By Ekenobi ThankGod Chinonso

Introduction

The arguments and debates for either the retention, or abolition of death penalty in the Nigerian criminal justice system has remained a recurring, continuous, topical and neverending one, this debate is not only peculiar to Nigeria, but also in other parts of the world whose Constitution sanction death penalty. In Nigeria, the death penalty debate which seemed to have been jettisoned for some time now, has suddenly been resurrected following recent sentences by the Nigerian courts; the Case of Mariam Sanda, decided in January 2020 at the Federal High Court Abuja1. Another recent Sentence was by an upper Sharia Court, Kano State Nigeria, involving a 22 year old Singer Yahaya Sharif-Aminu who was sentenced to death in August 10th 2020, for blaspheming against prophet Muhammed in his viral song on WhatsApp circulated in March2. Yet another one involving a 70 year old man, convicted of the crime of Rape by a Sharia Court in Kano State3, consequently, a death sentence was equally passed on him4. These are only few amongst thousands of death sentences handed down by Nigerian Courts over the past years, and as expected, public opinion has been divided as to the legality, Propriety, sustainability and relevance of death Penalty to the Nigerian criminal justice system. While some Nigerians are in support of death penalty, hence its retention5, there are others who are of the opinion that death penalty has not served any useful purpose, hence should be abolished6. This article will examine some categories crimes in Nigeria that carries death penalty, its legality, and Propriety vis-a-vis the global approach. And ends with the writer’s position on the death penalty debate and recommendations on alternative punishments in its stead.

  Keywords: Death Penalty, Capital Punishment, Inhumane treatment, Restorative Justice, Retributive Justice.

Definition, Origin of Death penalty.

Death Penalty is a form of Capital Punishment which is almost as old as Man himself, it has been in existence since the beginning of the world, and drew its origin from the Holy books of the two dominant religions in Nigeria, and was also a means of Punishment for severe offences under the various customary laws of the diverse ethnic groups which today make up the entity known as Nigeria. Death Penalty has been defined as: “1. CAPITAL PUNISHMENT. 2. A penalty that makes a person or entity ineligible to participate in an activity that the person or entity previously participated in• The penalty imposed because of some type of gross misconduct”7.  Capital Punishment has also been defined as: ” A Criminal Penalty that involves killing the perpetrator; the sentence of death for a serious crime”8. It is clear from the above, that death penalty refers to the ending of the life a person who has been convicted of a serious offence which carries death as its penalty, through the process of a court of competent Jurisdiction.

During the precolonial era, when customary law was the only source of law in the territories and communities which today make up Nigeria, Death penalty served as Punishment for very severe offences which includes interalia: Murder, Offence against the gods, rape, violent stealing, adultery, witchcraft, incest and other sexual misconducts, disrespect for Oba, etc9. Death penalty equally has its origin in the holybooks. In the Christian Bible for instance, killing is a capital offence and attracts death sentence10, it further provides: “He that smiteth a Man, so that he die, shall be surely put to death11. Others are: intentional murder12, smitting of ones parents13, kidnapping and cursing one’s parent (s)14. Life for life, eye for eye, tooth for tooth, hand for hand, etc15. In the Quran, several offences were equally made punishable with death penalty16. The formal and conventional capital Punishment in practice in Nigeria today, was introduced to the Nigerian administration of criminal justice system with the enactment of the Criminal Code Act in 1916 during the Colonial era17, the introduction of the Criminal Code Act led to the divestment of criminal offences from the purview of customary and Islamic laws, hence only the offences whose punishments were provided Under the written (criminal Code) Act were punishable18. Currently, provisions penalizing certain conducts with death punishment are replete in our statute books, we shall next examine these provisions.

Offences that attract Death Sentence in Nigeria

Certain Offences Under our Various Criminal Laws carries death sentence, consequently, when a person is found guilty of any of these crimes, the Judge is obliged to sentence that person to death and has no discretion at all, whether or not to19. These provisions Can be found in the Criminal Code20  and they Include: Treason and aiding invasion against the Country (Treasonable felony)21, treachery22, Murder23. Under the Penal Code also24, certain offences are as well Punishable with death, these include interalia: “(I)giving false evidence in a trial, which leads to the execution of an innocent person; (ii) abetting the suicide of a minor, or a mentally abnormal or drunken person; (iii)in the case of a person already serving a life sentence, attempting to commit culpable homicide; (iv)sodomy, (v) adultery (zina), (vi)apostasy, (vii)rebellion; and (viii) hiraba, translated as highway robbery, rape25. The Robbery and Firearms (Special Provisions) Act26, prescribes death penalty for crime of armed robbery27. Also, the Armed Forces Act28, prescribes death penalty for any armed forces personnel convicted of, among other offences: (a) misconduct in Action29, Mutiny30, Malingering31. Additionally, the Sharia Penal Law operating in some States of Northern Nigeria, has equally criminalized certain conducts: adultery, blasphemy against Prophet Muhammed, apostasy, among others32. Such Provisions prescribing death penalty for certain offenses are replete in our Statutes books, hence raises concerns amongst several human rights organizations both at the national, and international level who have on several occasions called for its abolition; as according to them, death penalty serves no useful purpose, hence, has outlived its usefulness. Secondly, they have also argued that several international treaties have invalidated death penalty as a punishment, hence, Countries that still retain death penalty are in breach of these international treaties33. Despite the concerns expressed by these rights activists over the retention of death penalty, Some Southern States have in recent years gone ahead to also gone ahead to increase offences that attract death penalty thereby add more salt to the injury, this move was due to the rising spate of Crimes, which has assumed a worrisome proportion in these states, these crimes range from: Kidnapping, Armed Robbery, Murder, rape etc. States like IMO, Abia, Bayelsa, Akwa-Ibom, Anambra, Ebonyi, Enugu and Edo State , have all gone ahead to adopt death penalty for the Crime of kidnapping, in addition to previous capital offences34.

