What is Self-defence?
Self-defence is one of the recognised defences that excludes unlawfulness generally. According to Black’s Law Dictionary, self-defence is protecting oneself or property against injury attempted by another. The right of self-defence is an excuse for using force to resist an attack on a person.
The right to defend oneself by using deadly force is not unique to Nigerian Jurisprudence. The right to private defence, otherwise known in English Law as self-defence, which is an exception to a person’s enjoyment of the right to life under the Nigerian Constitution, dates back to the period of antiquity as an inherent right of man which enables him to protect his interest against wrongdoers. Self-defence is one of the fundamental rights of man for self-preservation. There is an instinct to defend oneself and one’s property, and positive law cannot but recognise this natural phenomenon. Self-defence in Nigeria is found in Section 33(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); the right to defend one’s body or the body of another is codified in Section 32(3) and Section 59. Section 32(3) of the Criminal Code provides, inter alia:
‘A person is not criminally responsible for an act or omission if he does or omits to do the act…. When the act is reasonably necessary in order to resist actual and unlawful violence threatened to him or to another person in his presence’.
Section 59 of the Penal Code, on the other hand, reads as follows:
‘Nothing is an offence which is done in the lawful exercise of private defence’.
Whereas the law recognises the instinct of self-preservation, it lays down certain limitations on the exercise of the right of self-defence. This is necessary if society is not to degenerate into anarchy with everybody taking the law into their own hands. These limitations are contained in Sections 286-294 of the Criminal Code and Sections 62-66 of the Penal Code.
The provision of Section 286 of the Criminal Code allows self-defence where the blow is a response to an assault that causes reasonable apprehension of death or grievous harm. The section is not available to a person who is abnormally nervous or excitable; the Court in R v Josiah Onyeamaizu held as follows:
‘Such a person may hope for clemency from other quarters; he cannot expect it from the law. It would be surprising, and indeed dangerous, if it were otherwise. The legal right to kill in self-defence cannot be made to depend upon the temperament, nervous or courageous, robust or weak, phlegmatic or excitable, of the individual killer. For those who claim to have exercised the legal right to kill, the law, insists upon on standard: it is the standard of reasonable man’.
Thus, for an intense non-judgmental view of the pragmatic nature of the use of the right to private defence, the recent case of Omoregie v State parades the recent decision of the Supreme Court on the pragmatic nature of the right to private defence.
In this case, the Supreme Court considered the provision of Section 32(4) of the Criminal Code. For the interpretation of the practical use of the right to private defence, the court highlighted the requirements that must be present before the defence of self-defence can avail an accused person. These are:
- The accused must be free from fault in bringing about the encounter.
- There must be a presence of an impending threat to life or of great bodily harm, either real or so apparent as to create an honest belief of an existing necessity.
- There must be no safe or reasonable mode of escape by retreat.
- There must have been a necessity for taking life.
The Supreme Court reemphasised that to sustain the defence, all the above ingredients must co-exist and be established. In the instant case, none of the above ingredients was present; therefore, the trial court rightly convicted the accused person. Also, the Supreme Court held that the defence of self-defence, if successful, is a complete defence or answer to the charge of murder or manslaughter.
The Duty to Retreat or Escape
In Nigeria, the duty to retreat in the face of an imminent threat to one’s life is drawn from the English Common Law duty to retreat in self-defence. The defender is expected to take reasonable steps to see that he tries to escape the threat posed by the assailant, and he can only resort to self-defence when it seems to be the last option. In a plethora of cases, the Supreme Court has established this as a principle in regard to self-defence in criminal trials. In Ajunwa v State (1988), the Supreme Court, per Obaseki JSC, approving and following the decision in Laoye v State (1985), held thus:
“Under our legal system, if a man is attacked in circumstances where he seriously believes his life was in danger of serious bodily harm, he may use such force as he believes is necessary to prevent and resist the attack. And if in using such force he kills his assailant, he is not guilty of any crime even if the killing was intentional. In deciding whether it was reasonably necessary to have used such force as was used, regard must be had to all the circumstances of the case, including the possibility of retreating without danger or yielding anything that he is entitled to protect.”
Note that this duty to retreat is different from the duty to quit and retreat, which is a requirement for self-defence from provoked attack. The provision of Section 287 of the Criminal Code, particularly in the second paragraph, made it clear that the protection offered in the first paragraph did not extend to a case in which the person using the 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 duty to retreat being discussed here is the duty to retreat as a requirement for self-defence from an unprovoked attack.
This duty to retreat, being an English common law duty, enjoys recognition in so many jurisdictions around the world; however, in recent times, many jurisdictions are abolishing this duty as a requirement for self-defence from an unprovoked attack. In the United States, some states have extended the defence of self-defence to include ‘no duty to retreat’, however popularly called ‘stand your ground law’.
Stand-your-ground law is a law that authorises a person to protect and defend their own life and limb against a threat or perceived threat. This law states that an individual has no duty to retreat from any place he/she has a lawful right to be and may use any level of force, including lethal, if he/she reasonably believes he/she faces an imminent and immediate threat of serious bodily harm or death; this is as opposed to duty-to-retreat laws.
Some Nigerian activists have advocated for the adoption of the stand your ground laws into the Nigerian criminal justice system, especially given the recent killing and destruction of lives and properties in different parts of the country and the government’s obvious failure to check the carnage.
In fairness to the Nigerian Judiciary, there have been some liberal applications of the duty to retreat and escape. In Aminu v. State, the Supreme Court per Nweze JSC, following the decision of the court in State v. Fatai Baiye Wunmi, held that the person threatened need not run away, but should show that he did not want to engage in the fight. According to the court:
“… where the circumstances of the unprovoked attack were sudden and unavoidable and the accused (person) cannot escape the probable fight due to where he was …., when the unprovoked attack began, and escape was impossible, it is to my mind only reasonable for him to defend himself.”
This liberal application, though helpful, is still prejudicial to Nigerians who frequently face attacks on their person and property without any help from the government. There is the need for an extension of the defence of self-defence in the constitution of the Federal Republic of Nigeria, 1999 (as amended) the Criminal Code Act and Penal Code Act to incorporate the duty not to retreat (Stand Your Ground Law) just like in the United States of America, and expunge from our laws the duty to retreat which seems to be problematic, to avail Nigerians and every person living in Nigeria the opportunity to defend themselves using deadly force, when attacked with deadly force, without first resulting to the common law duty to retreat, which in most cases leads to the victims losing their lives and properties
