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Justification for and the Abolition of Capital Punishment Under Human Rights Law

Justification for and the Abolition of Capital Punishment Under Human Rights Law

Justification for and the Abolition of Capital Punishment Under Human Rights Law

Chapter One


The main objective of this study is to critically examine the advent of and development of the doctrine of death penalty in relation to human right law and to look into various provisions of the law both local and foreign and to compare its use in Nigeria to that of other countries, so as to know its effect on the economy and society at large and to reasonably make recommendations afterwards.




The right to life is a phrase that describes the belief that a human has an essential right to live, particularly that a human being has the right not to be killed by another  human being. The concept of a right to life is central to debates on the issue of capital punishment. Proponents of Human Rights believe capital punishment violates the right to life and Human Dignity, but some Constitutions have argued otherwise. This Chapter seeks to extensively discuss capital punishment and Human Right and to evaluate the relationship between Human Rights and Capital punishment so as to ascertain whether or not they contradict and violate each other.


Criminal Punishments are penalties imposed by the government on individuals who violate criminal law. (Criminal law prohibits behaviour deemed harmful to society as a whole, whereas civil law governs private interactions between individuals.) People who commit crimes may be punished in a variety of ways. Offenders may be subject to fines or other monetary assessments, the infliction of physical pain (corporal punishment), or confinement in jail or prison for a period of time (incarceration). In general, societies punish individuals to achieve revenge against wrongdoers and to prevent further crime—both by the person punished and by others contemplating criminal behaviour. Some modern forms of criminal punishment reflect a philosophy of correction, rather than (or in addition to) one of penalty. Correctional programs attempt to teach offenders how to substitute lawful types of behaviour for unlawful actions.

Throughout history and in many different parts of the world, societies have devised a wide assortment of punishment methods. In ancient times, societies widely accepted the law of equal retaliation (known as lex talionis), a form of corporal punishment that demanded “an eye for an eye.” If one person’s criminal actions injured another person, authorities would similarly maim the criminal. Certain countries throughout the world still practice corporal punishment. For instance, in some Islamic nations, officials exact revengebased corporal punishments against criminals—such as amputation of a thief’s hand—under the law of hudūd. Monetary compensation is another historic punishment method. In England during the early Middle Ages (5th century to 15th century) payments of ‘blood money’ (wergild) were required as compensation for death, personal injury, and theft.

Penology, the study of criminal punishment, is a subfield of criminology. Criminologists theorize about why people commit crimes and deviate from society’s norms of behaviour. They also study how society punishes criminals because different methods of punishment may cause people to alter their behaviour in different ways. Thus, criminologists devise theories that not only explain the causes of crime but that also address its prevention and control.


Although some societies still use ancient forms of harsh physical punishment, punishments have also evolved along with civilization and become less cruel. Punishments range in severity depending on the crime, with the most severe forms applied to individuals who commit the most serious crimes. In most industrialized societies, contemporary punishments are either fines or terms of incarceration or both. Contemporary criminal punishment also seeks to correct unlawful behaviour, rather than simply punish wrongdoers[1]. [1] Champion, Dean J ‘criminal punishment’ Microsoft,Encarta,2009 Redmond WA Microsoft corporations, 2008.





The criminal justice system has its reasons for imposing capital punishment on convict. There are however some arguments for the abolition of this form of punishment. This chapter seeks to examine both arguments and the flaws in them.


logical and legal reasons in favour of the enforcement of capital punishment, the main arguments for capital punishment are just punishment, deterrence, and incapacitation


Perhaps the most important goal of a criminal justice system is to impose just punishment. A punishment is just if it recognizes the seriousness of the crime.

‘Let the punishment fit the crime’ it is a generally accepted and sound precept.

In structuring criminal sentences, society must determine what punishment fits the premeditated taking of innocent human life. To be proportionate to the offence of cold-blooded murder, the penalty for such an offence must acknowledge the inviolability of human life. Murder differs from other crimes not merely in degree, it also differs in kind[1].

Only by allowing for the possibility of a capital sentence can society fully recognize the seriousness of homicide. Indeed, to restrict the punishment of the most aggravated murders to imprisonment conveys a deplorable message. Many other crimes, such as serious drug trafficking and sexual offences, are currently punished with lengthy sentences, and in some cases, life prison terms. Without a death penalty, the criminal law’s penalties will essentially ‘top out’ and will not differentiate murder from other offences. Only if the sentencing structure allows for a substantially greater penalty for murder will the range of penalties fully reflect the seriousness of ending the life of an innocent human being. [1] Paul G cassell ‘why the death penalty is a necessary and proper means of punishment’ Microsoft, Encarta,2009.




