In our last discussion, we explained that the rights provided under Chapter IV of the 1999 Constitution (as amended) are justiciable (enforceable). These rights were listed. We shall discuss the rights in some details in relation to other laws created to ensure that they are protected; taking cognizance of the fact that the constitution is the basic law of the land forming the basis for other laws.
RIGHT TO LIFE
It is a popular saying that life is sacrosanct. The law recognizes this and ensures that it is protected. Section 33 of the Constitution provides for right to life to the effect that a person shall not intentionally be deprived of his life except in execution of court sentence when the person is found guilty of an offence. The court sentence here refers to death sentence in respect of capital offences. In Nigeria, such offences include murder, armed robbery, and treason punishable with mandatory death sentence. Therefore, a person cannot be said to have violated this right if he executes such a convict in accordance with the law. Thus, where A is convicted by a court of competent jurisdiction (power and authority to so do) and B is mandated to execute A being a member of the firing squad, B cannot be said to have committed the crime of murder by such execution of A.
Exceptions to right to life include where the killer acted in self-defense; in the process of effecting a lawful arrest or to prevent escape from lawful detention or for the purpose of suppressing a riot, insurrection or mutiny. In all these, what is considered is whether the person taking another person’s life acted reasonably in the circumstance. In Ibikunle v State (2007) 12 MJSC 184, a police officer who fired into a room in the process of trying to effect arrest of a supposed armed robber, killing one of the occupants mistaken to be the robber, was convicted of murder on the ground that the use of force was not reasonable under the circumstances.
Exceptions to right to life include where the killer acted in self-defense; in the process of effecting a lawful arrest or to prevent escape from lawful detention or for the purpose of suppressing a riot, insurrection or mutiny. In all these cases, what is considered is whether the person taking another person’s life acted reasonably in the circumstance. Section 33:1, 2 (a-c) of the Constitution as amended. In Ibikunle v State (2007) 12 MJSC 184, a police officer who fired into a room in the process of trying to effect arrest of a supposed armed robber, killing one of the occupants mistaken to be the robber, was convicted of murder on the ground that the use of force was not reasonable in the circumstance.
The offence of homicide is created to protect the right to life. Homicide means the unlawful killing of a human being; in other words, killing a human being in a way not authorized, justified or excused by law. Under the Penal Code, operating in the Northern states, it is known as culpable homicide. Section 315 of the Criminal Code which is operational in the Southern states provides for the offence of homicide to the effect that “any person who unlawfully kills another is guilty of an offence which is called murder or manslaughter, according to the circumstances of the case. Section 220 of the Penal Code which is on all fours with 315 of the Criminal Code, generally provides for the offence of culpable homicide.
Homicide is made up of two different offences, namely, murder and manslaughter (under the Criminal Code) or culpable homicide punishable with death and culpable homicide not punishable with death (under the Penal Code). In other words, while murder is equivalent to culpable homicide punishable with death, manslaughter is equivalent to culpable homicide not punishable with death. While the former is a capital offence punishable by death, the latter is punishable by life imprisonment.
MURDER (CULPABLE HOMICIDE PUNISHABLE WITH DEATH)
Section 316 of the Criminal Code states that a person who unlawfully kills another under any of the circumstances outlined in the section is guilty of murder while sections 221 of the Penal Code provide for the circumstances where culpable homicide is punishable by death. The ingredients of the offences in both provisions are similar.
For a person to be convicted of murder or culpable homicide punishable with death, the prosecution must prove beyond reasonable doubt the following elements of the offence:
- That the deceased died
- That it was the act or omission of the accused person that caused the death of the deceased
- That the act or omission of the accused which caused the death of the deceased was intentional with the knowledge that death or grievous bodily harm was its probable consequence.
See Fatai v, State (2013) 2-3 MJSC (Pt. I) 145 at 170-171; Ochiba v State (2011) 12 S.C. 79 at 96; Iliyasu v, State (2015) 2 MJSC (Pt. II) 33 at 60,89,90,94
This is captured in the Latin maxim; “actus non facit reum, nisi mens sit rear”. The prosecution will not only establish that the action of the accused led to the death of the deceased, but also the common intention of the accused to commit the said offence of murder or culpable homicide punishable with death.
