and the arguments of certain interest groups especially Human Rights Organisations on the execution of the death sentences.
There are widespread beliefs and arguments that the death penalty is cruel, inhuman, degrading, and therefore violates the constitutional right to life and dignity preserved in the constitutions of various countries.
An idea of what is rather viewed as 'death by ordeal' is contained in an article written by Professor Chris Barnard published in the South African Newspaper Rand Daily Mail of June, 12th 1978 thus:
"The Man's spinal cord will rupture at the point where it enters the skull, electro-chemical discharges will send his limbs flailing in a grotesque dance, eyes and tongue will start from the facial apertures under the assault of the rope and his bowels and bladder may simultaneously void themselves to soil the legs and drip on the floor..."
The 1999 constitutional of the Federal Republic of Nigeria, for instance preserves the rights to life and human dignity in its sections 33 (1) and 34 (a).
At the same time, it recognises death sentence under the same section of the constitution, read conjuctively with sections 233 (2) (d) and 241(1) (1) (e) thereof.
Article 1 (1) of the International Instrument: the convention against Torture and cruel, inhuman and degrading treatment' to the effect that they do not include "pain or suffering arising only from, inherent in, or incidental to lawful sanctions'.
The death penalty is recognised and sanctioned in many common law jurisdictions and by the constitutions of many common law countries.
For instance, the ordinary laws of Nigeria even as far back as 1863 especially - the Criminal and penal Codes, as well as some other military legislations prescribe the death penalty for certain capital offences like murder, treason and treasonable felony, armed robbery occasioning death and aiding foreign invasion.
In Nigeria therefore the death penalty is constitutional and does not per se amount to torture, inhuman or degrading, treatment, prohibited by section 34 of the constitution. It is a reality as a balance.
Shorn of procedural abuses, the death penalty, helps to preserve equilibrium in the society by providing a measured and appropriate response to heinous and barbarous criminal acts that threaten the moral foundation of that society. It is in this perspective that the view is held even in the United State of America with all its claims to moral sophistication that the death penalty is not intrinsically unconstitutional.
The fact remains that much as the victim of a murderous assault is entitled to life, so also is the murderer liable to death for his deed, otherwise the lives of others will be shortish, brutish and nasty. Thus, not up to 10% of the sovereign National of the world have abolished death sentence.
In any case abolition of the death sentence is not an indication of civilization, rather in some cases it is based on historical circumstances, or political expediences of some countries. Consequently, notwithstanding the weight and myraid of international jurisdictions, and the judicial decisions of other common law jurisdictions, courts should accord as it were due weight to the peculiar circumstances, the generally held norms of society and values, aspirations and local conditions. There should be no copy-cat syndrome.
The test for the validity or otherwise of the death sentence lies in the provision of the constitution of the country concerned.
If in the constitution the right to life and human dignity is qualified, then the right becomes a derogable right thus leading to the validity of the death sentence provided that the due process of law is observed. If on the otherhand, the right is unqualified in the constitution, then it becomes an absolute and non-derogable right thus making the death sentence contradictory to the constitution, and to the extent of that contradiction it becomes unconstitutional, null and void.
This validity test is akin to the position of Human Rights Committee of the United Nations vide article 6 of the International convention, and also article 2 of European convention on Human Rights. The cases of KINDLER VS. CANADA (1992) 6 CRR (2ND) 193 (SSC); and SOERING VS. U.K. (1989) 11 EHRR 439 are reflections of the position of the two conventions.
From the foregoing therefore, the validity or otherwise of the death penalty predicates on the constitutional provision on the right to life of any given jurisdiction. If the right to life thereunder is qualified, as in Tanzania, Zimbabwe, India, United State of America, Nigeria and the Caribbean countries, then it becomes a derogable right, which makes a bonafide death sentence valid. If on the other hand, the right is not qualified as in South Africa and Hungary, it becomes absolute and non-derogable, thus making any death sentence thereunder invalid for reason of unconstitutionality.
In Nigeria, section 33 (1) of the 1999 constitution provides.
"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 offense of which he has been found guilty in Nigeria".
The rider to the above constitutional provision is section 34 (1) (a) which provides:
"Every individual is entitled to respect for the dignity of his person, and accordingly no person shall be subjected to torture or inhuman or degrading treatment".