              Death SentenceS EXECUTED IN NIGERIA in the past.

 

Major incidences of such executions were carried out during the military era, some of which were targeted at opponents and enemies of the military administration then in power, others were armed robbery and kidnapping related crimes which became rampant after the Civil war.. First such public executions was carried out in 1971 during the military era, when 3 Men convicted for armed robbery Babatunde Folorunsho, Joseph Ilobo and  Williams Alders Oyazimo, a sub-lieutenant in the Nigerian Navy, where executed via firing squad at Bar Beach Lagos, that marked the beginning of death punishment in Nigeria35. Then followed by other executions majorly during the military era. Ishola Oyenusi was on 8 September 1971, executed alongside 8 members of his armed robbery gang36, Lawrence Anini on March 29th 198737, and in 1990, the major general Ibrahim Babangida’s military regime executed 42 men who were found guilty of coup plotting, via firing squad38, this was despite calls from several international and national human rights organizations to halt the executions. In 1995, the Sani Abacha military administration executed 43 persons for several armed robbery offences39 ; Environmental rights activist, Ken Saro Wiwa was also executed alongside 8 other MOSOP members (Also known as Ogoni 9), were executed by hanging for allegedly killing 4 Prominent Ogoni Traditional Chiefs, this sparked international condemnation, leading to Nigerias suspension from the Commonwealth of nations for 3 years40. Again In 2006, 8 persons where executed at different States for various crimes. The last known execution however, was carried out in Edo State, in 2013, involving 4 persons convicted of armed robbery, rape and murder, whose execution was signed by the Edo State Government and Consequently, executed even while their Appeal was still pending, a move Amnesty International described as “a truly dark day for human rights in the Country”41. And Since then, no new Execution has been carried out even though several thousands of death sentence have been imposed by the Courts, hence over 3000 inmates are currently on death row in various prisons across the country, with some having spent over 10 years on death row42, though the Nigeria Correctional service Act provides that where a person under death sentence has exhausted all appeal options, and having spent 10 years without the sentence being carried out, the Chief Judge may commute such death sentence to life imprisonment43, but to the knowledge Of this writer, there has so far been no record of such commutation. In 2016, Nigeria recorded its highest rate of death sentences for a single year at 527 death sentences, a development Amnesty International described as “massive and worrying spike”44.

DEATH SENTENCE: HOW EXECUTED.

the mode of Execution of death penalty has been prescribed in the various Criminal Procedure Enactments. For Instance the CPA provides that the offender is to be hanged on the neck till he be dead45. Similarly, the CPC provided “When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead”46. The ACJA 2015 which repealed the CPA, and CPC provided that Execution may be carried out by hanging the convicted person on the neck till he die, or by lethal injection pursuant to the order of Court47. The Robbery and Firearms Act provides: “The sentence of death imposed under this section may be executed by hanging the offender by the neck till he be dead or by causing such offender to suffer death by firing squad as the Governor may direct”48.

However Certain persons are exempted from Death penalty even where the offence they’re charged for prescribes death penalty as its ultimate punishment. Thus Pregnant women are exempted from death punishment, hence the Execution is suspended to when she puts to bed, and until the baby is weaned49, the death penalty may subsequently be commuted to life imprisonment50.

Juvenile offenders are also exempted from death penalty, hence where a person is convicted of a capital offence for which death is the punishment and it comes to the knowledge of the Court that such offender is below the age of seventeen, the court will not record such death penalty but would instead order that the juvenile offender be detained at the pleasure of the president where the offence is a federal offence, or at the pleasure of the Governor in the case of State offences51, thus in Modupe v State52, the Supreme Court held “If at the time the offence was committed, an accused charged with capital offence has not attained the age of 17 years, it will be wrong for any court not only to sentence him to death, but also to even pronounce or record such sentence”. ACJA 2015 raised the age to 18 years and provides for life imprisonment or lesser punishment, in lieu of death penalty52, this new provision with regards to age is in accordance with the International Covenant on Civil and Political Rights, American Convention on Human Rights, African Charter on Rights and Welfare of the Children, and International Convention on the Rights of the Child, all of which prohibits death sentences for persons below 18 years53.

