Abstract
The emergence of modernism saw most
Muslim-majority countries adopting legal criminal laws based on European
models. This has resulted in various controversies regarding the capital
punishment which international organizations such as the United Nations, has
deemed as inhumane and therefore call for its abolition. Although, many Islamic
countries has continued to retain the capital punishment in their penal system.
Many Muslim clerics around the world are in support of capital punishment for
suitable offences. However, there has been a small but growing groups of
Islamic clerics arguing in favour of abolishing capital punishment in Islam
based on certain arguments. In respect of this, the Muslim Ummah around the globe has often been thrown into confusion when
confronted with this contemporary debate especially concerning their position
on capital punishment as this type of punishment, despite its abolition in many
world countries, is still being retained in the criminal law penalties of many
countries. This paper therefore examines the position of the holy Qur’an and
the Hadith on capital punishment. It explores the basis for justification for
capital punishment in the Quran and Hadith as well as the crimes for which each
form of capital punishment is ascribed. Findings revealed the pronounced
offences for which capital sentence are ascribed both in the Holy Quran and the
Hadith. The study thereon recommends, among others, that rather than sentencing
capital offenders to quick death at first offence, legislative provisions should
be put in place to allow for rehabilitation of such individuals as a form of
second chance as this could help many realize their wrongdoings and vow
repentance.
Keywords: Capital
Punishment, Quran, Hadith, legal criminal laws.
Introduction
Capital punishment has overtime come
to be recognized as any punishment with high level of severity usually
administered for committed offences with equal level of severity. However, the
term “capital punishment” is more associated with instances in which punitive
measures is an outcome of a legal proceeding. This perhaps is why Uduigwomen
(2005) conceived it as the lawful infliction of death penalty
by the state on a criminal after been convicted within due process of law for
an injurious crime committed. This view is supported by Adewale (2019) who conceived capital
punishment as the killing of a crime perpetrator(s) under sentence enforced by
competent public authority. Hence, when decided outside the confines of a legally conducted deliberation,
it is most referred to as “jungle justice”. Capital punishment exists in many
forms. However, the most commonly pronounced and widely thought off when
capital punishment comes to mind is “death penalty” or “public execution” which
entails legal sentencing of people to death as a punishment for committed
crimes.
Capital as a
term was recorded to have originated from the Latin word; caputalis, which literally means “concerning the head” implying
execution by beheading (Adewale, 2019). It has also been recorded to have been
utilized by the Romans in referring to different issues regarding the head,
life or individual’s civil rights. Hence, capital punishment can simply be conceptualized
as the notion of extreme penalty (Davis, 2004). This type of punishment is not
new in the human society history as it has been practiced overtime in many
various societies around the world as the hardest form of punishment for
convicted criminals, religious as well as political rebels
or mutineers, often characterized with extreme torture and thereon execution
which were most often carried out publicly. Other forms of capital punishment are hanging, stoning, crucifixion,
drowning, beating to death, burning alive and impalement etc.
Statement of the Problem
Capital punishment in recent times has
overtime come to be the object of criticism in nowadays contemporary society
not only in Nigeria but across world countries globally with some sections of
the human society globally calling for the abolition of such punishment given
its inhuman nature and disregard for human life among others while another
section of the society argued in favour of retaining capital punishment.
Individuals and groups who argue in support
of retaining capital punishment justified their claim stating that it serves to
show the seriousness of a committed crime especially in the case of convicted
murder, stressing that it is only appropriate that a punishment be made to fit
the crime committed. There was also the argument that absence of death penalty
will result in the criminal law’s penalties losing its effectiveness overtime
as it will not different murder from other offences. It has been observed that
convicted murderers usually go to lengths to avoid the imposition of death
sentence on them. In this regard, capital punishment serves as an effective
deterrent to discourage potential murderers from committing murder and by so
doing, save the lives of innocent individuals in the society. Other critics in
support of abolishing capital punishment especially death penalty, have often
labelled as nothing but revenge. However, revenge implies private individual
enacting penalty outside the confines of the law. Hence, this position
indicates a misrepresentation of the mode of operation that characterizes
criminal sentences as capital sentences are not enforced by private
individuals, rather it is the duty of the government through legally
established criminal justice procedure.
