Gobir - usman danfodiyo university sokoto, 8:13 am On 10 Oct 2017
A man who was arraign in the court for committing the offence of murder was sentence to death by hanging. The following day, the execution officer following the order of the court go ahead to carry out the execution of the accused person.. after waiting for about 20 minute, he discovered that the accused person have not die yet. on seeing this, he decided to use his gun to killed the accused person. He shot the accused person several times until he died. The execution officer was however arrested for the offence of murder.In his defence, he said he shot the accused person because he didn't die within a reasonable time and there is a very high tendency that the accused might escaped..
The question now is, is he guilty of the offence of murder as charged or not?
For the sake of analysis, the provision of section 33(1) of the 1999 Constitution should be brought to light.
It provides :
"Every person has a right to life, and no person shall be deprived intentionally of his life, save in execution of a sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria."
Now, without any iota of doubt, the question is :
Has the accused not been condemned to death ? The answer is outrightly in the affirmative.
In this wise, he is salvaged to kill the accused person.
However, the trouble some poser is : can he kill in a manner not prescribed on basis of suspicion ?
The answer that comes to mind can only be found, if this other question is answered :
What is the position of the Law with respect to reasonable suspicion in this instant scenario ?
The position of the Law is that the test for reasonableness is an objective one and not a mere subjective view of an individual. That is : would a reasonable man have thought the same way in that circumstances ?
I take solace from the decisions in Toto v. Aweh(2002) 2 NWLR pt.644, 309 @320. & COP v. Obolo(1984)5 NWLR pt.120 @138
To conclude, let us determine the intent of the accused person, the fact reads in part :
...after waiting for about 20 minute(sic :s), he discovered that the accused person have (sic:has) not died yet...he didn't die within a reasonable time and there is(sic :was) a high tendency that the accused might escaped...."
Does it portend a slight reasonableness on the part of the execution officer ? I think the answer is in the affirmative.
However, I wish to bring to the fore the succinct provisions of sections 402 & 403 of the Administration of Criminal Justice Act, 2015 which provide on the hitherto subject thus :
402. (1) Punishment of death is inflicted by hanging the convict by the neck till he is dead or by lethal injection.
(2) Sentence of death shall be pronounced by the court in the following form:
“The sentence of the court upon you is that you be hanged by the neck until you are dead or by lethal injection.”
403. Where sentence of death has been passed the sentence shall only be carried out in accordance with the provisions of this Part.
The most articulate provision to be noted is section 403 thereof.
It may therefore be concluded that the Officer is in infraction of the above section and the pronouncement of the Court.
A line must however be drawn, that :
1. The Court has always adopted a broad and liberal interpretation of a statute (in the stead of a literal and mechanical one) where it rigid application would result in manifest injustice;
2. In order to carry out the general legislative spirit and purpose of the Law, the circumstance of a case is one that determines the construction of an enactment.
Consequent upon this new submissions and the earlier one proffered, I remain opinionated that he is not guilty of murder.