LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017.

DEATH PENALTY ON PREGNANT WOMEN; A DOUBLE JEOPARDY

By
Peter AnichebeOkakpu
LL.B. (NnamdiAzikiwe University), B.L.
Associate, SafianuSalehGadau& Co.
peterokakpu@gmail.com

ABSTRACT
Before now, a pregnant woman was regarded as vulnerable and therefore belonged to the
category of persons upon whom death penalty could not be pronounced. The exemption of a
pregnant woman from death penalty is consistent with the jurisprudence that the forbearance
of a sentence of death on her is for the benefit of the unborn child. However, this exemption
has been eroded by Administration of Criminal Justice Act 2015 and other recent laws in
Nigeria. This article therefore decries the said erosion in the face of a continued
condemnation of death penalty as a form of punishment. The article is broadly divided into
four parts; Introduction, Death Penalty; a Jeopardy, Death Penalty on Pregnant Women; a
Double Jeopardy and Conclusion. The author considers the position of the law prior to the
radical u-turn and concludes by recommending a reversal of the position to the status quo
ante bellum and the adoption of a more proactive sentencing.
KEYWORDS: Death penalty, Capital offence, Pregnant women, Nursing mother, Unborn
child.

INTRODUCTION

Death penalty is the pronouncement of the sentence of death on an offender who has been
declared guilty of a capital offence by a court of competent jurisdiction1. Death penalty is
also referred to as a capital punishment2 in some instances.

In Nigeria, generally, for a convict to attract the death penalty he/she must have committed a
capital offence such as; treason, murder and armed robbery. However in the northern parts of
the country, offences like culpable homicide, abetment of the suicide of a child or insane
person, trial by ordeal which results in the death of another, giving or fabricating false
evidence which results in the conviction and execution of an innocent person, adultery,
sodomy, lesbianism and rape3 attract the death penalty. While in the southern parts of
Nigeria, murder; treason; treachery; conspiracy to commit treason; instigating invasion of
Nigeria; directing and controlling or presiding at an unlawful trial by ordeal which results in
death4 attracts the death penalty. Kidnapping has also been added to the long list of capital

1
Duru, O. W. C., “The Constitutionality of Death Penalty under Nigerian Law”
<https://www.academia.edu/5185442/THE_CONSTITUTIONALITY_OF_DEATH_PENALTY_UNDER_NIG
ERIA_LAW> accessed 25 July 2017 at 4:30 pm.
2
Thus, capital punishment was defined as „death imposed as a punishment for crime‟ by O.W.C Duru. Ibid.
3
See Kano State Sharia Penal Code 2000 for example.
4
See Criminal Code. See alsoDuru, O. W. C., “The Constitutionality of Death Penalty under Nigerian Law”
<https://www.academia.edu/5185442/THE_CONSTITUTIONALITY_OF_DEATH_PENALTY_UNDER_NIG
ERIA_LAW> accessed 25 July 2017 at 4:30 pm. See also Akingbehin G., “Nigeria: Capitalisation of
Kidnapping Offence – Matters Arising” <https://allafrica.com/stories/201701160789.html> accessed 28 July
2017 at 3:50 pm

35
 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017.

offences by Abia, Imo, AkwaIbom, Anambra, Ebonyi, Enugu, Edo and Lagos States of
Nigeria.5

In Nigeria, death penalty is a constitutionally permissible form of punishment by virtue of

Sections 33(1) and 34(1)(a)of the Constitution of the Federal Republic of Nigeria
(CFRN) 1999(as amended)6. This has remained the position notwithstanding the fact that
there has been and there is still an ongoing heated argument between the abolitionist and
„retentionist‟ schools of thought on death penalty.

Be that as it may, the fact that the laws in place, both domestically and internationally7
prohibit the proclamation of death sentence on pregnant women is a clear indication that
pregnant women are exempted from it. Therefore, it becomes quite surprising that despite all
these, the Administration of Criminal Justice Act 2015 extended this penalty to the pregnant
woman not minding her vulnerable position.
DEATH PENALTY: A JEOPARDY

Death penalty is condemnable. It is inhuman and degrading no matter the offence it is

pronounced to punish.8This is because it involves by its very nature, a denial of the convicted
person‟s humanity. It is degrading because it stripes the convicted person of all dignity and
treats him or her as an object to be eliminated by the state9. Right from the moment he enters
the condemned cell to the point of execution, the prisoner is enmeshed in a dehumanizing
environment of near hopelessness. He remains in the cell as a place of preservation of his life
so that the same life will be taken away. He practically lives each day in morbid fear. Each
time a fellow prisoner is taken away to be executed, there is renewed anxiety, but he must
live each day under this menacing shadow of death10. According to OkparaOkpara;

