Some weeks ago, we discussed this vexed topic in which ex- Chief of Army Staff and Minister of Defence, General T.Y. Danjuma, called upon Nigerians to defend themselves against marauding herdsmen. The call is timely. His call is not new. It has been so from time immemorial. Today, we x-ray the topic, with some of its legal restrictions.
One of the restrictions is that “the right of private defence in no case extends to the infliction of more harm than is necessary to inflict for the purpose of defence”.
Under Section 65 of the Nigerian Penal Code, private self defence may, in certain circumstances, extends to killing another where the act being repelled falls in one of the following categories: (a) an attack which causes reasonable apprehension of death or causing grievous hurt; or (b) rape or assault with intent to gratify unnatural lust, or (c) abduction or kidnapping. These situations afford a person the right to kill another.
More significantly, the right to self defence is given constitutional imprimature by the provisions of section 33 (2) (a) of the 1999 Constitution.
It provides that “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 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 for defence of property.”
Section 286 (1) of the Nigerian Criminal Code provides: “if the nature of the assault is such as to cause reasonable apprehension of death or grievous harm and the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
In Akpan V. State (1994) 9 NWLR (part 368) at p.347, Adio (Justice, Supreme Court as he then was), in interpreting section 286 of the Nigerian Criminal Code, held as follows: “When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force on the assailant as is reasonably necessary to make effectual defence against the assault. The force which may be used in such circumstances must not be intended, and should not be such as is likely to cause death or grievous harm.
If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm, and the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence even though such force may cause death or grievous harm”.
This means that anyone attacked by an herdsman has the legal right to defend himself and repel the attack, even if such leads to killing that herdsman.
Section 60 of the Penal Code, provides that “subject to restrictions contained in the code, every person has a right to defend his own body, and the body of another person against any offence affecting the human body”. One of the restrictions however, is that “the right of private defence in no case extends to the infliction of more harm than is necessary to inflict for the purpose of defence”.
The Nigerian Penal Code’s approach is different from that of the Criminal Code. Under the Penal Code, killing occasioned by the use of excessive force in private defence is manslaughter only, not murder. Section 222 (2) of the Penal Code provides: “…culpable homicide is not punishable with death if the offender in the exercise (in good faith) of the right of private defence exceeds the powers given to him and causes death…”
However, under section 287 of the Criminal Code provides in part as follows: “When a person has unlawfully assaulted another or has provoked an assault from another, and that other assaults him with such violence as to cause reasonable apprehension of death of grievous harm, and to induce him to believe, on reasonable grounds, that it is necessary for his preservation from death or grievous harm to use force in self defence, he is not criminally responsible for using any such force as is reasonably necessary for such preservation, although such force may cause death or grievous harm.
This protection does not extend to a case in which the person using force, which causes death or grievous harm, first began the assault with intent to kill or to do grievous harm to some person; nor to a case in which the person using force which causes death or grievous harm endeavoured to kill or to do grievous harm to some person before the necessity of so preserving himself arose, nor in either case, unless, before such necessity arose, the person using such force declined further conflict, and quitted it or retreated from it as far as was practicable”.
The degree of force permissible should not differ for example, in the case of a master defending his servant from the case of a brother defending his sister or, indeed, that of a complete stranger coming to the defence of another under unlawful attack. See Gani Fawehinmi vs Akilu (1987) 4 NWLR (Pt 67) 797. (This is the case where the Supreme Court said everyone was his brother’s keeper).
Also, under Section 288 of the Nigerian Criminal Code, whenever it is lawful for any person to use force in any degree for the purpose of defending himself against an assault, it is lawful for any other person acting in good faith in his aid to use a like degree of force for the purpose of defending such first-mentioned person.
In State V. Agbo (1963) 3 E.C.S.L.R p.4, it was held that this defence availed the accused who, having observed the deceased inflict a fatal accident matchet cut on one of the accused person’s son’s and cut the other on the knee with the matchet, snatched the matchet from the deceased and killed him.
The burden of proof
The burden of proof in cases of self defence remains throughout on the prosecution. It is never, at any time, for the accused to establish that defence. Once court doubts as to whether or not the accused was acting in self defence, the defendant should be acquitted.
