Date Published: 05/26/09

KIDNAPPING: THE FUTILITY OF DEATH PENALTY

BY EMMANUEL ONWUBIKO

Nigeria is currently facing a major crisis of insecurity so much so that forceful abductions or kidnapping, and other organized criminal activities have become rampant and from all indications, the security agencies set up constitutionally to safeguard the security of Nigerians and other global citizens resident in Nigeria have failed to perform optimally.

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As a nation governed by laws, the 1999 Constitution is the supreme body of laws and the provisions of this document are binding on all authorities and persons.

In that connection, section 1(1) of the 1999 constitution provides that;

“this constitution is supreme and its provisions SHALL have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”

Dealing with the all important issue of the fundamental objectives and directive principles of state policy the constitution in section 14(2) (a) and (b) state that “sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority”, and that; “the security and welfare of the people shall be the primary purpose of government”.

The drafters of the 1999 constitution fully understood the implication of the provision that the security and welfare of the people shall be the primary purpose of government which formed the basis for the inclusion of section 214(1) of the constitution which created the Nigeria police force for the maintenance of law and order in Nigeria. Section 217(1) (2) from (a) to (d) provide for the establishment of the Armed Forces of the Federation which will basically have the powers among others to defend Nigeria from external aggression and importantly suppress insurrection and to act in aid of civil authorities to restore order when called upon to do so by the president, but subject to such conditions as may be prescribed by the National Assembly.

The extant Police Act makes it imperative that the members of the Nigeria Police ought to be constitutionally empowered and well equipped to confront all crime and criminalities in the country and to police the country using the law enforcement mechanisms that are human rights friendly to prevent, pre-empt and protect Nigerians from the activities of criminals who have consistently unleashed a reign of violence on the populace. From all available indices since the return of civil political rule in 1999, the police operatives and their respective hierarchies at all levels have failed abysmally in the performance of this very strategic constitutional role of law enforcement which ought to enhance the effective delivery of the services of the protection of lives and property of citizens. From 1999 to date, Nigeria and Nigerians are witnessing what the noble laureate professor Wole Soyinka calls “climate of fear”. In the opening version of the “climate of fear”, the Reith Lectures 2004, by Wole Soyinka, the great writer narrated what most writers and social activists faced during the dark days of military dictatorships in most African countries. He wrote thus; “…the fate of the arts and artists – under the burgeoning trade of dictatorship and governance through a forced diet of fear, most especially on the African continent – in a common parlance, the fear of ‘ the midnight knock’. Arbitrary detentions. Disappearances. Torture as the rule rather than the exception. Even Cynical manipulations of the judicial process, whereby a political dissident found himself in what could be described as a revolving dock without an exit, a Kafkaesque nightmare that had no end except perhaps at the end of a rope, for a crime of which the accused might even be completely unaware”.

But the climate of fear that has pervaded the Nigerian space especially since 1999 is even of more sinister dimension. The fear of the kidnapping gangs which was initially limited to the oil producing Niger Delta communities associated with some armed militants engaged in what they described rightly or wrongly as freedom movement for the economic emancipation of their grossly neglected communities, has spread to virtually all parts of Nigeria so much so that some state Houses of Assembly have hurriedly passed legislations prescribing the maximum imposition of death penalty for the offences of kidnapping and abductions. At the last count, states like Abia, Akwa Ibom, Enugu, Anambra, Imo and Rivers have either passed the death penalty legislations for the offence of kidnapping or are at the concluding stages of making kidnapping a capital offence.

The question that any rational analyst will ask is how effectively deterrent is the imposition of death penalty? Or put differently, will the introduction of death penalty stop the crime of kidnapping from spreading? It is a fact that an overwhelming opinion of the political elites who are at the receiving end of this emerging crime of kidnapping is in support of the introduction of the death penalty for the crime of kidnapping, a key point that the supporters of the death penalty sanction for the crime of kidnapping conveniently forgot is that the imposition of the death penalty have proved not to be effectively deterrent in Nigeria as well as in other countries.

