The Legality of Killing a Seven (7) Year Old Boy for Stealing -By Akogwu Egene, Esq.

Seven-year-old lynched in Lagos

It is no longer news that a boy of about 7 years of age was mercilessly beaten and burn to death between Tuesday the 15th day of November, 2016 and Wednesday the 16th day of November, 2016. The report had it that the ill-fated lad was cruelly sent to his early grave for attempting to steal or stealing garri or some other items. Recent reports also had it that an angry mob lynched two (2) suspected armed robbers in Warri, Delta State, and also that two (2) ladies were set ablaze in Benue State for the practice of lesbianism. If these reports are true, one wonders whether such extra judicial killings are justifiable.

Should a person be killed for stealing?

Section 3(1) of the Criminal Code applicable in southern Nigeria has this to say:

A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.

By the foregoing provision of the Criminal Code, any person who takes anything that is moveable or made moveable without permission or converts what he/she takes with permission of the owner, is said to have stolen that thing. The item to be stolen could be vehicle, food stuff, house-hold items, domestic and wild animals belonging to any person. On the punishment for stealing, section 390 4(a) & (b) of the same law provides:

1. If the thing is stolen from the person of another;
2. If the thing is stolen in a dwelling house, and its value exceeds N10 or the offender at or immediately before or after the time of stealing uses or threatens to use violence to any person in the dwelling house:

The offender is liable to imprisonment for 7 (seven) years.

In any of the circumstances enumerated in subsection 4(a) & (b) of section 390 of the Criminal Code, a person who steals may be sentenced to 7 (seven) years imprisonment so long as the value of the item stolen exceeds N10. Only the Courts have the right to punish an accused with imprisonment when he is convicted of stealing. However, even a Court of law does not have the right to punish a thief with death no matter the value of the item he is found to have stolen. If an established Court of law vested with power to punish criminals does not punish convicts of stealing with death, why should you?

It should be noted that attempting to steal is different and lesser in degree than stealing. Thus, the punishment for one who attempts to steal in any of the enumerated circumstances will be fundamentally different from the one who is actually convicted of stealing. This is because attempting to steal is an inchoate offense, that is, an incomplete offense or an incomplete act of stealing. In the case of Okafor v. State (2016) ALL FWLR (PT. 824) 133 the Court held that:

In order to constitute an attempt to commit an offense, the act must be immediately connected with the commission of the particular offense charged and must be something more than preparation for the commission of the offense.

In a layman’s language, attempting to steal means trying to steal a person’s moveable property. And because it is an inchoate offense, the punishment will be lesser in degree than that of stealing. So, why should one punish the suspect of attempted stealing with death?

How Justifiable is it to Kill for Armed Robbery?

The offense of armed robbery can be gleaned from section 401 of the Criminal Code and section 1 of the Robbery and Firearms Act. Section 1(2) of the latter Act provides:

Armed robbery would occur, if the accused while carrying out robbery was armed with a firearm or any other offensive weapon or was in company with a person so armed.

Thus, by this stipulation of the law, any person who while armed with offensive weapon or firearm or in company of a person so armed, does steal anything is said to have committed armed robbery. The punishment for armed robbery is death. Even when the Court has validly sentenced a convict to death, only the Executioner has the right to take the convicts’ life after the authority concerned has approved the death sentence. Even the Executioner is under obligation to send the criminal to death by strictly complying with the sentence of the Court. It is an offense for even the Executioner to take the convicts’ life in a manner different from the one prescribed in the sentence of the Court.

It should be carefully noted that even when an infant (a person below the age of 17 years) is found to have committed a capital offense, the infant shall not be sentenced to death. This is because the infant has not attained the age of majority and so cannot be subjected to the grievous punishment of death. Instead of death, the law provides for the detention of an infant at the pleasure of the President or Governor depending on whether the capital offense the infant is found to have committed is a Federal or State offense. Thus, in the case of Modupe v. The State (1988) 4 NWLR (pt.87) 130, where the convict of a capital offense had no attained the age of 17 years, the Court ordered that the convicted infant be detained at the pleasure of the Governor. From this, we know that even a Court of law does not punish an infant with death even when the infant is found to have committed a capital offence. Why should you?

Jungle justice, self-help or mobbing is prohibited in Nigeria. However, what look like jungle justice or self-help under the Nigerian law is the defence of provocation and self defense. The term provocation is:

any “wrongful act or insult of such a nature to be likely, when done to an ordinary person or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stand in conjugal, parental, filial, or fraternal, relation or in the relation of a master or servant to deprive him of the power of self – control and to induce him to assault the person by whom the act or insult is done or offered – section 283 of the Criminal Code.

The above section makes it clear that a person who assaults another out of provocation is not criminally liable for the assault if he is in fact deprived of the power of self-control and acts in the heat of passion provided the force used is commensurate with the provocation and is not intended to cause death or grievous harm.

Also, a person shall not be regarded as having been deprived of his right in accordance with 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 for the defence of any person from unlawful violence or from the defense of property – section 33(2) (a) of Nigerian constitution, 1999. By this provision, one can lawfully kill another person while attempting to defend one’s self, someone else or property.

Mobbing a suspect otherwise known as jungle justice is a criminal offense punishable in Nigeria. This is because nobody is above the law and no one should take law into one’s hand. Thus, Section 33(1) of the Constitution says that:

Every person has the right to life, and no one shall be deprive intentionally of his life, save in execution of the sentence of a Court in respect of a criminal offense of which he has been found guilty in Nigeria.

The constitution is telling us here that no matter what a person does or is alleged to have done, no person have the right to terminate the person’s life. Only a Court of Law that finds a person guilty of crime whose prescribed punishment is death can sentence the person to death. The reason for this position is that human life is sacred and only God, the creator, can rightly take human life. And more so, every person who is alleged to have committed an offence until proved otherwise is not responsible for such offence as the Person is innocent. Thus, Section 36(5) of the same Constitution states that;

Every person who is charged with a criminal offence shall be presumed to be innocent, until he is proven guilty.

The reason for presumption of innocence is to ensure fair hearing, equity and justice is meted out to alleged suspects and to curb jungle justice. So, it is a violation of the right of fair hearing of a suspect when jungle justice is meted out to the suspect. It is in law a crime to harass, beat or kill a suspect simply because the suspect is caught in the very act of committing an offence or was pursued and caught immediately after committing the said offence.

Conclusively, it should be borne in mind that no person has the right to beat or kill another person even when the other person is caught in the very act of committing an offence such as stealing, rape, murder, armed robbery and any other offence for that matter. This is because Nigerian Law guarantees a person’s right to life, liberty and dignity even when the person is suspected of having committed a crime. It is thus submitted that the various individuals and groups who specialize in harassing, beating and killing suspects should deceased from such acts as such acts are criminal. The police and other law enforcement agencies are hereby enjoined to brace up in the discharge of their duty by arresting any individual or group that engage in violating the rights of suspects.

Akogwu Egene, Esq., is a legal practitioner at Crystal Law Chamber, Ibadan