This is a post from a guest blogger whose personal information is at the end of the writeup for your suggestions and contributions.
Homicide is the killing of a human being. This could however be lawful or unlawful. It is the unlawful specie that the Criminal Code Act (Cap C38, LFN 2004) makes an offence in S. 306 generally while the lawful one is also given the force of law in some specified sections, e.g. S. 254 of the Criminal Code Act on the execution of court sentence. In the same vein, the 1999 constitution of the Federal Republic of Nigeria (as amended 2011) frowns at the violation of an individual’s fundamental right to life save in some exceptional circumstances which may justify such a violation. (See S. 33 of the 1999 Constitution, as amended 2011)
I am concerned in this article most especially with S. 33(2)(b) of the 1999 Constitution as it is from this section that S. 271 & 273 of the Criminal Code Act (which constitute the crux of this article) derive their existence and validity, the constitution being the grundnorm of Nigerian law. For purpose of convenience, the provisions of the aforementioned section of the Constitution are reproduced verbatim:
S. 33 –
(2) A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably necessary:
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained
A detailed explanation paragraph (b) above is contained in Sections 271 and 273 of the Criminal Code Act. The provisions of both sections are supplied below.
S. 271 provides thus:
When a peace officer or police officer is proceeding lawfully to arrest, with or without warrant, a person for an offence which is a felony, and is such that the offender may be arrested without warrant, and the person sought to be arrested takes to flight in order to avoid arrest, it is lawful for the peace officer or police officer and for any person lawfully assisting him, to use such force as may be reasonably necessary to prevent the escape of the person sought to be arrested, and if the offence is such that the offender may be punished with death or imprisonment for seven years or more, may kill him if he cannot by any means otherwise be arrested.
S. 273 provides:
When any person has lawfully arrested another person for an offence, it is lawful for him to use such force as he believes, on reasonable grounds to be necessary to prevent the escape or rescue of the person arrested.
But, if the offence is not one which is such that the offender may be arrested without warrant, this section shall not authorize the use of force which is intended or likely to cause death or grievous harm.
There is no doubt that the provisions of both sections above make homicide justifiable. I can interpret S. 271 to mean that if I am a policeman, and someone commits a crime which is a felony (not just any felony, but one which is either punishable with death or imprisonment for 7 or more years) and considering the nature of the offence he is committing or has committed, I can arrest him without warrant. However, this ‘gentleman’ seeing me tries to run away in order to escape my lawful arrest, S. 271 empowers me to use a reasonable amount of force not to let him escape and I ‘may’ even ‘kill’ him in such a circumstance. S. 273 also justifies a killing subject to the circumstance that such an offender may be arrested without warrant.
A paradigm of the offence envisaged above can be found in S. 159 of the Criminal Code as regards the unlawful importation of counterfeit coin. The section provides:
“Any person who without lawful authority or excuse, the proof of which is on him imports or receives into Nigeria any counterfeit coin whatever, knowing it to be counterfeit is guilty of a felony, and is liable to imprisonment for fourteen years.
A person found committing the offence may be arrested without warrant.”
The issue I have with these two sections is that to what extent do they justify acts which ordinarily would have amounted to murder? From the illustration above, let’s say I decided to kill him (don’t forget the section uses the word “May”) because I’m fully satisfied that other elements (e.g. the offence is a felony, it is punishable with death or imprisonment for more than 7 years, the offender can be arrested without warrant, the offender tries to run away to avoid being arrested) that justify such a killing are in place, does my act not amount to punishing him for that crime despite that he has not been convicted by a court of law, bearing in mind also that S. 36(5) of the 1999 Constitution provides a presumption of innocence until actual guilt is proved? Or does finding a person committing an offence automatically prove his guilt or the fact that he runs away after such a commission? Or put differently, do S. 271 and 273 harbour the presumption that a person caught committing an offence and the run away in order to prevent being arrested is guilty of such an offence?
Furthermore, considering the provisions of S. 36(5) of the 1999 Constitution, what presumption should be imputed on a person caught committing an offence but has not been charged? Again, as a policeman, before pulling the trigger, can’t I imagine there is a possibility that he could be acquitted by the court of law if any of the defences which may be available to him is successfully proved? Or can we safely conclude that S. 33(2)(b) of the 1999 Constitution is in conflict with S. 36(5) of the same Constitution? If it does, how do we resolve such a conflict?
Legal minds and scholars, your contributions will be of immense help. Contributory responses may be forwarded to the email provided below.
Adenekan Abiodun. E
(A 500level Law Student at Obafemi Awolowo University, Ile-ife.)
Mobile no: 08093569558