The rule of natural Justice is always traced to the famous Judgement of Justice Fortescue in R v Chancellor of University of Cambridge(1723) who is quoted as having said in the case:
…even God himself did not pass sentence upon Adam,before he was called upon to make his defense. ‘Adam'(says God) ‘ where are thou’. Hast thou not eaten the tree where of I commanded that thou shouldest not eat.
The same is shown in the Holy Scriptures as recorded by St. John, when Nicodemus queried the Chief Priest and the Pharisees thus: “Doth our Law Judge any man, before it hear him and know what he doeth”(John 7: 51)
This principle of Natural Justice is based on the Latin Maxim ‘Nemo Judex in causa sua’ and ‘Audi alteram partem’ meaning ‘ a man may not be a judge in his own cause(case) and let the other side be heard’ respectively.
The doctrine of fair hearing was captured in the dictum of Oputa JSC in the case of Garba v University of Maiduguri(1986) when he said ‘ God has given you two ears to hear the both sides’.
A summary execution is an execution in which a person is accused of a crime and immediately killed without benefits of a full and fair trial. Summary execution have been practiced right from time immemorial; by the police, military, and para-military organizations and are frequently associated with guerillas warfare, counter insurgency, terrorism, and many other situation which involves a breakdown of the normal procedures for handling accused prisoners, civilians or military officers. It is axiomatic to note that, this is evident in Nigeria especially during this ugly era of Boko-Haram insurgency whose strong grip has bedeviled the Northern Eastern States of Nigeria and its environs. It is pertinent to note that, Summary execution is illegal in nearly all civilian Jurisdictions; it is illegal in the sense that it unabashedly violates the rights of the accused to a fair trial.
It is aphoristic to note that, the execution of Ken Saro Wiwa on the 10th of November 1995, during the Military Dictatorship of Gen. Sani Abacha was a clear prototype of Nigeria’s version of summary execution. Ken Saro Wiwa a scion of the Ogoni people of the Niger Delta whose home-land Ogoni land in the Niger Delta of Nigeria has been targeted for Crude Oil exploration since the 1950’s but has suffered extreme environmental damages for decades of indiscriminate Petroleum waste dumping; was the spokesman and President of the Movement for the Survival of the Ogoni People (MOSOP) a non-violent campaign against environmental degradation. His execution provoked international Outrage and resulted in Nigeria’s suspension from the Common-Wealth of nations for over three years. legally, his execution was in conflict with his fundamental human right of life and freedom of expression and fair trial as encapsulated in sections 33 ,39 and 35 (2)(3) (4) of the 1999 constitution of the Federal Republic of Nigeria as amended 2011.
Similarly, almost all constitutions or legal system based on Common law have prohibited execution without the decision and sentence of a competent judge, and the United Nation’s International Covenant on Civil and Political rights (ICCPR) has declared inter alia “Every human being has the right to life. This right shall be protected by law. No man shall be deprived of his life arbitrarily.[The death] penalty can only be carried out pursuant to a final judgment rendered by a competent court” (International convention on Civil and Political rights. [Article 6 and 6”. This is in tandem with section 33(1) of the 1999 constitution of the Federal Republic of Nigeria as amended 2011; a violation of which is tantamount to a legal somersault, contradictions and amounts to a miscarriage of justice. In practice, though, extra judicial killing, have been performed by the police and domestic forces in various countries and times, sometimes under marital law. It is also performed by armed bands fighting against governments and common citizens.
Consequently, under the military law, Summary execution is illegal in almost all circumstances, as a military tribunal would be the competent judge needed to determine guilt and declare a sentence of death. However, like the popular legal aphorism says that in every General rule there is always an exception or limitations, Summary execution is legal especially in “emergencies” and warfare”.
All over the world, from available history indicates that major treaties such as the Geneva Conventions and Hague convention, Customary International Law, protects the rights of captured regular and irregular enemy soldiers along with civilians of enemy states. Prisoners-of-war (POW’s) must be treated in carefully defined ways which definitely ban summary execution, as the second protocol of the Geneva conventions (1977) states:
No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality” Second protocol of the Geneva conventions (1977) Articles 6.2.
This is on all fours with section 36 (8) and section 35 (1) (a) of the 1999 constitution of the Federal Republic of Nigeria as amended 2011.
It will be Germane to note that, some classes of combatants may be accorded prisoners of war status, though that definition has broadened to cover more classes of combatants over time. In the past summary execution of Pirates, Spies and Fran’s–tireurs have been performed and considered legal under existing International law. Francs-tireurs (a term originating in the Francs-Prussian war) are enemy civilians or Militia, the likes of Boko Haram in Nigeria who continue to fight in their territory; without wearing military uniforms and may otherwise be known as guerillas, partisans, insurgents etc. Constitutionally, the execution of the hard-hearted Islamic sect [Boko Haram], in Nigeria is legally right in the eyes of the law, since they are insurgents; more power to the elbow of the President and Commander-in-Chief of the armed forces of the Federal Republic of Nigeria General Muhammadu Buhari GCFR and all the soldiers of the Nigeria armed Forces for their die-hard resolution to eradicate Boko-Haram from the faces of Nigeria.
As a matter of legal necessity, Summary execution does not include killing a suspect who is directly endangering another’s life, which police can legally do always, in exception of executing a suspect under one’s control as a punishment. This is in tandem with section 33 (2)(a) of the 1999 constitution of the Federal Republic of Nigeria as amended 2011.
In the annals of the history of the world, a notable example of summary execution abounds especially during the Second World War (WWII) which started in the year 1939 – 1945. Adolf Hitler of Germany who was a key player during the Second World War gave his commando order that led to the Summary execution of a group of polish people who were executed by a firing squad in Kornik 1939, likewise the execution of 56 Polish citizens in Bochnia, near Krakow during the German occupation of Poland in December 1939 in a reprisal for an attack on a German Police. Though the Adolf Hitter’s Commando Order was later found to be a direct breach of the Laws of War and German officers who carried out those illegal execution under the Commando order were found guilty of war crimes. During the Nigeria-Biafra civil war which lasted between 1967-1970, a group of militant who called themselves BOFF summarily executed innocent Civilians in contravention to the Laws of War.
About the author
Akpu Peter Ndubuisi is a Progressive & a Law Graduate of the Ebonyi State University Abakaliki. For Enquiries, suggestions or contributions, you can send an Email to: [email protected]
or Call: 07065333142.