Historically, the death penalty in Nigeria can trace its origin to the penal code applicable in Northern Nigeria which was first introduced as the Federal provisions Act of 1959 (The penal code), and the criminal code Act, applicable in southern Nigeria since 1961 also known as the criminal code. Both codes prescribed the imposition of the death penalty for criminal offences such as armed robbery, treason, murder and culpable homicide.

It may be safe to conclude that the existence of provisions in the two legal codes in existence in Nigeria encouraged the drafters of the extant constitution to permit the use of death penalty in respect of criminal offences of which an alleged offender is convicted by a competent court of law and this provision of the law states in section 33(1) that; “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 offence of which he has been found guilty in Nigeria”. The Black’s law Dictionary, eight Edition by Bryan A. Garner defined the death penalty as; “capital punishment or a punishment that makes a person or entity in eligible to participate in an activity that the person or entity previously participated in. the penalty is usually imposed because of some type of gross misconduct.”

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The incidences of kidnapping in Nigeria which has grown in proportion in recent times have often led to the death of some of these kidnapped persons. The opinion page editor of Thisday, one of the foremost national dailies in Nigeria, Mr. Eddy Odivri lost his beloved father to the activities of dare-devil kidnapping kingpins.

The crime of kidnapping or the climate of fear that pervades in most South Eastern states of the country has scared away potential investors who would have contributed in the economic advancement of those states. Determined to put an end to this seemingly palpable climate of fear, the state governors and their Houses of Assembly have moved to impose the capital punishment. But is it effective? Of course the answer is no. this is so because the death penalty has never stopped the upsurge in violent armed robbery in many parts of the country. What in my thinking will stop the crime of Kidnapping is the effective delivery of democracy dividends; creation of the enabling environment through transparent and accountable political leadership for good governance to take root in Nigeria and for the justice sector to be strengthened and consolidated so that the radically transformed prison facilities would become homes for the character re-orientation and positive transformation of convicts so that they will become good citizens when they are through with their sentences. The extant laws in operation in Nigeria have abundant provisions for the punishment of the crime of kidnapping.

What the state governments, federal government and operators of the nation’s legal system should do is to ensure that persons arrested for the alleged crime of kidnapping are made to face the full wrath of the law. What is in practice in some parts of the country is that parents and rich relatives of alleged kidnappers use their contacts in high places to circumvent and undermine the judicial process so that their so-called loved ones caught in the crime of kidnapping are helped to escape Justice thereby leading to the upsurge in the crime.

Globally, the imposition of the death penalty is no longer acceptable going by the encouraging statistics that more states have abolished the punishment.

According to Amnesty International, 137 countries as at the year 2008 have abolished death penalty whereas only 59 countries including Nigeria still actively practice the death penalty even as the current practice whereby some state Houses of Assembly in Nigeria have introduced the death penalty as the maximum judicial sanction for the crime of kidnapping has demonstrated Nigeria’s unwillingness to comply with the internationally respected human Rights best practices of abolition of the death penalty because any error of judgment the execution of the sentence is irreversible and irreparable. I share the perspective of most members of the United Nations which at its General Assembly of November 1 st, 2007 in a 104-105 vote to which the United States was a primary opponent, adopted a non-legally binding moratorium on the death penalty. The session went thus;

“The General Assembly…Recalling also the resolutions on the question of the death penalty adopted over the past decade by the Commission on Human Rights in all consecutive sessions…in which the Commission called upon States that still maintain the death penalty to abolish it completely and, in the meantime, to establish a moratorium on executions…Considering that the use of the death penalty undermines human dignity, and convinced that a moratorium on the use of the death penalty contributes to the enhancement and progressive development of human rights, that there is no conclusive evidence of the death penalty’s deterrent value and that any miscarriage or failure of justice in the death penalty’s implementation is irreversible and irreparable… Welcoming the decisions taken by an increasing number of States to apply a moratorium on executions, followed in many cases by the abolition of the death penalty;

In any case, if Nigerian legislators in obedience to popular agitation of the Nigerian people feel that the extant legal sanction against kidnapping is not effective, then at most, life sentence with an option of a parole after 25 years in confinement may be introduced as the punishment for kidnapping.