Also, persons suffering from Insanity are under the Law not criminally liable, if it can be proved that such person was not mentally stable at the time of commission of the crime54, however the burden of proving Insanity at the time of committing the crime rest on the defendant and such burden must be discharged by proving the lack of the following:(1) his capacity to understand what he was doing: or (b). of his capacity to know that he ought not to do the act or make the omission, or (c). of his capacity to control his actions, due to the alleged infirmity55.

Nursing mothers are also exempted from Execution for any capital offence she must have committed, this is contained in  African Convention on Human and People’s Rights Protocol on the Rights of Women in Africa, to which Nigeria is signatory56.

                   The Legality Debate.

There has been continuous debate over the Legality of death penalty, with some advocating for the abolishment of death penalty in its entirety for violating the provision of section 33 of the 1999 Constitution which provides that every Nigerian has a right to life57. To this writer however, it is wrong to say that death penalty is illegal in nigeria, this is because section 33 of Constitution that guarantees the right to life also went on to qualify the right in the following words: “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“58, now the implication of this provision is that, this right to life can be derogated from pursuant to a Court sentence for a criminal offence for which the person has been tried and found guilty of in Nigeria, provided The person must have exhausted all appeal options available to him. In the Case of Kalu v the State59, the appellant contended that his death sentence pursuant to section 319 of the Criminal Code of Lagos State was in violation of his right to life under section 30 of the 1979 Constitution (similar to s.33 1999 CFRN), and is also in violation of his freedom from inhuman and degrading treatment, to these the supreme Court held: “The question is: can the passing of a sentence of death recognised by the Constitution in section 30 subsection (1) thereof be equated to torture and degrading treatment? The contention of the appellant is that a sentence of death is degrading and inhuman and therefore it is inconsistent with the provisions of Section 31 subsection (1) (a) of the Constitution, In his effort to substantiate the contention, learned counsel for the appellant cited a number of cases decided in other jurisdictions of the world. Useful as those decisions might be passive authorities, with respect, I do not find them applicable to the present case.’’. Also in “Joshua Vs. State (2009) All EWLP (pt. 975) 1020 (CA), the Court of Appeal, relied on Kalu Vs. State (supra) and held that though abolished in other jurisdictions, the Constitution of Nigeria still recognizes the death penalty. In GABRIEL VS. STATE (2010 6 NWLR (pt. 1190), the intermediate court rejected foreign decisions and held that the death penalty is constitutional in Nigeria; just as the apex court did in AMOSHIMA VS. STATE (2011) All FWLR (part 597) 601 (SC), where it held that the death sentence is not unconstitutional and did not derogate from the hallowed doctrine of separation of powers”60, the Supreme Court further held in the Kalu‘s Case: “The position in Nigeria is very clear.  Death sentence is a reality.  It is provided for by our criminal laws including section 319 subsection (1) of the Criminal Code of Lagos State.  Our Constitution also recognizes the death sentence – see in particular sections 31(1) 213(1)(d) and 220(1)(e) thereof.  Therefore, the sentence of death in itself cannot be degrading and inhuman as envisaged by section 31 subsection (1)(a) of the

Constitution.  The Constitution is not intended to approbate and reprobate.”61. Thus, death penalty as contained in our criminal statutes is not unconstitutional or illegal, rather they’re in accordance with the provision of the Constitution which qualified the right to life by providing that it can be derogated from in the following conditions: “(a) it is in execution of a sentence of court; (b) for the defence of any person from unlawful violence, or for the defence of property; (c) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; and (d) for the suppression of a riot, insurrection or mutiny“62. Furthermore the Constitution of Nigeria Under sections 233(3)(d), and 241 (1)(e), recognizes death penalty. In any case, majority of the Nigerian populace seems to support the continued retention of death penalty63.

         Rights of a Death Row inmate

 

