Capital Punishment: Judicially Permissible Or Aviolation Of Human Rights?

INTRODUCTION Capital punishment remains one of the most debated penalties in Nigeria and worldwide. It isalso known as the “Death Penalty. Every year, Amnesty International publishes a report detailing the global use of the death penalty during the preceding year. According to its 2025report, the countries that recorded the highest number of executions were China, Iran, Saudi Arabia, Yemen, and the United States, in that order. ¹

Capital punishment, also known as the Death penalty and formerly referred to as judicialhomicide, is the state-authorized execution of an individual as punishment for actual or allegedmisconduct. The judicial order imposing such punishment is known as a ‘Death sentence’, whilethe process of carrying out the sentence is referred to as an ‘Execution’. The debate surroundingcapital punishment remains one of the most contentious issues in criminal justice, raising legal,moral, and social questions about its effectiveness, fairness, cost, and compatibility with humanrights. While proponents often justify the death penalty on the grounds of deterrence andretribution, opponents question its ability to prevent crime, highlight the possibility of wrongfulexecutions, and argue that it constitutes cruel and inhuman punishment.²

While the United States remains among the countries that continue to apply the death penalty,many nations across the world have moved towards its abolition, either by formally removing itfrom their laws or by no longer carrying out executions in practice. This global movementreflects an increasing recognition of the importance of protecting the right to life. AmnestyInternational reports that executions are now carried out by only a limited number of countries,with the majority of cases concentrated in a few states. The continued decline in the use ofcapital punishment highlights the growing divide between countries that support its retention andthose that advocate for its complete abolition.³

In Nigeria, the death penalty remains legal and is constitutionally recognized as a form ofpunishment for certain offenses. By virtue of Section 33(1) of the Constitution of the FederalRepublic of Nigeria 1999 (as amended), a person may be deprived of life in execution of thesentence of a court following conviction for a criminal offence for which the death penalty isprescribed by law.⁴

The aim of this article is to critically examine the legality and constitutionality of capitalpunishment in Nigeria, exploring whether its continued application is justified as a lawfuljudicial sanction or whether it violates the fundamental human right to life. The article willconsider the legal framework governing the death penalty, judicial interpretations, and humanrights perspectives in determining whether capital punishment remains a permissible form ofpunishment in a modern legal system.

MEANING AND CONCEPT OF CAPITAL PUNISHMENT Capital punishment, also known as the death penalty, refers to the execution of an offender whohas been sentenced to death by a court of law after being convicted of a criminal offence. It is aform of punishment that involves the state taking the life of an individual through a legallyjudicial process.²

Unlike other forms of punishment, capital punishment is unique because it is irreversible. Oncean execution has been carried out, the decision cannot be corrected if it is later discovered thatthe person was wrongly convicted. This irreversible nature of the death penalty is one of themajor reasons it continues to generate debate among legal scholars, human rights organizations,and members of society.

PURPOSES OF PUNISHMENT Capital punishment serves several purposes, including incapacitation, rehabilitation, retribution,and restitution. INCAPACITATION helps to prevent future offences by removing the defendant from society.The aim is to ensure that an offender who poses a serious threat to society is unable to commitfurther crimes. An example is house arrest.

REHABILITATION prevents future crime by altering a criminal's behaviour. Examples includecounselling, vocational training, and educational programmes. The purpose of rehabilitation is toreform offenders and encourage them to become responsible members of society.

RETRIBUTION helps prevent future crime by removing the desire for personal revenge, such asassault, battery, or homicide against the offender. It is based on the idea that punishment shouldbe proportionate to the offence committed and that offenders should face consequences for their actions.

Lastly, RESTITUTION may compensate for loss of money or property, physical injuries, and, insome cases, emotional distress. It may also take the form of a fine. The purposes of punishmentform part of the arguments surrounding capital punishment. While supporters believe that thedeath penalty fulfills the purposes of punishment, particularly retribution and incapacitation,opponents argue that other forms of punishment may achieve these objectives without takingaway the right to life.