That aside, the emergence of
modernism had seen most Muslim-majority countries adopting legal criminal laws
based on European models. This has resulted in various controversies regarding
the capital punishment which international organizations such as the United
Nations, has deemed as inhumane and therefore call for its abolition. In the
face of this debate, the Muslim Ummah
around the globe has often been thrown into confusion when confronted with this
contemporary debate especially concerning their position on capital punishment
as this type of punishment, despite its abolition in many world countries, is
still being retained in the criminal law penalties of many Islamic countries. To
this end, there is small but growing groups of Islamic clerics arguing in
favour of abolishing capital punishment in Islam. Their argument is based on
the fact that there is no agreement between the Ulamas on sacred texts’ interpretation, authenticity as well as
their application in social context. Also, Sharia law is often used as excuse
for tyrannical rule and oppression of women and children. More so, there are
instances in some countries where accused persons are often denied access to a
lawyer and summarily executed which completely contradicts the Islamic concept
of justice. The question now becomes what is the position of the Islam on
capital punishment and for which type of offences are capital punishment
prescribed in the holy Quran and Hadith. It is to this end, that this paper
examines the Quran and Hadith perspectives on capital punishment towards
providing important clarifications on the subject matter.
Islamic Perspectives on Capital Punishment
Traditionally, the religious laws in
Islam collectively referred to as the Sharia
recognizes and regulates capital punishment for a number of crimes such as murder,
rape, adultery, among others. These laws have been put in place towards
ensuring harmonious connection between humanity and their society. Hence, as
time changes and the society alongside humanity evolves, these forms of
punishment are also adapted to new happenings in the society to fit Islamic
principles and Islamic way of life given the growth and development witnessed
in Islam overtime. However, legal forms of capital punishment prescribed in
Quran and Hadith vary in terms of the crimes for which this type of punishment
has been prescribed for. This is discussed subsequently in the following
subheadings.
Quran Perspectives on Capital Punishment
Although there are mentions of
capital punishment in the holy Quran, this forms of punishment were only
prescribed for offences relating to mutiny or rebel against the state as well
as unintentional or intentional murder and they include death penalty,
crucifixion and cutting off hands and feet from opposite sides. This is
expressed in Suratu- Ma’idah which states that;
“The punishment of those who wage war against Allah and His Messenger,
and strive with might and main for mischief through the land is: execution, or
crucifixion, or the cutting off of hands and feet from opposite sides, or exile
from the land: that is their disgrace in this world, and a heavy punishment is
theirs in the Hereafter, Except for those who return repenting before you
apprehend them. And know that Allah is Forgiving and Merciful.”
-
(Quran
5:33 & 34)
However, let it be noted although
this above excerpt recognizes capital punishment for the offences earlier
mentioned, it also recognized repentance and most importantly, forgiveness and
mercy. This is a predominant theme in the holy Quran. Hence, it is very
essential that capital punishment be used only in a case where the convicted criminal
shows no repentance and in line with lawful justice procedure as stated in
Surat Al-An’am in verse one hundred and fifty-one as seen below;
“...Take not life, which God has made sacred, except by way of justice
and law. Thus does He command you, so that you may learn wisdom”
-
(Qur'an
6:151)
In the case of murder, the Quran
permits death penalty but mandates equality before the law. In this case, a
category of sentencing in Sharia, known as Qisas, permits the murder victim’s
nearest relative or family head a right to take the life of the killer but
insist that this must be approved by the court of law. On other hand, it also
provides that the victim’s guardian can choose to accept monetary compensation
otherwise known as Diyya as stated in
Suratul Baqarah, verse 178;
“O ye who believe! the law of equality is prescribed to you in cases of
murder: the free for the free, the slave for the slave, the woman for the
woman. But if any remission is made by the brother of the slain, then grant any
reasonable demand, and compensate him with handsome gratitude, this is a
concession and a Mercy from your Lord. After this whoever exceeds the limits
shall be in grave penalty.”