The freedom from inhuman and degrading treatment extends also to condemned persons on death row, pending their execution, they are entitled to right to their freedom of human dignity even while on death row. Thus, the prison where such person is to be kept must be such that the person’s comfort and dignity of human person must be guaranteed pending Execution. Therefore, “a convict on death row is entitled to challenge torture, inhuman or degrading treatment arising from a prolonged delay in executing him”64. In In Ogugu V. The State65, the Supreme Court held that, “the executive and judicial authorities must accept responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing reasonable time to appeal and consideration or reprieve”. The convict is also entitled to exhaust all Appeal options constitutionally available to him, before any execution may be carried out in the event the conviction is upheld on Appeal up to the Apex Court of the Land, hence appeal puts to abeyance the sentence of Death pending the determination of the Appeal. In the Case of Nosiru Bello v AG Oyo State66: the deceased was convicted of armed robbery by the robbery and firearms tribunal in Oyo, and subsequently, sentenced to death, he Appealed to the Court of Appeal, but while his Appeal was still pending, the government of Oyo State went ahead to Execute him. The Family sued to enforce the deceased’s right, the trial Court held that the execution of the deceased while his Appeal was still pending was illegal and awarded damages against the Oyo State Government, the Court of Appeal upheld the decision, the Supreme Court also upheld the decision and held that the premature execution of the deceased was a blatant violation of his right to life. Hence, a convict is still entitled to his fundamental rights pending his execution. Thus according to Belgore JSC (as he then was) “At any rate, if after death sentence has been passed and the accused is in prison custody, if anything arises outside the normal custody that amounts to “torture or inhuman or degrading treatment”, that will be cause of action under fundamental rights but not militating against the sentence of death. In such a case the death sentence stands.“Inhuman and degrading treatment” outside the inevitable confinement in death row will not make illegal the death sentence, rather it only gives ground for an enforcement right under the Constitution”67.

Propriety of Death penalty in 21st Century.

The continued occurrence of death penalty in our statute books, plus recent waves of death sentences being dished out of our Courts in Recent times has stirred up unending debates over its Propriety and relevance as a deterrence to criminals and prospective criminals. While the majority of Nigerians are in support of its retention for reasons mostly related to religious principle of an eye for an eye, and life for life68, infact a cleric was reported about a week ago to have said that any Muslim Lawyer who speaks against death penalty has automatically renounced the Religion69, this is based on the belief that capital punishment is in line with God’s commandments and so therefore must stand irrespective of what any man thinks of it. Another reason is the Desire to exact vengeance in accordance with the customary Reciprocal Justice system where an injured person, or relatives of a deceased were allowed to exact vengeance on the killer of their dead relatives, also the belief that death penalty would serve as deterrent to potential criminals hence reduce crimes to the barest minimum. Another is the belief that death penalty best serves the concept of retributive Justice which is founded upon the notion that he who harms another is to be inflicted with equal degree of harm. Also, there is this opinion that a person who has decided to misuse his right to life against the right of others, deserves to have that right to life of his revoked by the State so others would have peace of mind. Lastly is the belief that death would take the offender permanently away from the society thereby prevent the possibility of the offender repeating the offence, these notions have been justified by reference to this passage by  Miller: “the use of death penalty goes beyond the reduction in the number of violent murders by eliminating some of the repeat offenders, but rather it is being used as a system of justice, not just a method of deterrence”70a, and the case of Josiah V. State  where the Apex Court held: “Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two – way traffic. It is really a three-way traffic – justice for the appellant, accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, whose blood is crying out to heaven for vengeance and finally, justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of”70b.

To this writer however, death penalty hasn’t really served any useful goal as an instrument of deterrence, neither has it helped in curbing crimes or its reduction, rather crime rates is still on the increase exponentially despite the existence of death penalty in Nigeria. Kidnapping, Armed Robbery, Terrorism, Rape and other capital offences are still increasing in greater magnitude across the nation, and assuming a daring and fierce dimension by the day, hence the idea of deterrence has been defeated as death penalty hasn’t served that purpose71.

Secondly, the concept of retributive Justice is outdated and its obsolescence in the 21st Century global justice system goes without saying, the globe today is tilting more towards restorative, reformative and rehabilitative Justice, this accounts for why Countries of the world are gradually doing away with death punishments in their administration of Criminal Justice System, the emphasis presently, is on reformative and rehabilitative Justice72.

Thirdly, executing death punishments against offenders would merely make the State a willing accomplice in reciprocity and retaliatory measures, hence similar to what was obtainable in some ancient communities during the precolonial customary law days, before the Advent of the conventional and organized Criminal justice system law, a period when retaliation and reciprocity was a useful tool of settling Disputes. State should rather be concerned with maintaining order in the society and ensuring that straying members of the society are rehabilitated and reformed to become law abiding thereby contributing to the development of the society.

Fourthly, the mode of Execution of death penalty violates the dignity of human person and freedom from inhuman and degrading punishment and torture as guaranteed under section 34 CFRN 1999, the idea of Death by hanging, firing squad, stoning and the likes in public cheapens human life and makes life seem worthless and insignificant. This brings about social stigma on not just the person being executed, but also extends to the person’s relatives73.

In any case, life imprisonment would best achieve the goal of deterrence, Reformation, reorientation,  and elimination of crimes and criminals from our society, than death penalty, hence such Convicts are confined for life and alienated from the society so as to serve the purpose of deterrence while also ridding the society of such categories of offenders.