‘The death penalty is abhorrent to civilized sentiments. It is both an inhuman and a

degrading punishment that denies a person his status as a human being and it is in conflict
with the right to human dignity. It is inhuman to terminate human life by killing. The fact that
it is inflicted as a punishment for crime does not make it less so. Death is a denial of a
person’s humanity because it destroys his very existence, with all the rights inherent in
human existence, including the right to relief where conviction and sentence have been
wrongfully imposed. The process of carrying out a death sentence with the untenable long
wait between the imposition of sentence and the actual infliction of death is often degrading
and brutalizing to the human spirit as to constitute psychological torture.’11

Similarly, Professor Ben Nwabueze strongly condemned death penalty when he said as
follows;

5
Akingbehin G., “Nigeria: Capitalisation of Kidnapping Offence – Matters Arising”
<https://allafrica.com/stories/201701160789.html> accessed 28 July 2017 at 3:50 pm
6
SeeOkoro v. State (1998) 14 NWLR 584.
7
Criminal Procedure Act (now repealed by the ACJA), Criminal Procedure Code, African Women‟s Protocol
(see Article 4 (2) (j)) and the International Covenant on Civil and Political Rights (ICCPR).
8
Iyaniwura W., “The Death Penalty-A Negation of the Right to Life”, Global Journal of Human Social Science:
Economics, Vol. 14 (2014), p. 2.
9
Ibid, pp 2-3.
10
Ibid, p. 3.
11
Okpara O., Human Rights: Law & Practice in Nigeria, 1st Ed.,(Enugu: Chenglo Ltd., 2005), p 127.

36
 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017.

‘It is inhuman to terminate human existence by killing and the fact that it is inflicted as a
punishment for crime does not make it any less so. If it is not inhuman and even if some
method of making it completely painless could be devised, it is still degrading and therefore a
violation of the constitutional prohibition against degrading treatment’.12

The positions of the above two legal luminaries are factual and the author belongs to the same
school of thought. Death penalty is undeniably against the essence of humanity as it gives
man power to take the life of another legally and unperturbed. Death penalty is an ancient
method of dealing with capital offences and therefore has proven to be ineffective in the
present dispensation. It is a barbarous survival technique from a less enlightened and
unrefined age; it is incongruous and incompatible with our present standard of civilization
and humanity13 Why should a man or woman who has been found guilty of committing
capital offence be sentenced to death? Would we not rather keep him within the restricted
walls of the prison till he lives out his life on earth and attempt reforming him? Why would
we take life we cannot give? If it is true that one cannot give what one does not have then it
should also follow by the parity of reasoning, that one should not deprive an individual of life
one cannot provide. Death penalty sins most by depriving the culprit of his chances of
reformation. One of the most proactive ways of destroying crime is by reforming the man
who is a criminal. To destroy his bodily life is nothing but a preposterous blunder.14

Those who argue in favour of death penalty may posit that solution to certain crimes is the
killing of the perpetrator of such crimes. They are of the firm view that execution is deemed
to be a retribution for an evil deed; by killing the offender, society shows its condemnation of
the former‟s crime.15They also argue that killing someone who committed a crime will deter
others from committing that same crime.

On the contrary, it has been established that despite centuries of experience with death
penalty and many scientific studies16of the relationship between the penalty and crime rates,
there is no convincing evidence that it is uniquely able to protect society from crime or to
meet the demands of justice. In fact, in many ways death penalty does the opposite. For
instance, Professor A.A. Adeyemi, who compared statistics on murders and executions
between 1967 and 1985, found that “murder incidents have consistently increased during
most of this period”. The learned Professor also found that between 1967 and 1970,an
average of 994 armed robberies were committed each year but that the annual average rose to
1500 between 1971 and 1985 owing to the executions which took place during the period. He

12
Nwabueze B. O., The Presidential Constitution of Nigeria, 1st Ed.,(London: C. Hurst & Co., 1981), p 411.
13
Anwo J. O. and Arowolo G. A., “Critical Analysis of Abolition of Death Penalty in International Law: An
Analysis of Death Penalty under the United States and Nigerian Laws”
<https://www.ajol.info/index.php/naujilj/article/view/82408/72563> accessed July 29 2017 at 1:56 pm
14
Ibid.
15
Iyaniwura W., “The Death Penalty-A Negation of the Right to Life”, Vol. 14 (2014), Global Journal of Human
Social Science: Economics, p. 6.
16
A Japanese prison psychiatrist studied one hundred and forty five convicted murderers between 1955 and
1957. He could find none who remembered thinking they might be sentenced to death before committing the
crime. “Despite their knowledge of the existence of the death “penalty” the prisoners have been incapable,
because of their impulsions and their inability to live except in the present, of being exhibited by the thought of
the capital punishment. See Sadakata K., “Etude criminolgique et psycho-pathologique de condames a mort ou
aux travaux forces a perpetuite. After 35 years in the prison Medical Service, a British Doctor found that
“Deterrence is by no means simple affair that some people think….A high proportion of murderers are so tensed
up at the time of their crime as to be impervious to the consequences to themselves, others manage to persuade
themselves that they can get away with it”. See Roper W.E., “Murderers in custody” in the hanging question, 1 st
Ed., (London, Louis Blom-Cooper Duckworth, 1969), pg. 103