Establishing the death of the deceased is usually the simplest task by the prosecution. This can be proved by a medical report, pictures and or oral evidence. Circumstantial evidence can also show the death of the deceased. The death of a person can be proved even though the body is not found. See Abukokuyanro v State (2016) 2-3 MJSC 106 at 126.
The cause of death must also be established, that is, that it was the act of the accused that caused the death of the deceased. This onus on the prosecution can be discharged either by direct or circumstantial evidence. It follows, therefore, that where A is accused of killing B, it must be established by direct or circumstantial evidence a link between the acts of A and the death of B. See Jimoh v State (2014) 3 MJSC 1 at 44.
Direct evidence is the evidence of an eyewitness who testifies to the effect that it was the accused who killed the deceased. Circumstantial evidence, on the other hand, is inferred from the circumstances of the case which unequivocally link the accused with the murder of the deceased. In Iliyasa v. State (supra), the Appellant and the deceased were involved in an argument over some money. Both of them passed the night in the Appellant’s room. The following day the deceased could not be found. Blood was seen splashed on the walls of the Appellant’s room and a dead body, which turned out to be the body of the deceased was found half buried in his compound. The appellant had also purchased some gallons of paint to cover the splashes of blood on the walls. This was held to be enough circumstantial evidence that the accused killed the deceased. This is also a good example of the doctrine of last seen, which is applicable in our criminal law, to the effect that a person last seen with a deceased is presumed to be the killer and has the responsibility to give an explanation on how the deceased met his death. In some cases, medical evidence is necessary to establish the cause of death, but where the cause of death is obvious, medical evidence becomes of no practical necessity. See Amayo v. State (2002) 3 MJSC 181 at 194; Aiguoreghian v. State (2004) 3 MJSC 18171 at 101-102.
It is the responsibility of the prosecution to establish a clear nexus between the act of the accused and the death of the deceased in the absence of which the charge of murder cannot be sustained. It is not enough to say that the act of the accused could have caused the death of the deceased, but that it actually caused the death. See Alao v. State (2015) 5 MJSC 35 at 57 where the Supreme Court held that where there is any intervening factor as could create some doubts on the actual cause of the death of the deceased, such doubt created must be resolved in favour of the accused. Thus in Oketalegun v. State (2015) 7 MJSC 128, the deceased did not die immediately after the assault by the accused, but later in the hospital and the doctor’s report showed the cause of death to be a medical condition caused by diabetes and hypertension. Conviction of the accused was mitigated to attempted murder on appeal.
After proving the death and act of the accused as the cause, the prosecution now has the task of proving the all important mental elements, to wit, intention of the accused to cause death or grievous harm (the mens rea).In other words, it must be shown that the accused wilfully did the act knowing that death or grievous harm could result from it. This is known as specific intention and the most difficult element to prove. See Amayo v. State (supra) at 195. If the act was done involuntarily, accidentally, negligently or recklessly, it will not amount to murder. Because it is not possible to know the heart of man, intention is inferred from overt act. If a man stabs another in the chest with a dagger, it will be inferred from the act that he intended to kill him or at least to cause him a bodily harm. In Ogbu v State (2007) 2 SC 274, the Appellants who, in the course of a fight, lifted the deceased by the legs and hit his head on the ground which led to his death, were held to have the intention to kill him. But in Kumbin v. Bauchi Authority (1963) NNLR 49 a slight blow which caused death due to a medical condition unknown to the Appellant was held not to have been intended to cause death or that it was likely to cause it and the conviction of the Appellant for murder, reduced on appeal to manslaughter, was further reduced to the lesser offence of causing death when intending to cause hurt only.
Section 316 of the Criminal Code and section 221 of the Penal Code sate the circumstances under which killing will amount to murder.
It is only a human being capable of being killed whose death can constitute the element of murder. A child becomes a person capable of being killed when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not. See S. 307 of the Criminal Code. Therefore, the belief of some religious adherents that abortion is murder does not apply here. Abortion is a different offence.