Capital punishment is a well known, controversial and universal concept, it is well accepted in some societies and frowned at in some, its effectiveness is debated by both its’ supporters and opponents, social scientists have collected statistical data on trends in homicide before and after jurisdictions have abolished capital punishment. This chapter seeks to compare the Nigerian capital punishment with that of the United State of America and two other countries that have abolished it so as to determine whether or not capital punishment has control over the rate of homicides in ciety.




The reasons for the controversial nature of the concept of capital punishment is not farfetched, this is because both the arguments for and against the concept are reasonable and seem to be for the benefit of mankind. Law generally is said to be an instrument of social control, it tries to control crimes by setting out punishment for offenders and at the same time gives rights to individuals. The rights granted or created by   law include the right to life and human dignity both of which conflict with the concept of capital punishment. It has been discovered that the ability of punishment to deter is not based on the severity of the punishment prescribed but in its certainty, if it is certain that a person who is convicted of an offence will surely be punished, no matter how minute the punishment might be, the certainty of that punishment is more likely to deter other people or even the same person from committing the same crime than severity of punishment with no certainty. This work has discussed capital punishment in detail and discovered that the major arguments in its support are; just punishment, deterrence, and incapacitation, While the arguments against the concept are based on; propensity to condemn innocent defendants, discriminately application on the bases of race as it was in South Africa before death penalty was finally abolished, arbitrary application against the poor, comparing cost to benefit, this argument emphasises  that the cost of executing  an innocent person is far more weightier when compared to the benefit of capital punishment, as such the abolition of capital punishment is the most ideal thing to do by societies that are still in use of it. It has also been established that capital punishment when viewed in relation to human rights contravenes or violates the right to life and human dignity. This write has actually done justice to the justifications for and abolition of capital punishment under human right law. This research has revealed or identified that the following problems are products of the use of capital punishment: propensity to execute innocent defendants, the non conformity of capital punishment with the rehabilitative aim of criminal punishment, the inability of the concept to deter the commission of the same crime, amongst others.


Having identified the above problems; I would like to make these recommendations;

Capital punishment should be abolished and replaced with life imprisonment: it has been established that with the use of capital punishment, there is usually a great possibility of executing innocent defendants, but if life imprisonment is substituted for death penalty, innocent people will no longer stand a chance of being executed for offences or crimes they did not commit.

Rehabilitation of offenders: contemporary criminal punishment ought to seek the correction and transformation of criminal behaviours rather than merely penalising wrongdoers. But this concept seems as a mirage as the goal of rehabilitation is increasingly receiving lower priority in correction; today the primary emphasis of punishment is to ensure that offenders receive punishment commensurate with the seriousness of their offence. I am highly recommending that, rehabilitative measures should be put in place for wrongdoers to transform their behaviours and make them useful to themselves and the society, the rehabilitation should comprise of basic education skills and vocational training this will keep the prisoners busy and make it possible for them to earn a decent living after their jail term.

Educational Program in Prison

Inmates at the West Tennessee Detention Facility in Mason, Tennessee, work on computers as part of an [1]educational program. Prison rehabilitative programs attempt to help inmates integrate into society and avoid future criminal activity.




  • Abdelsalam A. Mohammed ‘Individual and NGO participation in Human Right Litigation before the African Court of Human and People’s  Rights: Lessons from the European and Inter-American Courts’ (1999) 43(1&2) Journal of African Law.
  • Glanville Williams ‘causations in homicide’ (1978) 4 Modern Law review 423.
  • Yusuf, Abdul Azeez, ‘Frequent capital offences in Nigeria: A Shariah Perspective’ (1998) 7 Kwara Law Review 58.
  • Richard Burton ‘Human Rights Act and Substantive Law’ 2000 Criminal Law Review, Sweet and Maxwell.


  • Champion, Dean J ‘Criminal punishment’ 2009 MicrosoftEncarta
  • Lawrence C, Marshall ‘why the death penalty should be abolished’ 2009 Microsoft Encarta
  • Paul G Cassel ‘why the death penalty should is a necessary and proper means of punishment
  • Wikipedia ‘Electrocution’>accessed on 4 January 2011
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