Also, considering the inherent defects in our administration of criminal justice system, starting from mode of arrest by the police, who on several occasions arrest innocent persons and force them to write and endorse extrajudicial statements under intense torture which in most cases are riddled with false accusations and fabricated evidence, which the Courts rely on in many cases to convict the accused even where the accused tries to deny the written statement in Court, plus the reliance on mere technicalities in some cases to dismiss the accused person’s Appeal without hearing the substance of the Appeal, also the mistakes or in some cases incompetence of the defence lawyer, have on several occasions been fatal to the case accused, hence the Courts without considering all these would in several cases send an  innocent person to the gallows for crimes he perhaps knew nothing about. It has also been suggested that capital punishment has always been used against those without capital, hence the rich who commit worse crimes everyday are left to go scot free because they have capital to buy their way out of Justice, while the poor are made the scapegoats74.

Several occasions abound where the innocent has been found guilty of some capital crimes by the Court and consequently executed, only for fresh evidence to emerge decades later exonerating such executed person of any complicity in the crime, and the unfortunate thing about death penalty is that once it has been imposed and upheld by the Apex Court, it cannot be reviewed later on, save the President or Governor exercising his power of Prerogative of Mercy, grants such person pardon unbehalf of the Country or State as the case may be75. Or for a person who has spent 10 years on Death row, the Chief Judge may now commute such death punishments to life imprisonment pursuant to the Nigerian correctional service Act (Supra). References now will be made to (American) cases where the innocent were executed, but later on found to be innocent.

Cameron Todd Willingham—In 1992, who was convicted of arson murder in Texas, was believed to have intentionally set a fire that killed his three kids, and executed In 2004, Unfortunately, the Texas Forensic Science Commission later discovered that the evidence was misinterpreted, and so it was found that none of the evidence used against Willingham was valid. As fresh facts shows the fire really was accidental76.

Carlos Deluna: Convicted in 1983 and executed in 1989, A Chicago Tribune investigation published in 2006 uncovered groundbreaking evidence that Texas may have executed an innocent man in 1989. The defendant, Carlos DeLuna, who was executed for the fatal stabbing of Texas convenience store clerk Wanda Lopez in 1983, the evidence uncovered by reporters Maurice Possley and Steve Mills cast doubt on DeLuna’s guilt and pointed towards another man, Carlos Hernandez, who had a record of similar crimes and repeatedly confessed to the murder. A news piece aired on ABC’s “World News Tonight” also covered the story. Thus it was discovered that Deluna was wrongly executed for the Crime committed by Carlos Hernandez77.

Ruben Cantu— who was 17 at the time the crime he was accused of took place, was convicted of capital murder, and subsequently in 1993, he was executed. About 12 years after his death, investigations revealed that Cantu likely didn’t commit the murder. The lone eyewitness whose evidence was relied on to convict Cantu recanted his testimony, and Cantu’s co-defendant later admitted he allowed his friend to be falsely accused. He confessed that Cantu wasn’t even there the night of the murder78.

David Wayne Spence—Spence was executed in 1997 for the murder of three teenagers in Texas. He was supposedly hired by a convenience store clerk to kill someone else, but he allegedly, mistakenly killed the wrong people.The supervising police lieutenant said “I do not think David Spence committed this crime.” The lead homicide detective also agreed, saying “My opinion is that David Spence was innocent. Nothing from the investigation ever led us to any evidence that he was involved.”79.

Thomas Griffin and Meeks Griffin— This happened to be the oldest case on wrongful conviction and execution of the innocent (1915). The Griffin brothers, two black men, who were convicted of the murder of a white man. Their conviction was because Monk Stevenson, another black man who suspected of committing the murder, pointed to the brothers as the culprits. He later admitted that he lied against them because they were wealthy, and he assumed they had the money to beat the charges. The Griffin brothers were completely innocent, but were nonetheless executed!80.

Jesse Tafero— (1976): Tafero was convicted of murdering a state trooper. He and Sonia Jacobs were both sentenced to death. The main evidence relied on to convict them was testimony by someone else involved in the crime, ex-convict Walter Rhodes, Rhodes gave this testimony in consideration for a life sentence. In 1990, Tafero was put to death. Two years later, his companion Jacobs was released for lack of evidence…the same evidence used to sentence Tafero to death81. These are just few amongst many wrongful conviction and execution of the innocent, and considering Nigeria’s grossly defective administration of Criminal Justice system, one can’t tell how many innocent people could have been Convicted and sent to the gallows for crimes they never committed nor knew anything about.

There has been in recent years, a wave of deliberate efforts globally aimed at eliminating death punishments through treaties. For instance, the UN second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) aimed at the abolition of the death penalty (Nigeria is not a signatory to it), also the guidelines to European Union (EU) policy towards third world countries on the death penalty, adopted by the European Union in June 29th, 1998 emphasised that one of the EU’s objectives is ‘to work towards the universal abolition of the death penalty as a strongly held policy view agreed by all EU members’.  Lastly, the United Nations General Assembly Resolution 62/149 and 63/148 of 2007, which seeks to place a moratorium on death penalty82.

