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August 19, 2018

The Defense of provocation

The Emergence and Proscription of the Indigenous People of Biafra
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In 2007, Adebayo whilst standing on a crowded Bus in Lagos felt a man leaning close to him and breathing down his neck but endured the discomfort until the Bus stopped at Surulere by which time the deceased made a gay solicitation. Ade enraged beat him into Coma. The man died three days later. Ade was charged for murder. He pleaded provocation. In another development, Joy a housewife was routinely beaten by her husband each time the mother of three had an argument with the self-employed welder husband, Ikengwuruka. On one of such occasions, she waited till the husband was asleep before stabbing him with a knife. At her trial, for murder, she pleaded provocation.

In our earlier illustration, we gave an example of self defense which is essentially based on necessity and proportion. One of the defenses’ to a charge or indictment for murder is the defense of provocation which in criminal jurisprudence has been described as a form of temporary insanity or temporary loss of control. It arises more often in the cases of verbal abuses, infidelity and crimes of passion

As a matter of illustration, we repeat a familiar example; a farmer returns unexpectedly from his farm and finds a lazy man named Chuka sleeping with his wife. He is so provoked that he ran back to the farm to pick his Gun, returns and shoots his wife as the villain had escaped. Can the Farmer avail himself of the defense of having acted in provocation in an indictment for murder?

But first we need to understand the elements of the law  of provocation more clearly.

Provocation may be a defense by excuse or exculpation alleging a sudden or temporary loss of control as a response to another’s provocative conduct sufficient to justify an acquittal, a mitigated sentence or a conviction for a lesser charge. Provocation can be a relevant factor in a court’s assessment of a defendant ‘s state of mind, at the time of an act of which the defendant is accused. The defense of provocation is only available against a charge of unlawful and willful murder and only acts to reduce the conviction to a lesser offense of manslaughter. Thus “If the victim’s wrongful conduct contributed significantly to provoking the offense behavior, the court may reduce the sentence below the guideline range to reflect the nature and circumstances of the offense.”

The defense of provocation was first developed in English courts in the 16th and 17th centuries during which period, a conviction of murder carried a mandatory death sentence. As such, the need for a lesser offense arose. Thus according to a source, “During the 19th century, as social norms started to change, the idea that it was desirable for dignified men to respond with violence when they were insulted or ridiculed started to weaken, and to be replaced with the view that while such responses may not be ideal, they were nevertheless a normal human reaction resulting from loss of self-control, and, as such, they deserved to be considered mitigating circumstances”

During the end of the 20th century and the beginning of the 21st century, the defense of provocation, and the situations in which it should apply, has led to significant controversies, “with many condemning the whole concept as an anachronism, and arguing that it contradicts contemporary social norms that people are expected to control their behavior, even when angry and therefore not lay a claim to been provoked.”

Today, judging whether an individual should be held responsible for their actions depends on an assessment of criminal culpability. This is usually tested by reference to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did.

Another controversial factor of this defense, especially in Nigeria, is that the provoked must have carried out their act immediately after the provocation occurred, otherwise known as a “sudden loss of self control”. The controversy comes when it is asked “what is immediate”. This argument on the grounds of time still occurs and has caused many defendants, particularly women, to lose their cases on this ground, as they will often wait (in wife-battering cases) until the husband is asleep.

However In determining what amounts to provocation under Nigerian law, the court does not consider the susceptibilities of the accused. See  Adeyeye V State 2013 Vol 218 LRCN at page 34.



The concept of provocation is controversial, and there are many debates related to it. Critics bring several arguments against it, such as: people in contemporary society are expected to control their behavior, even when angry, and to not act on any impulse they may have

Provocation creates a culture of blaming the victim rather than the accused.

what is considered provocation is clearly subjective

Provocation laws are very difficult to enforce when the victim is dead and cannot present their version of facts for consideration.

the ‘ordinary person’ and or reasonable person test has been criticised for ignoring characteristics such as ethnicity and culture which affect a person’s capacity to lose self-control

There are, however, several counter-arguments to be made:

It could be argued that contemporary society’s expectation of citizen’s always controlling their behavior even when angry is an artificial social construct, and runs counter to biological human nature.

The removal of provocation as an acceptable defense, especially in cases of assault, has created a society where vicious verbal abuse and bullying is perceived as acceptable and even legally sanctioned, despite research that shows these can cause lasting psychological harm.

While victim blamingis a genuine problem, there are individuals who do exploit the modern legal system’s fixation on physical contact as the crime. Often this is done by intentionally baiting a target into attacking with personal insults and threatening body language (such as blocking someone’s path or route of escape), all the while carefully avoiding touching the target. When the target actually strikes them, even if no or minimal physical harm is inflicted, the provoker immediately feigns victimhood with law enforcement so the target will be arrested.

Some people accept provocation as a valid legal concept, but express serious concerns about the context in which it is used.



As in the case of the farmer, who caught his wife sleeping with another man, went back to his farm and returned to shoot his wife, the defense of provocation is not available to him. The loss of control the courts have repeatedly stated must lead to the immediate Act. There was sufficient time for his temper to have cooled on the way back to the farm and return thereto. Also in the case of Housewife Joy who had been repeatedly beaten and molested by the husband who waited for the husband to sleep before having her vengeance, such is the determination of the court that the act was not immediate and sufficient time has elapsed. However if the farmer had a gun with him and shot his wife on returning to his house and finding her in the arms of another man, provocation may avail him of acquittal, or conviction for the lesser offense of manslaughter or perhaps mitigation. In the end, criminal culpability is usually tested by reference “to a reasonable person: that is, a universal standard to determine whether an ordinary person would have been provoked and, if so, would have done as the defendant did.”

In the General Igbo society, murder is viewed seriously, outside of which any crime may be settled or treated lightly; hence the usual quip, “O gburu Madu?” The unlawful Killing of any human being cannot be excused lightly and provocation is not an excuse. In the olden days those who kill are killed or banished from the community. This is infact the ethnic factor. The religious factor is due to the influence of Christianity in our legal jurisprudence, provocation has become tolerable as a defense in the backdrop of the doctrine of forgiveness. But only in rare circumstances has it availed an accused person in our courts of justice.

Our culture agrees with the principle of control of one’s temper at all times rather than temporary loss of control especially in cases of murder. Our customary courts are precluded from trying capital cases and for that reason; there are no judicial pronouncements from our customary courts to illuminate the dark crevices of the Igbo concept of provocation under customary law.



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