LEGAL FRAMEWORK GOVERNING CAPITAL PUNISHMENT IN NIGERIA

The legality of capital punishment in Nigeria is founded on constitutional and statutoryprovisions. Although the right to life is recognized as a fundamental human right, theConstitution provides an exception where a person is deprived of life pursuant to the executionof a court sentence for a criminal offence. Section 33(1) of the Constitution of the FederalRepublic of Nigeria 1999 (as amended) guarantees the right to life but provides an exceptionwhere a person is executed pursuant to a court sentence for a criminal offence for which thedeath penalty is prescribed by law. The Criminal Code Act and other relevant criminal laws inNigeria prescribe certain offenses that attract the death penalty. The main offenses that attract thedeath penalty under the Criminal Code Act include:

1. MURDER : Section 319 of the Criminal Code Act.

2. TREASON : Section 37 of the Criminal Code Act.

3. INSTIGATING INVASION OF NIGERIA : Section 38 of the Criminal Code Act. 4. TREASONABLE FELONY (where the required circumstances exist) : Section 41 of theCriminal Code Act.⁵

The existence of these provisions demonstrates that capital punishment remains a recognizedform of punishment within Nigeria’s criminal justice system. However, the continued existenceof these laws has generated debate as to whether a punishment involving the deprivation of life isconsistent with modern human rights principles. In the case of Kalu v State, the Supreme Courtaffirmed that the death penalty is constitutionally permitted in Nigeria. The decision reflects theposition of the Nigerian legal system that capital punishment is not unconstitutional where it isimposed by a competent court after conviction for an offence punishable by death. ⁶

Furthermore, Article 6 of the International Covenant on Civil and Political Rights (ICCPR)recognizes the right to life but permits the death penalty in countries that have not abolished it,subject to strict safeguards. These safeguards require that the death penalty should only beimposed for the most serious crimes and should follow a fair legal process.⁷

Therefore, whileinternational human rights law encourages the restriction and eventual abolition of capitalpunishment, it does not completely prohibit its use in countries where it remains legallyrecognized, provided that certain conditions are fulfilled.

HUMAN RIGHTS PERSPECTIVE ON CAPITAL PUNISHMENT

The human rights perspective on the use of the death penalty is based on the argument that itconflicts with fundamental human rights principles. It is contended that capital punishmentviolates the right to life, undermines the inherent dignity of the human person, and may amountto cruel, inhuman, or degrading treatment. Those who oppose capital punishment argue that theright to life is one of the most important fundamental rights recognized under national andinternational legal systems. They argue that the state, which has the responsibility to protect life,should not also have the power to take life as a form of punishment. The human rights debatesurrounding capital punishment is also connected to concerns about the possibility of wrongfulconvictions, unfair trials, and the unequal application of the death penalty. Opponents argue thatwhere mistakes occur in the criminal justice system, the consequences of an execution cannot bereversed.

However, supporters of capital punishment argue that the protection of human rights must alsoconsider the rights of victims and the safety of society. They contend that individuals whocommit the most serious crimes may justifiably receive the highest form of punishmentpermitted by law.7

ARGUMENTS SUPPORTING CAPITAL PUNISHMENT The main arguments supporting capital punishment are: 1.

Retribution The simple argument for retribution is that every guilty person should be punished according tothe proportion of the crime committed. It is mostly supported by the phrase, "an eye for an eye." Supporters of this view argue that certain crimes are so serious that only the death penalty canreflect the severity of the harm caused. For example, in cases involving intentional murder, somebelieve that the punishment should correspond with the loss of life caused by the offender.

2. Deterrence Deterrence justifies capital punishment by preventing would-be murderers or future offendersfrom committing murder through the execution of convicted murderers. The concept ofdeterrence is intended to prevent further murders and discourage future killings. The rationalebehind deterrence is that when the consequence of committing murder, namely the death penalty,is known to others, it will deter them from committing the same crime.

Supporters argue that the fear of facing the death penalty may discourage potential offendersfrom committing serious crimes. They believe that the existence of capital punishment serves asa warning to society about the consequences of committing certain offences.

3. Justice for Victims Many people believe that capital punishment serves as true justice. For example, in cases ofmurder, many believe that justice is fully served only when the murderer is sentenced to death.Supporters argue that the families of victims deserve justice and that the punishment imposed onan offender should reflect the seriousness of the harm suffered by the victim and the victim’s family.

4. Prevention of Re-offending Some people believe that when a criminal is executed, it prevents the criminal from committingfurther crimes. They argue that execution permanently incapacitates the offender and protects society from future harm. Unlike imprisonment, where an offender may eventually be released,supporters argue that execution completely removes the possibility of the offender committinganother offence.⁸

ARGUMENTS AGAINST CAPITAL PUNISHMENT The main arguments against capital punishment are: 1. Lack of Deterrent Effect Every year, Amnesty International publishes reports creating awareness of the dangers that thedeath penalty poses to individuals, families, and society at large. Studies show that the deathpenalty is not necessarily more effective than other forms of punishment. In fact, they furthershow that in countries that have abolished the death penalty, the rate of offences committed hasnot increased. For example, in Canada, the murder rate in 2008 was less than half of what it wasin 1976, when the death penalty was abolished.

