THE LEGALITY OF MURDER

“The soul that sinneth must die” says the natural law as recorded in the bible. Taken by its literal meaning, this means that anyone who kills another must be killed. The right to life is a fundamental right to which everyone is entitled and this right is so revered that Section 33 (1) of the constitution of the Federal Republic of Nigeria 1999 (hereafter referred to as CFRN) copiously provides for the protection of this right to the extent that no one is allowed to take another’s life.

 However, the same constitution makes provisions for conditions under which a person may be considered to have been killed legally thereby invalidating the natural law of “kill and be killed”. 

Section 33(2) of the constitution provides three conditions under which a person killed by another may be said to have been deprived of his right to life in contravention of S.33 (1). Similarly, section 32 of the Criminal Code Cap “C38” Laws of the Federation of Nigeria, 2004, equally excuses a person from criminal liability who has killed another person.

By virtue of the foregoing, immediate emphasis need be made on the fact that certain defneces can be averred by a person who has killed another so that such murder may become justified or “legal”, not because the act is right but because of the circumstances of the act.

One of such defences is Self Defence. Where death results when a person is in an attempts to protect himself, his property or another person(’s) (known in theAmerican jurisdiction as - alter ego defence of others) from being unlawfully harmed, such murder is by the law regarded as legal. This is copiously provided for in section 32(3) and (4) of the Criminal Code.

*Self defence is however not provided to protect people from criminality. Put differently, anyone seeking to rely on this defence must have acted in good faith. This is why section 33(4) concludes with the caveat that the section does not operate to protect anyone from an act or omission punishable with death.

 Furthermore, the act does not protect anyone who having entered into an unlawful association or conspiracy where threats to life could be made to him, kills another in the course of protecting himself or another who must have joined the same association with him from such threatened harm. This is obviously because by being a part of such clandestine association, he has volunteered himself to assume any such threat which may be a natural consequence of belonging to such unlawful association and in lawvolenti non fit injuria meaning that a person who willingly assumes a risk is assumed to have submitted to the situation he finds himself and thus cannot complain about the consequence of such assumed risk.

It must not escape mention however, that any act done in self defence must not be manifestly unlawful.In other words, where a person attempts to respond to a threatened violence, he must do so with a reasonable exercise of caution. The defensive act must for instance be commensurate with the threatened violence. Therefore, where a person uses a force which is not proportional with the threatened violence, the defence of self defence will not avail him.More so, where the victim is weaker than his assailant, self defence will fail to protect the later from conviction
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The CFRN at Section 33 (2) (b) which is almostinpari materia with section 32(1) (2) of the Criminal Codealso protects a person who kills another in order to effect a lawful arrest or in the execution of the law or in the obedience of the order of a competent authority.

 What this means is that where a person such as a law enforcement agent kills another while doing his lawful duty or while obeying a superior authority, he will not be held criminally responsible for murder. It must be noted however that  for a person to successfully rely on having obeyed a superior order, such order must not be illegal.

Similarly, section 33 (2) (c) of CFRN further provides to the effect that a person will not be held criminally responsible for killing another in the course of an act done in order to quell a riot, insurrection or mutiny.

Evidently from the foregoing, not everyone who kills gets killed. Aside the fore stated protections, several other defences could work to exculpate a person who kills another from liability. Some of these include Insanity, Accident, Automatism, Insane Delusion, Intoxication, Provocation etc.

  It must be stressed at this point that all these defences are premised on the express provision of S.24 of the Criminal Code provides a person in not criminally responsible for an act or omission, which occurs independently of the exercise of his will or for an act which occurs by accident.

 Thus, a person will not be said to have committed an offence which he did not pre-conceive in his mind. In other words, a person is only guilty of an offence which he had the intention to commit.

 For a person who is under the influence of alcohol for instance, he is assumed to have lost the ability to know what he is doing at the time or to understand the consequence of such act. Thus, he does not have the ability to form the requisite mens rea (mental element) to commit an offence. It must be pointed out however that intoxication will fail to protect who willingly places himself under the influence of alcohol.

 This exception contained in section 29(2)(a) of the Criminal Code is so as to prevent a person from deliberately inducing himself with alcohol in order to acquire Dutch Courage to commit a crime, in which case the defence of intoxication will fail to protect him.

Obviosusly, these defences where successfully pleaded in cuourt, operates to set the accused free from being killed. It is the prosecutor’s duty to prove that the accused had the mens rea to commit the alleged crime and that he actually committed the crime. Where for any reason, the prosecutor fails to do this, the case will be resolved in the favor of the accused.

WRITTEN BY:                                                                                                                                                  STANLEY A. NNABUO.