-
(Qur’an
2:178)
Following the above explications, it
is worthy to note at this junction that the method of stoning as a form of
punishment in Islam is not explicitly stated in the holy Quran. However, some Muslim
clerics has maintained that it is metaphorically implied in verse 58 of Surat
Al-Naml, as translated by Sahih International,
warning Muslims of possible consequence of sinning or committing crime in
Islam, as seen below;
“And We rained upon them a rain [of stones], and evil was the rain of
those who were warned”
-
(Qur’an
27:58)
Historians has however traced the origin
of this method of execution to pre-Islamic religions, particularly Torah and
Judaism, which are most dominant with stoning as a frequent method of execution
(Alasti, 2007). However, there exists evidences in prophetic Hadith. This is
subsequently discussed in this paper.
Hadith/Sunnah Perspectives on Capital Punishment
After the Quran, the Hadith, widely
regarded as a compilation of prophetic teachings which has overtime been seen
as second most trusted books aside the Qur’an, also bears evidence of prophet
Muhammed (SAW)’s prescription of capital punishment for certain crimes or
offences, most particularly adultery, otherwise known as “Zina” in Arabic, which
can be seen in Kitab Al-Hudud as stated below;
“Ubada b. as-Samit reported: Allah's Messenger as saying: Receive
teaching from me, receive teaching from me. Allah has ordained a way for those
women. When an unmarried male commits adultery with an unmarried female, they
should receive one hundred lashes and banishment for one year. And in case of
married male committing adultery with a married female, they shall receive one
hundred lashes and be stoned to death.”
- (Sahih Muslim, 17:4191)
However, it should be noted that the
above stated excerpt indicates only that stoning as a form of capital
punishment is welcomed by the prophet (SAW) and only in the case of adultery by
married individuals both men and women. In other words, adultery is the most
evident offence that attracts capital punishment as recognized and has been
made obligatory by the Hadith. This punishment is, however, only applicable in
a case where there is solid evidence or confession from the accused individual.
Hence, in cases where there exists no firm or solid evidence that the accused
individual is guilty of adultery or confession, it is illegal to administer
such punishment or any punishment at all. This is evident in Book 17, Hadith
4194 of Sahih Muslim which states that;
“Allah’s Messenger awarded the punishment of stoning to death to the
married adulterer and adulteress and, after him, we also awarded the punishment
of stoning, I am afraid that with the lapse of time, the people may forget it
and may say: We do not find the punishment of stoning in the Book of Allah, and
thus go astray by abandoning this duty prescribed by Allah. Stoning is a duty
laid down in Allah's Book for married men and women who commit adultery when
proof is established, or if there is pregnancy, or a confession.”
-
Sahih
Muslim, 17:4194
Furthermore, the four primary schools
of Islamic jurisprudence and the two primary schools of Shi’a fiqh also
prescribe capital punishment for certain category of crimes which includes;
intentional murder, Fasad fil-ardh which otherwise means the dissemination of mischievous
rumors or accusations in the land, treason, moral corruption against Allah
(SWT), social disturbance, homosexual activity, terrorism, adultery and piracy
of any kind (Mir-Hosseini, 2001; Omar, 2009; Mir-Hosseini, 2011).
Position on Capital Punishment in Contemporary Islamic Society
Execution of capital punishment in
Islamic countries takes different forms which can include beheading, firing
squad, hanging and stoning among others which are often carried out public in
some Islamic countries to heighten the severity of the crime and command
deterrence (BBC, 2009). However, each case is usually regarded and studied
individually with extreme care through thorough and strict investigations and
on the basis of solid and valid evidences upon which the court is left with no
iota of doubt before giving its verdicts and it is granted the authority to
enforce more lenient sentence as and when it sees fit.
Moreover, Islamic countries notable
with strict adherence to capital punishment in their practice of Sharia Law
includes United Arab Emirates, Yemen, Saudi Arabia, Qatar, Iran, Mauritian,
among others; associates capital sentence as justice for the most dominant
forms of crimes (BBC, 2009). However, countries like Bosnia, Albania among
others, still retain capital sentence as part of their penal system but hardly
ever enforce it in practice (BBC, 2009).
That being stated, research has
indicated that majority of the Nigerian population supports the retention of death
penalty on grounds that it deters crimes, prevent repetition of the committed
offence and is the most appropriate for the crime of murder (Adewale, 2019) as
any individual who values his/her own life should not have taken another person’s
life thereby denying that person his/her right to life, an ideological
principle which the Nigerian Criminal Law code also recognizes as it holds
among others, that a person is only entitled to right to live but forfeits this
right when he/she violates another person’s right to life.