37
 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017.

concluded that the studies in Nigeria “have demonstrated clearly that no efficacy can be
shown for the operation of the death penalty” for murder and armed robbery in Nigeria17.

Anwo J. O. and Arowolo G. A. put it aptly when they opined that

`Punishment is supposed to be for the protection of society, and for the reformation of the
wrongdoer. It purports to protect society by preventing the same criminals from repeating
their crimes, and by acting as a deterrent to other prospective criminals. Capital punishment
is a notorious failure in these respects. It does indeed remove the particular culprit from the
possibility of repeating his crime; but this is of very small account in view of the fact that
murder is seldom a career of repeated acts, but consists of single acts perpetrated by
different individuals. The man whom we remove from the scene, therefore, is not the man
who, if suffered to live, would have been likely to endanger our safety´18.

DEATH PENALTY ON PREGNANT WOMEN: A DOUBLE JEOPARDY

Prior to the coming into effect of Administration of Criminal Justice Act (ACJA) 2015,
one of the laws guiding death sentence on pregnant women was Section 221 of the Child’s
Right Act19. It provides thus;
2) No expectant mother or nursing mother shall be subjected to the death penalty or have the
death penalty recorded against her.
3) A court shall, on sentencing an expectant or a nursing mother, consider the imposition of a
non‐institutional sentence as an alternative measure to imprisonment.
4) Where institutional sentence is mandatory or desirable, an expectant or a nursing mother shall
be committed to and be held or detained at a Special Mothers Centre.
Note that the above provision did not only make it imperative that death penalty must not be
recorded against a pregnant woman or nursing mother, it also went ahead to suggest an
alternative sentence. Also, in Section 271 (3) of the Criminal Procedure Code20, an
alternative to pronouncing death penalty on pregnant women was suggested by the draftsman
thus,
„Where under the provisions of subsection (2) it is proved affirmatively to the satisfaction of
the Court that the woman is pregnant, the court shall find accordingly and shall pass upon
her a sentence of imprisonment for life.’21

The provisions of section 221 (2) of the Child‟s Right Act is consistent with Article 6(5) of
the International Covenant on Civil and Political Rights (ICCPR)22, aCovenant which
Nigeria is a signatory to but has not ratified,which provides as follows: „Sentence of death

17
Adeyemi A. A.,“Death Penalty; Criminological Perspectives the Nigerian Situation” in the Death penalty pg.
489-494.
18
Anwo J. O. and Arowolo G. A., op cit.
19
Cap C50 LFN 2004.
20
Cap C42 LFN 2004.
21
A similar provision ought to have been found in the subsections of Section 376 of the Criminal Procedure Act
which is imparimateriawith Section 271 of the Criminal Procedure Code. What does it matter anyway, has the
Criminal Procedure Act not been repealed by Section 493 of the ACJA?
22
999 UNTS 171 (1976), Adopted by the General Assembly of the United Nations on 19 th December 1966.
Aimed at abolishing death penalty as a form of criminal punishment.

38
 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017.

shall not be imposed for crimes committed by persons below eighteen years of age and shall
not be carried out on pregnant women‟.

However, upon the coming into effect of the Administration of Criminal Justice Act
(ACJA) the position of the law in Nigeria as regards death penalty on pregnant women
changed radically. This is so because the provision of Section 415 of the ACJA is a negative
and contemptible version ofSection 271 of the CPC. The Section shamefully provides thus;

1) Where a woman convicted of an offence punishable with death alleges that she is pregnant,
the court shall, before sentence is passed on her, determine the question whether or not she is
pregnant.
2) The question whether the woman is pregnant or not shall be determined by the court on such
evidence as may be presented to the court by the woman or on her behalf or by the
prosecutor.
3) Where in proceedings under this section, the court finds the woman in question is not
pregnant the court shall pronounce sentence of death upon her.
4) Where in proceedings under this section, the court finds the woman in question to be
pregnant the court shall sentence her to death subject to the provision of Section 404 of this
Act.

