Capitalisation of kidnapping offence: Matters arising
Gleaning from the foregoing, one is not left in doubt that the offence of kidnapping which has now been classified as a terrorist act in Nigeria, is life-threatening, and as such, deserving of capitalisation by the lawmakers. However, the distinction between the results of kidnapping is what actually drew the discomfiture of the writer. The writer rather disagrees with the prescription of lesser punishment for kidnappers where the victims come out alive. This is against the backdrop of the fact that kidnapping and armed robbery are kindred offences and they share common features. The writer has not seen, across criminal law statutes, especially in Nigeria, where armed robbery, where death results, attract a higher punishment than where death does not result.
Both kidnapping and armed robbery are personal as well as violent offences. They are also both property offences because the perpetrators dispossess the victim and/or his/her relations of their property, which include money (ransom). The two offences require the use of ammunition or lethal/offensive/dangerous weapon, coupled with threat of, or infliction of actual violence on the victim.
A major difference between the two is that, in armed robbery, the dispossession is immediate and usually contemporaneous with the use of lethal weapon either to kill or instil fear in the mind of the victim, whereas in kidnapping, the victim is held hostage while ransom is demanded. Ransoms are usually paid by third parties in kidnapping cases, whilst in armed robbery, the victim is usually the object of dispossession. Another salient difference is that, while in armed robbery, the use of violence and the use of lethal weapon can be before, during or immediately after the dispossession, in kidnapping, the use of violence or threat thereof, can continue during the pendency of the hostage, until release or death. Consequently, the two kindred offences should really attract the same punishment whether death results or not.
It is the writer’s submission however, that life imprisonment for kidnappers is inadequate as a penal measure for such egregious crime. To be sentenced to life imprisonment does not mean that the convict will spend the rest of his life in the prison. Thus, in the Nigerian case of Ozunloye & 11 Ors v. State, life imprisonment has been interpreted to be for 25 years. In other jurisdictions like South Africa and Israel, the courts have construed life sentence to be for 20 years. The incidence of jail break is also very rampant and there is likelihood of a lifer escaping from the prison.
It has been variously contended by a plethora of scholars on capital punishment studies that there is really no empirical evidence of the efficacy of the penal measure. In jurisdictions where death penalty has been abolished, capital offences did not increase over a spate of time and conversely, jurisdictions that introduced capital punishment for certain offences did not record a decline in the commission of such offences.
The lethargic disposition of the Nigerian Government towards the execution of death sentences is another bane of the process. Nigeria, today, remains a retentionist country but successive state governors over time, have refrained from signing death warrants of convicts who have exhausted their appellate rights and not seeking reprieve. The case of a popular Lagos Pentecostal reverend whose appeal was dismissed over a year ago is apposite. The other time when Comrade Adams Oshiomhole signed death warrants of some condemned prisoners in Edo State, it attracted a barrage of recriminations from the civil society.
In a research conducted by the writer in August, 2015 at the Nigerian Prisons Headquarters, Abuja, it was found that at least 38 condemned prisoners who have exhausted their appellate rights, have been on death row for over 10 years and that one of them had spent above 25 years after conviction and was yet to be executed. Nigeria has thereby become a de facto abolitionist country.
It has been suggested by the writer in various fora that it is the certainty of punishment that is really important rather than the severity. If the punishment is less severe but the chances of apprehension are high, prosecution is sure and conviction and punishment are certain, it will go a long in deterring capital crime commission than when the punishment is severe but the chances of apprehension are matters of predictable rarity, and successful prosecution is highly uncertain.
There is need, therefore, to boost the efficiency of our law enforcement agencies through retraining and empowerment with superior gadgets/ammunition. Our security operatives should also improve on their modern technology skill acquisition. South Africa has recorded a greater success in criminal justice delivery system because there is certainty of apprehension and prosecution through the instrumentality of modern technological devices. It is only if the above recipe is effected, coupled with an atmosphere of a corrupt-free judiciary and a dogged tenacious prosecutorial drive that any penal sanction, no matter how severe, can be meaningful.
It is also suggested that if Nigeria is still desirous of retaining capital punishment as a penal policy, state governors should embark on prompt signing of the pending death warrants. That will reduce drastically the volume of prisoners on the death row and also send signal to potential capital offenders that the capital punishment in Nigeria, is real and not merely cosmetic.
Akingbehin is expert on capital punishment studies and teaches Law, at the University of Lagos.