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 interests 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 is a student of the Nigerian Law School,
Lagos Campus. You can reach her on [email protected]^[1]
or https://www.linkedin.com/in/grace-kalu-0b4196163

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