Now, the Section 404 referred to provides that

‘Where a woman found guilty of a capital offence is pregnant, the sentence of death shall be
passed on her but its execution shall be suspended until the baby is delivered and weaned.’

It is in light of the foregoing that writer finds it difficult to concur with E. O. Akingbehin,
Ph.D when he opined that „the penal laws of some African states embrace the approach in the
ICCPR in which the death sentence, if imposed cannot be executed on a pregnant woman.‟23
With due respect to the learned Doctor of Laws, the ICCPR could not have given the
impression that its approach is to impose but not execute death penalty on pregnant women.
This stand is gleaned from a holistic look at the provisions of Article 6 of the ICCPR which
states that death penalty should be abolished and went ahead to categorically state in
subsection 5 that death penalty must not be imposed on pregnant women. It therefore cannot
be assumed to have turned around to say that death penalty maybe imposed but suspended as
the learned Doctor has posited.

The provisions of Section 404 of the ACJA amounts to punishing the unborn child for the
sins of his/her mother. In fact, as aptly put by Bob Osamor, it means setting the teeth of the
child on edge because the mother has eaten sour grapes.24 It translates to putting more
motherless children in foster homes and/or streets. Laws are meant to be dynamically
progressive. Regrettably, the ACJA failed woefully in this regard.

Death penalty simpliciter is a jeopardy. Death penalty on pregnant women is much more a
gross jeopardy. It is a double jeopardy! Not just because it affects the whole life of the child
to be born and of course fouls his idea of the government and state but also because it is a
development in the wrong direction.

23
Akingbehin, E. O.,“Exemption of the Vulnerables from Capital Punishment in Nigeria”, British Journal of
Arts and Social Sciences, Vol.7 No. I (2012), p. 56.
24
Osamor B., Fundamentals of Criminal Procedure Law in Nigeria.1st Ed., (Lagos, Dee – Sage Nigerian
Publishers, 2004) p. 386.

39
 LEGAL AID OYO JOURNAL OF LEGAL ISSUES VOL. 1, ISSUE 1, 2017.

Who do we expect to take care of the child whose mother was killed by the state? How do we
think that the child would see the government who deprived him or her of the care only a
mother can give when he or she grows up? This is a serious legal cum societal issue.
CONCLUSION
This article has strived to explain what death penalty is and condemned same because it is
inhuman and degrading. The author tried to show that death penalty is ipso facto a jeopardy
and death penalty on pregnant women a double jeopardy.

This article has revealed that death penalty on pregnant is repugnant to sense of humanity of
both the expectant mother and the baby. The article, further, reveals that the laws in existence
before the coming of the ACJA represent a condonable position. However, the new position
brought into force by the ACJA was described with the strongest adjective to be negative by
the author.

The provisions of the ACJA with respect to death penalty on pregnant women especially
Section 404 of the ACJA is downright heinous, despicable and an embarrassing provision to
be found on the pages of a law enacted by the National Assembly of our great nation and
signed into law by a President who has an Attorney General and Minister of Justice in his
cabinet.

Let us assume that the reason the ACJA departed from the previously obtainable position of
the law was to cure the mischief of pregnant women escaping punishment by the mere fact
that they are pregnant, bearing in mind, that the relevant time in question is the time of
conviction or execution25.

Irrespective of how marvelous the intentions of the legislators are, the undeniable fact still
remains that death penalty on pregnant women is inhuman because it is a denial of the
humanity of the expectant mother. It is degrading because it stripes, not just the nursing
mother but also her newly born baby, of all their dignity and treats the mother as an object to
be eliminated by the state. It is disheartening to make a pregnant woman live each day
knowing that her life is preserved so that she would be executed once she put to bed. It is
despicable to expect a nursing mother to wake up each morning to the reality that upon
weaning her newly born child she would be denied the joys of motherhood. It is heartless to
encourage or put a mother under a condition to raise her tender child under the menacing
shadow of her own imminent death. It is not worth it!

Following from the foregoing and bearing in mind that the jurisprudence behind punishment
is to reform the criminal and not to eliminate him, the following recommendations are
suggested:
1. Sections 415 and 404 should be expunged from the ACJA as soon as possible. If not for
anything, to save the society, which the criminal justice system by its punishments aims at
protecting, from the menace of having more motherless babies and also to save the face of
this great nation.
2. The legislators have two options after removing the offensive sections thus;
a. They should either allow sentence of life imprisonment to replace death penalty as seen in
Section 271 (3) of the CPC or more preferably,
b. They should adopt the provision of Section 221(3) of the Child Right Act.
25
Akingbehin, E. O., art cit.,. p57. It is also the writer‟s view that the question of who actually impregnated the
convict while she was in the prison may have influenced the legislators to change law for the worse.

40