Following remarks made by Former Minister of Defence, General Theophilus Y. Danjuma that citizens should defend themselves from herdsmen who are said to be wreaking havoc in communities across the Country, a Senior Advocate of Nigeria, Ben Nwabueze waded into the reactions, saying self-defence is legal and constitutionally allowed. Yet Nwabueze skipped a question.
It would be recalled that the retired General had asked Nigerians, especially the people of Taraba State, his home state, to protect themselves or risk being killed by herdsmen.
Speaking at the convocation of the Taraba State University, Danjuma said: “You must rise to protect yourselves from these people; if you depend on the armed forces to protect you, you will all die”.
According to Nwabuaeze who is a Constitutional lawyer, General Danjuma only re-echoed Section 33 of the 1999 Constitution, which, he says, guarantees Nigerians the right to self-defence.
He said had the Federal Government handled the issue at the beginning, the killings, destruction of properties, and the displacement of persons might not have occurred to the point of their escalation to a national calamity, and the point where self-defence becomes a national issue.
“Still armed with AK-47 guns, the Fulani herdsmen were thus enabled to kill people in Kaduna State on 29 March, 2018, and even on the very days the president was on a visit to some of the affected states – Plateau, Taraba, Zamfara and Benue.
“The action which the aggrieved individuals may take in self-defence, guaranteed by the constitution, must be viewed in the context of the extraordinary situation created by the Fulani herdsmen insurgency and the means they employ – AK47 and other sophisticated weaponry.”
The Senior Advocate of Nigeria (SAN) lamented that Nigerians must come to terms with the fact that the country has not been, and is not being, conducted with a due sense of responsibility as well as a due sense of shame.
He warned that the attacks, killings, destruction of properties, and displacement of people by Fulani herdsmen would ultimately force communities at the receiving end to resort to self-defence as guaranteed under Section 33(1-2) of the Constitution.
What the constitution says
Section 33 of the Nigerian Constitution recognises the sanctity of life and protects it. It provides that every person has a right to life and no one shall be intentionally deprived of his life.
- Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.
- (2) 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 law, of such force as is reasonably necessary;
(a) For the defence of any person from unlawful violence or for the defence of property:
(b) In order to effect a lawful arrest or to prevent the escape of a person lawfully detained; or
(c) For the purpose of suppressing a riot, insurrection or mutiny.
This is what is said to mean that a person can defend himself for fear of his life and property.
But one of the important limitations placed on the exercise of the right of self-defence is the requirement that a person who is unlawfully assaulted use only such force as is reasonably necessary to make effectual defence against the assault.
This is clearly laid down in section 286 of the Nigerian Criminal Code. The first paragraph of the section provides that:
“When a person is unlawfully assaulted, and has not provoked the assault, it is lawful for him to use such force to the assailant and is reasonably necessary to make effectual defence against the assault, provided that the force used is not intended and is not such as is likely to cause death or grievous bodily harm.”
The second paragraph of section 286 of the Nigerian Criminal Code provides:
“If the nature of the assault is such as to cause reasonable apprehension of death or grievous harm and the person using force by way of defence believes on reasonable grounds that he cannot otherwise preserve the person defended from death or grievous harm, it is lawful for him to use any such force to the assailant as is necessary for defence, even though such force may cause death or grievous harm.”
What this implies is that the accused must not be the one who initiated the encounter with the aggressor.
It also means at the time of the killing he must have believed himself to be in imminent danger of death or grievous bodily harm, such that he feared being killed if he does not act likewise.
There should also be no reasonable way to retreat or escape which might prevent both parties from getting injured or causing bodily harm to each other.
The defence of self-defence would avail any person who, acting without malice and intent to kill, kills a person who in his presence tries to kill or inflict grievous bodily harm on his child, father, mother, spouse or even on a person with whom he has no relationship.
