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. Continue reading