Capitalisation of kidnapping offence: Matters arising
Kidnapping is defined by the Black’s Law Dictionary as seizing or taking away (asportation) a person by force or fraud, often with a demand for ransom. Section 269 (a) of the Criminal Law of Lagos State 2011, also punishes kidnapping, where ransom is demanded, with imprisonment for 21 years. The Terrorism Act 2011 also prescribes a 10 year imprisonment for hostage taking, thereby classifying kidnapping as an act of terrorism.
Capitalisation is the process of making certain offences punishable with death penalty. Offences can also be decapitalised, like the drug trafficking offence in Nigeria in 1986. Most offences are capitalised because of the security threat which they pose to the society. However, what constitutes a threat varies from custom to custom, time to time and society to society. The scope of capital offences in some countries is so wide, whilst in others, capitalised offences are few.
Under the Criminal Code, which is applicable in the southern states of Nigeria except Lagos, (Lagos now have the Criminal Law of Lagos State 2011) offences of murder (S. 319), treason (S. 37), treachery (S. 49A), instigating invasion of Nigeria (S. 38) and trial by ordeal resulting in death (S. 208) attract capital punishments. Under the Penal Code, which is applicable in the northern states of Nigeria, death sentence is mandatory for the offences of culpable homicide, (S. 221) abetment of the suicide of a child or insane person, (S. 227) trial by ordeal which results in the death of another, (S. 214B) giving or fabricating false evidence which results in the conviction and execution of an innocent person, (S. 159(2)) and treason (S. 411).
Capital punishment is also prescribed for the offence of armed robbery in the Robbery and Firearms (special provisions) Act (1984), now incorporated into the Criminal Code Act, Cap C. 38, LFN 2004 (S. 402). Apart from the penal laws, the Constitution also recognises the death penalty as a legitimate punishment for capital offences in Section 33. See CFRN 1999 as amended in 2010 and 2011. See also S. 402 of the Administration of Criminal Justice Act 2015, which now prescribes death to be by hanging or lethal injection.
With the official adoption of the Shari’ah Penal Code by some Northern States in Nigeria on the 27th January, 2002, the pre-existing scope of capital offences in Nigeria has been further widened to include certain sexual offences like adultery, lesbianism, and sodomy which were previously punishable with flogging under the Penal Code and the Criminal Procedure Code. Recently, kidnapping has been capitalised in Abia, Imo, Akwa Ibom, Anambra, Ebonyi, Enugu and Edo States. Lagos State is merely trying to follow suit.
A crucial question at this juncture is whether or not the Lagos State lawmakers considered the parametres laid down by the international and regional instruments for the capitalisation of offences before the passage of the bill. Globally, a number of restrictions have been placed on the imposition of capital punishment, in that, it has to be imposed in accordance with the law. The safeguards for the imposition of death penalty are contained in Article 6 of the International Covenant on Civil and Political Rights (ICCPR) Nigeria is a signatory. The safeguards include the reduction in scope and non-extension of the existing scope of capital offences inter alia. The ICCPR, in its bid to ensure a total abolition of capital punishment, provides that the scope should be restricted to the ‘most serious crimes.’ The golden question, therefore, is: what constitute the ‘most serious crimes’?
The first attempt at this definition was in 1984, when the Economic and Social Council of the United Nations, adopted by resolution, the safeguards for the protection of the rights of those facing death penalty. The first safeguard stipulates that the scope should not go beyond intentional crimes with lethal or other extreme consequences. This safeguard should be construed to depict that the offences should lead to loss of life or be life threatening in the sense that death is likely the consequence of the action. Another attempt was made by in Article 4(4) of the American Convention on Human Rights (ACHR) which stipulates that capital punishment shall not be imposed for political offences. The UN Commission on Human Rights, in its Resolutions 1991/61 and 2004/67 also urge all states that still retain the death penalty to ensure that it is not imposed for non-violent financial crimes or non-violent religious practices or expression of conscience.
Consequently, it is doubtful if the offences like apostasy and illicit sex, (capitalised in Sudan) endangering or corrupting the society (capitalised in Libya), embezzlement and other non-violent economic offences (capitalised in China), adultery (capitalised in Yemen and Nigeria) and sex between a non-Muslim male and a Muslim female (capitalised in Saudi Arabia and Sudan) are compatible with the ICCPR and the regional instruments as regards the restriction of capital offences to the most egregious ones.
• Akingbehin is an expert on capital punishment studies and teaches law at the University of Lagos.