More
so, capital punishment is well-grounded in the Constitution of the Federal
Republic of Nigeria (as amended) 1999 which recognizes death penalty as a legal
form of punishment when ordered by a court of competent jurisdiction for a
criminal offence for which the accused individual has been found guilty in Nigeria
(see, Section 33(1) Constitution of the Federal Republic of Nigeria (as
amended), 1999). Offences that attracts capital punishment in Nigeria includes
murder, homicide[1],
treason, instigating invasion of the country, felonies among others[2] and of recently,
kidnapping in states such as Imo, Akwa-Ibom, Bayelsa, Anambra, Abia, Enugu, Edo
and Ebonyi states (Abangwu & Adekunbi, 2013).
Moreover,
the judge is only granted the power to sentence the enforcement of capital
punishment strictly on basis that there is solid and valid evidence that
confirms that the accused individual is guilty of a capital offence. However,
there are exemptions to general rule of enforcing capital sentence in Nigeria.
This includes the exemption of juvenile offenders below seventeen years of age
(see, Section 368 (3) of Criminal Procedure Act, 2004)[3]; pregnant women (see, Section
368 (2) of the Criminal Procedure Act, 2004 and Section 300 (3) of the Criminal
Procedure Code, 2004)[4]; mentally ill individual[5] and women with nursing
children.[6]
Conclusion and Recommendations
Following the above, it can be
deduced that capital punishment is a most severe sentence and has been
prescribed for severe crimes such as mutiny or rebelling against the state in
the Quran and mainly adultery in the Hadith. However, at this juncture, it is
worthy to state that such punishment can only be commanded by a court for crime
of this nature. That being stated, however, both the Quran and Hadith has
established that no capital punishment should be administered without proper
and thorough investigation into the allegations; without firm evidence that
indicates that the accused is indeed guilty of the charges against him/her or
confession from the accused individual or reliable witness and most
importantly, without the accused being given a chance to repent from such sins.
Above all, Allah (SWT) and Prophet
Muhammed (SAW) has, both in the Holy Quran and Hadith respectively, largely
encouraged mercy and forgiveness. To this end, this study recommends that
chances be given to, especially for first time, offenders or committers of such
severe crimes before finally resorting to capital sentences as the last resort.
Allah knows best.
Also, in the usage of capital
punishment it is possible that innocent persons may end up being executed. To
this end, it is strongly advised that legal provisions be made to allow life
imprisonment in place of capital sentence except in cases where accused persons
are caught publicly and red-handed. Also, it is also strongly recommended that
instead of sentencing capital offenders to quick death, legal provisions be put
in place to allow for rehabilitation of such individual as a form of second
chance as this could help many realize their wrongdoings and vow repentance. In
view of this, such offenders should be protected from stigmatization through
requisite sensitization of the public. Allah knowns best.
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Abangwu &
Adekunbi (2013), Death penalty in Nigeria: To be or not to be: The controversy
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Adewale, S.
A. (2019). Capital punishment in Nigerian criminal justice administration: Need
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[1] See Sections. 315-317 Criminal Code Act, Cap
C38, LFN, 2004 and Sections 220-222 Penal Code Law Cap P3, LFN, 2004
[2] See Sections 37(1), 315-317 Criminal Code
Act, Cap C38, LFN, 2004, Sections. 159(2),220-222 &
411
Penal Codes law Cap P3, LFN, 2004 and Section 3(1) Geneva Conventions Act,1960
[3] Cap.C.41, Laws of the Federation of Nigeria
2004, See similar provision in section 272(1) criminal procedure code, cap 30,
Laws of Northern Nigeria 1963
[4] Cap C.41, Laws of the Federation of Nigeria
2004
[5] The Criminal Code Act cap C.38, Laws of the
federation of Nigeria 2004
[6] African Convention on Human and People’s
Rights Protocol on the Rights of Women in Africa P. 5 available at
http://www.achpr.org/english/ratifications/ratification women%20
protocol.pdf.lastaccessed Dec.20. 2010
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