In Baridam V State (1994) 1 NWLR (pt 32) 250, the Supreme Court held that: “The onus is always on the prosecution to disprove the accused’s defence of self defence and not on the accused to establish his plea. Thus, the defence of self defence will only fail where the prosecution shows beyond reasonable doubt that what the accused did was not done by way of self defence”. This judgment is in sync with the provisions of section 36 of the 1999 Constitution. Our criminal justice system is accusatorial (presumption of innocence) and not inquisitorial (presumption of guilt).
PMB and his international outings
What I don’t understand about PMB is why he makes his most telling and negative statements about Nigeria outside her shores. This has de-marketed Nigeria a great deal, leading to international dis-investment. Nigeria being a “fantastically corrupt” nation was a statement made in London in the presence of the then Prime Minister, Tony Blair. There have been others, such as addressing German Chancellor Angela Merkel, as President Michelle of West Germany! Where are PMB’s loquacious media men and handlers? Why not give him written briefs, words on marble whenever he is travelling outside Nigeria?
The newest gaffe is blaming ex Libyan leader, Muammar Gaddafi, who was killed seven years ago after an uprising, for herdsmen menace and savagery butchery and blood-letting across Nigeria. He told Archbishop of Canterbury, Justin Welby, on Wednesday, to a shocked world, “it has always been there, but now made worse by the influx of armed gun men from the Sahel region into different parts of the West African sub-region… These gunmen were trained and armed by Muammar Gaddafi of Libya. When he was killed, the gunmen escaped with their arms. We encountered some of them fighting with Boko Haram…”.
Good gracious! Interpretation: “I am helpless against these Gaddafi – trained armed men”. What is the job of a president who doubles as Commander-In-Chief of Nigeria’s Armed Forces, having known that the marauding killers of his citizens are external mercenaries? Is it not to immediately dispatch his military to kill them, since this amount to a declaration of war by external forces?
But, no! Buhari, who had promised at his 2015 presidential campaign rallies, to lead the war against Boko Haram and other insurgency from the front (Nigerians celebrated this selling point as he was a former military Head of State and a retired General), now wrings his hands, wash off responsibility like the biblical Pontius Pilate, and would rather hunt down critical voices who call for self-defence (including General Danjuma and Apostle Suleiman).
I don’t have any regard (and Nigerians don’t), for an Archbishop Welby who preaches same – sex marriage between men and men and women and women, contrary to biblical injunctions. The Holy Spirit, if it ever resided in him before now, has since departed him. But, the sad news is that this apostate is Buhari’s soul-mate and friend.
It is clear that in endorsing Buhari for a second term, the Archbishop is not only out of touch with the cries, blood, throes, pains, pangs, anguish, hemorrhaging, despondency, hunger, squalor, impunity, insecurity and monumental corruption besetting today’s Nigeria on a scale never before seen, but is surely hearing hallucinatory voices from Satan and his demonic forces. It is also, so, sad, how this supposed man of God is polluting the Body of Christ with outlandish political putrefaction and insensate self – aggrandizement.
Anti-corruption fight: The joke of the decade!
There has never really been a corruption fight. It was dead on arrival. It was, at best, a tentative attempt to recover illicit funds from Nigerians not deserving of them. But, even that has been skewed as all monies looted are re-looted by their cabal to enrich their cronies, friends and family members. Government fights corruption within opposition and against critics with insecticides, herbicides, germicides and pesticides, whilst fighting corruption within government with sweet smelling sasarabia perfume.
Corruption manifests itself more odiously and purifyingly through the PMB’s worst form of cronyism, nepotism, clannishness and tribalism in his appointments, selective fight against corruption, opaqueness in style of governance, disobedience to court orders, impunity, lack of respect to citizens fundamental rights, the judiciary and rule of law, tyranny, despotic tendencies and muzzling of opposition and voices of dissent. It has never been so bad.
Thought for the week
“You do not have the right to take another human’s life, unless it’s in strict self-defense”. (Michael Moore).