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.
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".
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.
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.
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.