Opponents argue that there is no conclusive evidence that capital punishment is more effective inpreventing crime than other forms of punishment. They contend that individuals who commitserious offences may not always consider the consequences of their actions before committingsuch crimes, and therefore the existence of the death penalty may not necessarily preventcriminal behaviour.⁹

2. Right to Life Many people believe that human life is sacred and should be protected. Some abolitionists arguethat capital punishment violates the fundamental right to life. They contend that the sanctity of life should be preserved regardless of the offence committed, since humans did not create lifeand therefore should not take it at will. The right to life is recognised under Section 33 of theConstitution of the Federal Republic of Nigeria 1999 (as amended), as an inalienable right.Although the Constitution provides an exception where a person is executed pursuant to a courtsentence for a criminal offence, opponents argue that the continued use of capital punishmentraises questions about the extent to which the right to life should be protected. ⁹

3. Violation of Human Dignity It is argued that capital punishment is often carried out in a cruel, inhuman, or degrading manner.Opponents contend that this violates the right to dignity of the human person as guaranteed underSection 34 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Examplesof methods of execution include hanging, firing squad, and beheading. Those against capital punishment argue that every person possesses inherent dignity, includingindividuals who have committed serious crimes. They believe that taking the life of an offenderas punishment is inconsistent with the principle that human dignity should be respected.¹⁰

4. Execution of Innocent Persons It is argued that the death penalty carries the risk of executing innocent persons. Where a personis wrongly convicted and sentenced to imprisonment, such a person may later be released if newevidence establishes his or her innocence. However, where a person has been executed, thepunishment is irreversible and cannot be remedied. For this reason, opponents argue that nocriminal justice system is completely free from error. In the United States, more than 130 peoplewho had been sentenced to death were later found innocent and released from death row after1973.

The possibility of wrongful execution remains one of the strongest arguments against capitalpunishment because it highlights the consequences of mistakes within the criminal justice system.Opponents argue that a punishment that cannot be reversed should not be applied where there isa possibility of error.⁹

THE NIGERIAN POSITION AND CONTEMPORARY CHALLENGES

Despite the continuous calls for the abolition of the death penalty in Nigeria, the country remainsone of the nations that still retains and recognizes capital punishment as a lawful form ofpunishment. The death penalty is legally prescribed for certain criminal offences and continuesto form part of Nigeria’s criminal justice system. The Nigerian legal position is that capitalpunishment is permissible where it is imposed by a competent court following a conviction foran offence punishable by death. However, the continued application of capital punishment inNigeria continues to generate debate. While some argue that it remains necessary for dealingwith serious crimes and protecting society, others argue that it conflicts with human rightsprinciples, particularly the right to life and the dignity of the human person. Another challenge surrounding capital punishment in Nigeria is the issue of delay in carrying outexecutions. Many convicted persons remain on death row for several years while awaitingexecution or the outcome of appeals and applications for clemency. This has raised concernsabout the psychological effect of prolonged uncertainty and whether such conditions areconsistent with human dignity. Therefore, Nigeria faces the challenge of balancing the need topunish serious offences, protect society, and provide justice for victims while also consideringevolving human rights standards.¹¹

CONCLUSION Capital punishment remains one of the most controversial issues in criminal justice. While it islegally recognised in Nigeria and supported by constitutional and statutory provisions, itscontinued application raises significant legal, moral, and human rights questions. Supporters of capital punishment argue that it serves important purposes such as retribution,deterrence, justice for victims, and the prevention of further offences. On the other hand,opponents argue that it violates the right to life, undermines human dignity, and carries the risk of irreversible mistakes. The debate on whether capital punishment is judicially permissible or aviolation of human rights does not have a simple answer. Although Nigerian law permits its use,the concerns raised by human rights advocates continue to challenge its continued application.

Ultimately, the issue requires a careful balance between the need for justice, public safety, andthe protection of fundamental human rights. The continued debate surrounding capitalpunishment shows the need for ongoing legal and societal examination of whether it remains anappropriate form of punishment in a modern justice system.