However, these treaties are not binding on Nigeria since they have not yet been ratified by the national assembly pursuant to section 12(1) CFRN 1999 which provides “12. (1) No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly.” Hence, they are only of persuasive authority. In any case, even if the national the national assembly goes ahead to ratify these international treaties, they would nevertheless be unconstitutional, since death penalty is still constitutional in Nigeria83.

As at 2012, 141/192 Countries had abolished Death penalties84.

The federal government of Nigeria Under former president Olusegun Obasanjo set up Two expert groups-the National Study Group on Death Penalty (2004) and the Presidential Commission on Reform of the Administration of Justice (2007) – recommended a moratorium on executions because the criminal justice system cannot guarantee a fair trial. These recommendations are apposite especially considering our defective criminal justice system, however, despite the commendations that greeted this initiative from various human rights group, these recommendations were jettisoned and consigned to the dust bin of Oblivion85. In October 2014, former

Delta State Governor Emmanuel Uduaghan pardoned three inmates who were on death row following the recommendations by the State Advisory Council on Prerogative of Mercy86. However, In 2017, the Nigerian government rejected the call by Amnesty International to halt the planned execution of some inmates in Lagos State.

 

                     Recommendations.

Having failed to achieve its desired ends of serving as a deterrent, and having proved ineffective in eliminating crimes and criminals from the society, it is the writer’s submission that death penalty has outlived its usefulness, hence should be outlawed and expunged from our administration of Criminal Justice system.

  1. The Constitution should be amended and death penalty substituted with life imprisonment or less, which is also another equally efficacious punishment With deterrent effect; instead of eliminating the convicted criminal entirely, thereby dispensing with their potential contribution to the development of the society. Executing a criminal adds nothing to the society, furthermore, the families of his victim stands to gain nothing is a Convicted murderer of their deceased relation is executed.
  2. While his jail term, as part of their punishments, the Government may engage the convict in some profitable labour either in the agricultural sector, or for private individuals/organizations under strict security supervision. That way, they’ll be beneficial to State, and part of the proceeds of their labour remitted regularly to the family of their victims (in murder cases) as compensation allowances for the injury they suffered due to the loss of a loved one.
  3. The State of our prison should be improved, as the idea of packing over 40 prisoners in a single prison room is unacceptable and violates their rights to dignity of human person, and freedom from inhuman and degrading treatment.
  4. Government must make Provisions for scholarships and reorientation of prisoners while in the prison to impact in them positive morals and values to become better members of the society and to contribute meaningfully to the development of the society, incase they are pardoned in the future. Researches have shown that Nigerian prisons have deteriorated to a breeding ground for criminals, hence, a person who gets there as an amateur criminal, is sure to come out a worse criminal than he was before.
  5. The entire administration of Criminal justice procedure needs to be overhauled, starting from the mode of arrest and investigation by the police, to the trial process in the Court, to the Correctional facility. The criminal justice system currently, is so full of rot and its rottenness smells to the high heavens! Hence the need for a Reformation and redefinition of our criminal justice system so as to minimize incidences of the innocent being sent to the gallows for crimes he or she might never have committed.
  6. The legal aid Council must equally review its criteria for assessing lawyers who are usually assigned to represent people charged for capital offences, statistics have shown that many of the wrongful conviction are as a result of the incompetence of counsel assigned to represent these categories of defendants in Court. In most cases, these lawyers due to their incompetence, mess up the case of the defendant thereby causing an innocent person to be Convicted for a crime he might not have committed.
  7. Government should equally endeavor to create jobs for the teaming unemployed youths roaming the streets, and also provide loans to those who intend to, but do not have the means to start up a business. Most of these crimes are caused by rising rate of unemployment, poverty and the rising cost of living. It is said that “an idle mind is the devil’s workshop” hence a society like nigeria where unemployment is at its peak, Crime is sure to thrive as people who are unemployed would explore any means both legal and illegal to survive.
  8. Corruption amongst government officials is also another factor, a situation where the people in government, rather than deploy government resources to work for the masses, would rather loot these resources and shift them abroad where they’ll be used in acquiring properties for their generations unborn, hence, the masses who are deprived the good things of life will definitely try to make ends meet through whichever way.
  9. The National Orientation Agency must equally rise to its duties of impacting positive and patriotic orientation in the youths of this country, through regular broadcasts both on the radio, newspapers, community engagement and television broadcasts, enlightening them on the dangers of engaging in criminality, as this would deter some prospective criminals to drop their criminal intentions.
  10. The provision of section 12(2)(c) of the Correctional service Act is plausible, and a welcome innovation, pursuant to this therefore, those who have been on Death row for 10 years should as a matter of urgency, have their death sentence commuted to life imprisonment. Also, criminal trials and Appeals should be quick and expeditious, this age-long tradition of Criminal trials lingering till 10, 15, 20 years is contrary to section 36 (1) of the 1999 Constitution which provides for trial “With a reasonable time”, this long length of time is sure not reasonable. And as goes the age-long aphorism “justice delayed is justice denied” delays in criminal trial is a denial of justice, most especially in a situation where a person is convicted after 15 year long trial process of an offence which carried maybe 7 years imprisonment, having been held in detention for 15 years while the trial and Appeal were ongoing.

