Understanding the Right to Self-Defence in Nigerian Law
Introduction
The Right to self-defence is a fundamental human right recognised across legal systems worldwide, including Nigeria. Â It is the right of an individual to protect themselves from imminent harm or danger, and it is firmly rooted in Nigeria’s constitutional framework and supported by statutory and common law principles.
In Nigeria, this right is not only constitutionally guaranteed but also reinforced through various judicial precedents and legal doctrines. Â It serves as a critical safeguard for personal liberty, allowing individuals to take reasonable action to defend their lives and property.
What is Self defence?
The term self – defence is derived from the Latin term “se defendendo”, meaning defending oneself.  Legally, it refers to the use of reasonable force to prevent imminent harm to oneself or others.  It is a  principle that justifies the use of force  – sometimes even lethal force – when a person reasonably believes they are in immediate danger and has no other means of escape.
In EKPOUDO v. STATE(2021) LPELR-52826(CA), self-defence was defined as
“the use of force to protect oneself, one’s family or one’s property from a real or threatened attack. Generally. a person is justified in using a reasonable amount of force in self-defence he or she reasonably believes that the danger of bodily harm is imminent and that force is necessary to avoid the danger.”
Where self-defence is successfully established, it negates criminal liability. Â For instance, if a person kills another while lawfully defending themselves, such an act does not amount to Manslaughter under the Criminal Code or Culpable Homicide not punishable with death under the Penal Code.
Legal Framework for Self-Defence in Nigeria
- The 1999 Constitution of the Federal Republic of Nigeria (as Amended)
The Nigerian Constitution, which is the supreme law, grants individuals the right to life. This right is explicitly stated in Section 33(1), which provides that:
“Every person has the right to life, and no one shall be deprived intentionally of his life, save in the execution of the sentence of a court in respect of a criminal offense of which he has been found guilty in Nigeria.”
While this section does not directly address self-defence, it implies that individuals have the right to preserve their life, which is fundamental to the right to self-defence.
Section 33(2) (a) provides as follows:
A person shall not be regarded as having been deprived of his life in contravention of this section, if he dies as a result of the use, to such extent and in such circumstances as are permitted by the law, of such force as is reasonably necessary- (a) for the defence of any person from unlawful violence or for the defence of property;
The corollary of this is that self-defence is constitutionally available to a person who is attacked by another.
- The Criminal Code and the Penal Code
Both the Criminal Code Act, and the Penal Code of Nigeria make elaborate provisions on the defence of self-defence. Â The Penal code which is operative in Northern Nigeria adopts the term “private defence” rather than the term “self-defence” used in the Criminal Code which is operative in Southern Nigeria.
The provisions of the Penal Code on self-defence are substantially similar to that under the Criminal Code. The provision spans sections 286-293 of the Criminal Code and sections 59-67 of the Penal Code Act.
- The Criminal Code Act (Southern Nigeria): Under Section 286, the Criminal Code provides for the justification of the use of force in self-defence. It states that a person is justified in using force to defend themselves if they believe they are under threat of harm. This provision allows a person to use a reasonable amount of force necessary to prevent harm, provided that the threat is imminent and the response is proportionate. Specifically, Section 287 stipulates that if someone attacks another person, the person being attacked may use force to protect themselves or another person from harm. However, the force used must be proportionate to the threat faced. If a person uses excessive force, they could be held liable for committing a criminal offense.
- The Penal Code (Northern Nigeria): The Penal Code also recognises the right to self-defence, particularly under Section 59, which provides that a person who is facing a threat may use force to defend themselves or others. As with the Criminal Code, the use of force must be proportionate to the threat and cannot be excessive.
Conditions for Justifiable Self-Defence
For an individual’s use of force to be considered justifiable under Nigerian law, certain conditions must be met:
- Imminence of Threat: Self-defence can only be claimed if there is an immediate reasonable apprehension of death or grievous harm. If the threat is not imminent or the danger is not immediate, the right to self-defence is not justified.
- Proportionality of Force: The force used in self-defence must be proportionate to the threat faced or imminently threatened against him and reasonable in the circumstance. This means that excessive force, or force used after the threat has subsided, can result in criminal liability. Additionally, the force used must also be necessary at that time.
- Absence of Aggression: The person claiming self-defense may not have initiated the conflict. Â If they are the aggressor, the plea may not succeed.
- Duty to Retreat: Where possible, a person should attempt to retreat or avoid the confrontation. Â However, if escape is not feasible, Â self-defence may still be justified.
Judicial Interpretation and Case Law
Nigerian courts have dealt with several cases where the issue of self-defence was raised. In interpreting the law, the courts often emphasize the proportionality of the response and whether the threat was immediate. A landmark case in Nigeria, R v. Akinwande (1953), illustrates how Nigerian courts assess self-defence claims. In this case, the court ruled that the defendant was justified in using force to defend themselves from an imminent threat but cautioned that the force must not be disproportionate to the threat faced. Another case, R v. Kanu (1962), established that even if an individual is attacked by multiple people, they are still allowed to defend themselves, but only to the extent necessary to neutralize the threat. See Ita & Anor V. State (2013) LPELR-21392(CA) and Mohammed V. State (2020) LPELR-50919(CA).
The Burden of Proof
On the issue of burden of proof, the accused will normally raise the issue of self defence where it is relevant but the burden of proof remains throughout on the prosecution and it is not at any time on the accused for him to establish that defence if the court is left in doubt as to whether the accused was acting in self defence, he should be acquitted. In Baridam V State, the Supreme Court held that:
The onus is always on the prosecution to disprove the accused’s defence of self defence and not on the accused to establish his plea. Thus, the defence of self defence will only fail where the prosecution shows beyond reasonable doubt that what the accused did was not done by way of self defence.
Conclusion
The right to self-defence in Nigeria is an essential aspect of personal liberty and security. It is protected by both the Nigerian Constitution and relevant criminal laws, allowing individuals to protect themselves from harm or unlawful violence. However, the exercise of this right must be reasonable, proportionate, and within the bounds of the law. Judicial interpretations and case law have helped clarify the parameters of self-defence, ensuring that it remains a balanced and justifiable legal concept. Despite challenges in enforcement and application, the right to self-defence remains a critical component of Nigeria’s legal system, reflecting the universal need for individuals to protect their lives and well-being.
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