The Future of the Defence of Provocation in Nigerian Criminal Law

Abstract

Provocation as a defence is subjected to a considerable degree of criticism especially in the countries where the abolition of capital punishment has taken place and in those of common Law jurisdiction. In these countries there has been an argument on the future of provocation as a line of a partial defence. This is because there are some problems associated with the reasonable relation rule and the question of objectivity in the defence of provocation.

In Nigeria, the defence of provocation is a partial defence and the law on provocation needs urgent attention. The doctrine of provocation, however, raises a number of problems for the law students, judges and the practicing lawyers. In the first place, there is the important question as to whether the provocation, in its application to homicide, is defined by the codes themselves or by reference to common law, however, the common law has continued to be a guide in the interpretation of the codes’ provisions. To this extent the law of provocation in Nigeria is supplemented by common law principles. For example, the proportionality rule, though not found in Nigerian codes, is frequently incorporated by the courts in their decisions. Provocation is, therefore, only a mitigating factor so that men will exercise some rational judgment in dealing with each other.

The plea of provocation is founded on loss of self-control both actual and reasonable. There is a combination of subjective and objective elements in the plea. Apart from the fact that the accused has received grave and sudden provocation, he must also have been provoked. The objective element in provocation emanates from the reasonable man test and includes the proportionality rule.

The second problem in the plea of provocation is the applicability of the objective test in Nigeria and elsewhere. Since the Nigerian legal system is influenced by the Islamic law, reference also will be made to the Maliki School of jurisprudence in the non-recognition of the plea of provocation by its doctrines.

Provocation as a defence has given rise to many conceptual difficulties and no easy solution presents itself. It is therefore aimed that this article will examine some aspects of the plea of provocation in an attempt to put it in more rational basis reflecting the basic realities in the Nigerian society of today.