Death Sentence on a Pregnant Woman in the Nigerian Criminal Judicial System By Grace Kalu

In the Nigerian criminal procedure, after trial of a capital offence and judgement is given, the defendant would be convicted and what follows is this pronouncement: ‘the sentence of this court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul.’

A sentence is that punishment imposed on a defendant after being convicted. Death sentence or Capital punishment is usually prescribed for offences like Murder, Armed Robbery, kidnapping and the like. The punishment could be executed via firing squad (for Armed Robbery), hanging and lethal injection.

Now, what does the law say about executing death sentence on a pregnant woman?

In the international sphere, it is expressly provided for in Article 6(5) of the International Covenant on Civil and Political Rights that the death penalty shall not be carried out on pregnant women. Article 30(e) of the African Charter on the Rights and Welfare of the Child places a requirement on states to prohibit the passing of a death sentence on mothers of infants and young children

The legal stance in the 36 states of the federation is that a pregnant woman shall be exempted from being sentenced to death. In lieu of the death sentence, she shall be sentenced to life imprisonment.

Section 368(2) of the Criminal Procedure Law (i.e the Criminal Procedure Act as domesticated by the Southern states) provides thus:

Where a woman found guilty of a capital offence is found in accordance with the provisions of section 376 of this Act to be pregnant the sentence of death shall not be passed on her but in lieu thereof she shall be sentenced to imprisonment for life”.

Similarly, Section 270 of the Criminal Procedure Code Law (i.e the Criminal Procedure Code as domesticated by Northern states) provides thus:
“No sentence of death shall be imposed on a person who is under seventeen years of age or on a pregnant woman”

Section 271(3) of that same law further provides that:

“Where under the provisions of subsection (2) of this section, it is proved affirmatively to the satisfaction of the court that the woman is pregnant, the court shall find accordingly and shall pass upon her a sentence of imprisonment for life.”

The position in Lagos is similar to the above. A combined reading of Section 311(1) and (3) of the Administration of Criminal Justice Law of Lagos 2015 provides as follows:

“Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the Court before which a woman is so convicted deems fit so to do, the Court shall, before sentence is passed on her, determine the question whether or not she is pregnant. Where, on proceedings under this Section, the Court finds that the woman in question is not pregnant, the Court shall pronounce sentence of death upon her.”

It is pertinent to note that the relevant status of the woman is not her status at the time of the commission of the offence but her status at the time of conviction. This means that even if the woman actually committed the offence but got pregnant while in detention during trial, she will not be sentenced to death upon conviction. Interestingly, a convicted and sentenced woman-convict who becomes pregnant before the execution will still have her sentenced changed. The proof in this instance must be highly convincing and overwhelming.

That said, the position of the law in the Federal Capital Territory, Abuja is different. In Abuja, the pregnant woman shall be sentenced to death. However, her execution will be stayed until the baby is delivered and weaned.
Section 404 and 415(4) of the Administration of Criminal Justice Act expressly provides thus:

“Where a woman found guilty of a capital offence is pregnant, the sentence of death shall be passed on her but it shall be suspended until the child is delivered and weaned.

Where in the proceedings under this section, the court finds the woman in question to be pregnant, the court shall sentence her to death”.

It is obvious from the above provisions that in Abuja, a pregnant woman will not have her sentence substituted for life imprisonment as it is with other states of the Federation.

However, this position is manifestly contradictory to the provisions of the Child’s Right Act.

Section 221(2) and (3) of the Child’s Right Act provides thus:

“No expectant mother or nursing mother shall be subjected to the death penalty or have the death penalty recorded against her. A court shall, on sentencing an expectant or a nursing mother, consider the imposition of a non‐institutional sentence as an alternative measure to imprisonment”.

The practical dilemma arises from the fact that both the Administration of Criminal Justice Act and the Child’s Right Act apply in the Federal Capital Territory, Abuja. In this instance, it is glaring that there is a clash of interest between the State and the Child. The interest of the state being that offences must be punished in line with the law. The interest of the innocent child on the other hand evidenced in the dire need of a mother beyond weaning.

It is my recommendation that the Administration of Criminal Justice Act be reviewed so as to present a synchronous position with that of the Child’s Right Act and the Northern and Southern States of the Federation. All in all, the underlying concern should be to uphold the best interest of the child.

Grace Kalu is currently a student of the Nigerian Law School, Lagos Campus. You can reach her on gkalu85@gmail.comor https://www.linkedin.com/in/grace-kalu-0b4196163

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