                          Conclusion.

From all that has been stated above, it is clear that death penalty is not illegal since the Constitution of the Federal republic of Nigeria (1999 as amended) which guaranteed right to life for every citizen of Nigeria Under section 33, went further to qualify that right by defining situations under which that right to life may justifiably be derogated from. Hence, the legality debate has been settled by that same section 33 of the Constitution, hence the combined effect of sections 33, 233(2)(d), 241(1)(e) is that death penalty is constitutional in Nigeria. Such debate can only gain momentum in Countries whose Constitution makes the right to life absolute, and did not make any provision for situations in which its derogation may be justified. However, its reasonableness and suitableness in light of the 21st century trend which tends towards rehabilitative and Reformative justice, has been a topical issue. This is in view of the mass Exodus away from retributive Justice, to a system that better safeguard the dignity of human person even in capital offences. It follows therefore that retributive system has lost Appeal and relevance, and so therefore long overdue to be flung out of the windows of our criminal justice system into the dungeon of history.

  1. Danielle Paquette, (2020) “She was found guilty of killing her husband. Her punishment: hanging”, https://www.washingtonpost.com/world/she-was-found-guilty-of-killing-her-husband-her-punishment-hanging/2020/01/29/9a61db18-4296-11ea-abff-5ab1ba98b405_story.html> accessed on 20 Aug 2020.
  2. Idris Ibrahim, “Nigerian singer sentenced to death for blasphemy in Kano state”, (2020) at https://www.bbc.com/news/world-africa-53726256.> Accessed on Aug 10 2020
  3. WAKI KORSAR: “Sharia court sentence 70 year old Mati Audu to death for rape in Kano”, https://www.bbc.com/pidgin/tori-53756874, accessed on Aug 10 2020.
  4. Ibid.
  5. Ibid. (n 2).
  6. Ibid. (n 1).
  7. Black’s Law Dictionary, BRYAN. A GARNER, (10. Ed), page485.
  8. Ibid. Page 252.
  9. Benjamin O. Igwenyi, “ABOLITION OF DEATH PENALTY IN NIGERIA: JURISTIC ISSUES AND SOLUTIONS”, Global Journal of Politics and Law Research Vol.7, No.7, pp.53-65, November 2019 Published by ECRTD-UK ISSN: ISSN 2053-6321(Print), ISSN: ISSN 2053-6593(Online), page55.
  10. Genesis 9:6.
  11. Exodus 21: 12, King James Version.
  12. Exodus 21:14, Deuteronomy 19:11-12.
  13. Ibid. 21:15.
  14. Ibid. 21:16-17.
  15. Ibid. 21:23-29, Deuteronomy 19:21.
  16. See for example, Koran 5:36.
  17. Criminal Code Act 1916.
  18. Benjamin O. Igwenyi, “ABOLITION OF DEATH PENALTY IN NIGERIA: JURISTIC ISSUES AND SOLUTIONS”. Supra.
  19. Nzeribe Ejimnkeonye Abangwu, Ph.D, & Dr Adekumbi Imoseni, “Death Penalty in Nigeria: To Be or Not To Be: The Controversy Continues” at IJISET – International Journal of Innovative Science, Engineering & Technology, Vol. 6 Issue 10, October 2019 ISSN (Online) 2348 – 7968 | Impact Factor (2019) – 6.248 www.ijiset.com page258.
  20. Cap. C38, LFN 2004 (applicable in the Southern States).
  21. (n 20) s.37-38.
  22. s.49.
  23. s.319(1)
  24. Penal Code Act (Applicable to Northern States).
  25. s.221 (Culpable homicide Punishable with death), s.411 (Treasonable offences Punishable with death); see also, Benjamin. O Igwenyi (Supra).
  26. CAP R11, LFN 2004.
  27. ibid. s.1(1-2).
  28. CAP, A20 LFN 2004.
  29. ibid. s.45-47.
  30. ibid. s.52.
  31. ibid. s.63.
  32. About 12 Northern States have adopted this law, between 2000-2013.
  33. Nzeribe Ejimnkeonye Abangwu Supra, p.265.
  34. ibid. p.259.
  35. Ayomide O. Tayo, “the first public execution in Nigeria”, at <https://www.pulse.ng/gist/bar-beach-show-the-first-public-execution-in-nigeria/r6g1k0j> accessed on Sep 07 2020.
  36. https://en.m.wikipedia.org/wiki/Ishola_Oyenusi> accessed on Sep 07 2020; http://www.executedtoday.com/2014/09/08/1971-ishola-oyenusi-smiling-to-his-death/> accessed on Sep 07 2020.
  37. https://en.m.wikipedia.org/wiki/Lawrence_Anini> accessed on Sep 07 2020.
  38. https://apnews.com/cccad9c8eafa8bd131ff6d73645883ff> accessed on Sep 07 2020
  39. Tunde Obadina, “43 Convicted Armed Robbers Are Put to Death in Nigeria : Africa: A crowd of 1,000 looks on as army firing squad executes convicts to crack down on recent upsurge of violent crime”, < https://www.latimes.com/archives/la-xpm-1995-07-23-mn-27074-story.html> accessed on Sep 07 2020.
  40. https://en.m.wikipedia.org/wiki/Ken_Saro-Wiwa> accessed on Sep 07 2020.
  41. https://www.reuters.com/article/us-nigeria-execution/nigeria-hangs-four-prisoners-in-first-executions-since-2006-idUSBRE95O0RA20130625

>accessed on Sep 08 2020.

  1. https://www.thisdaylive.com/index.php/2019/09/17/3000-inmates-on-death-row/>Accessed on Sep 08 2020.
  2. s.12 (2)(c), Nigeria Correctional service Act 2019.
  3. https://punchng.com/death-sentences-nigeria-ranked-second-after-china-amnesty-international/> accessed on Sep 08 2020.
  4. s.367, Criminal Procedure Act CAP C41 LFN 2004.
  5. s.273, Crime Procedure Code (Northern States) CAP C42 LFN 2004.
  6. s.402, Administration of Criminal Justice Act 2015.
  7. s.1(3), CAP R11 LFN 2004.
  8. s.368(2) CPA; s. 271 & 300(3) CPC; s.404 ACJA 2015.
  9. ibid, (n 19) p.260.
  10. s.368 (3) CPA; s.270 CPC.
  11. (1988) 4 NWLR (pt. 87) 130 (1988) 9 SC.1
  12. s.405 ACJA 2015.
  13. ibid, (n 19) p.259. see s.29 Criminal Code (Southern States).
  14. Arum .v. state (1979) 11 S.C. 91; Yusufu v. state (1988) 4 NWLR (pt 86) 96; Ogegele .v. state (1988( NWLR (pt71)414.
  15. ibid, p.261.
  16. ibid, p.264.
  17. s.33 (1), Constitution of the Federal Republic of Nigeria 1999(As amended), (underlining mine).
  18. Onuoha Kalu V. State (1998), 13 NWLR (583) 531.
  19. http://www.nigeriabar.com/2017/06/is-execution-unconstitutional#.Xz2JeOwo-yU> accessed on Sep 08 2020.
  20. ibid.
  21. s.33, CFRN 1999 (as amended).
  22. ibid, p.262.
  23. Nemi V. Attorney-General Of Lagos State (1996) 6 NWLR 42 at 55.
  24. (1994) 9 NWLR (pt. 366) 1 at 47, see also, Dominic VS. AIG (2008) All FWLR (pt. 420) 775.
  25. (1986) 5 NWLR (part 45) 828.
  26. Onuoha Kalu v State (Supra).
  27. ibid (n 15).
  28. https://www.barristerNG.com/blasphemy-any-muslim-lawyer-who-defends-convicted-singer-renounced-his-faith-cleric/

70a. Death Penalty in Nigeria: To Be or Not To Be: The Controversy Continues (Supra), p.263.

70b. (1995) 1 NWLR (pt. 1) 125.

  1. https://medium.com/@Susapien/why-capital-punishment-should-be-banned-on-earth-6cac68f71fed> accessed on Sep 10 2020
  2. ibid, p.264-265.

73.http://www.nigerianlawguru.com/articles/criminal%20law%20and%20procedure/REVISITING%20THE%20DEATH%20PENALTY%20QUESTION.htm> accessed on Sep 10 2020.

  1. ibid.
  2. s.235 CFRN 1999.
  3. https://stories.avvo.com/crime/murder/8-people-who-were-executed-and-later-found-innocent.html> accessed on Sep 10 2020.
  4. https://deathpenaltyinfo.org/policy-issues/innocence/executed-but-possibly-innocent> accessed on Sep 10 2020
  5. ibid.
  6. ibid, (n 76).
  7. ibid.
  8. ibid, see more on wrongful execution in: “The American death penalty: A tragedy of errors”.
  9. ibid, p.265.
  10. ibid, p.265-266.
  11. https://medium.com/@Susapien/why-capital-punishment-should-be-banned-on-earth-6cac68f71fed> accessed on Sep 10 2020.
  12. https://www.hrw.org/news/2010/06/25/nigeria-halt-plan-resume-executions> accessed on Sep 10 2020.
  13. https://en.m.wikipedia.org/wiki/Capital_punishment_in_Nigeria> accessed on Sep 10 2020.

About the writer: Ekenobi ThankGod Chinonso is a 200 level student, in the Faculty of Law, Ahmadu Bello University Zaria. Phone number: 07067942565. Email: [email protected].