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Rethinking Nigeria’s Policy On Death Penalty, By Chino Edmund Obiagwu, SAN

Such official conspiracy against the weak and vulnerable by the political society underpins the hypocrisy of the death penalty debate in this country.

Ogbeni Raul Aregbesola was Governor of Osun State for 8 years. He didn’t sign a single death warrant despite over 100 death row prisoners from Osun State. But last week, as a Minister of Interior, he called on Governors to sign death warrants as a way of decongesting prisons. Such official insincerity, not uncommon among the political society, underpins the fallacy of the death penalty debate in this country. Clearly, on the issue of death penalty, Nigeria’s position is more of self-deception than sound policy. 


There is no doubt that the death penalty is in our statute books because the poor and vulnerable are the usual victims. Massive corruption and financial frauds by the political elites and private sector businessmen, most of them resulting in the silent death of millions of Nigerians, are exempted from death penalty. Funding terrorism is also exempted from the death penalty under the Prevention of Terrorism Act. The day these crimes are capitalized, our political leaders will abolish the death penalty. Such official conspiracy against the weak and vulnerable by the political society underpins the hypocrisy of the death penalty debate in this country.


Many Nigerians agree that executing offenders is a tall order; a very inhuman and beastly way of enforcing criminal law. A recent survey by LEDAP shows 51% of Nigerians under the age of 35 years did not support the use of death sentence, and nearly 75% of victims of violent crimes that did not result in homicide would not want the offenders killed. But most of the 3,100 prisoners on death row are sentenced for non-fatal armed robberies, not murder. On that score, Nigeria maintains the cruelest and harshest death penalty regime in the world, perhaps, next only after China. 


Many non-fatal violent crimes, not resulting in death of anyone, are punished with death. From armed robbery to treason, kidnapping, adultery and even being a homosexual, are all punishable by execution. No other democracy in the world has such harsh penal laws. No democracy in the world treats her poor and vulnerable citizens who are in conflict with the law with such coldness and disregard for the sanctity of human life. 


Not many officials, especially State Governors, and officials of Correctional Centers, are emotionally and ethically convinced that all those sentenced to death deserve to die. Execution of death sentence is irreversible. Most times, the trauma of a Governor wrongfully signing death warrants would last a life time, even unto his generations, if it’s eventually found that the executed prisoner was innocent of the crimes for which he or she was convicted. So, it’s emotional difficult to put the burden on Governors. Moreover, death sentence served no useful purpose in crime prevention. In fact, it heightens violent crime as offenders become more brutal and do everything to eliminate possible incriminating evidence. So, we will continue to see lethargy on the part of Governors signing death warrants. 


In 2004, the Nigerian government set up a National Study Group on the abolition of the death penalty, headed by Prof Yemisi Bamgbose, while the current Attorney-General of Ekiti State, Wale Fapohunda, was the secretary. The group traversed the entire country and arrived at apt conclusions in their report, including recommendation to the Federal Government to introduce a national moratorium on sentencing and execution of death penalty, while the state governments review their death penalty regimes. The main reason for the recommendation was that, according to the report, ‘a system that cannot give justice should not take life’. 


I have practiced criminal law in this country for almost three decades, and I know firsthand how much Nigerian criminal justice system, and indeed any justice system, in sizable instances would not give justice. I have litigated a case in which a 19-year-old was convicted and sentenced to death because his friends they were playing football within Ajegunle, fought with a man who was crossing the field they were playing on, and one of the boys, not my client, stabbed the man during the fight, and he died days later. (Williams Owodo v The State). Mr. Owodo did not even participate in the fight, and that was why he surrendered to the police when police was searching the neighbourhood for the culprits, according to abundant evidence. Yet he was convicted and sentenced to death. I have also litigated the cases of Monday Ilade Prosper v The State, a 21-year-old, who was a driver of his employer, and was owed three-month salary. On the fateful day, his employer went to the bank to collect money and as he drove him to his office, he stopped the car, pretended something spoilt on the engine, which attracted his employer to also come of the car to check. Mr. Monday took sand from the ground and poured on the face of his employers, and took the bag of money from the car and ran away. He was later arrested and convicted for armed robbery and sentenced to death. The Edo State High Court that convicted him said that ‘sand’ constitutes ‘obnoxious substance’ and therefore a weapon under the Robbery and Firearm Tribunals Act, an infamous interpretation of the law, which the Court of Appeal, quicky set aside and acquitted Mr. Monday. But he had spent 13 years in prison, 8 of which was on death row. I have also defended two teenage boys who were, according to police, drinking and smoking with friends in Isolo area of Lagos in a drinking palour, boasting that they were bad boys. The beer palour vendor called in the police, who arrested five of them, and the duo eventually ‘confessed’ to having caried out all the series of robberies that were going on in the area at the time. They were charged with armed robbery. There was no witness who said he or she was robbed by these people. Only the police witness who interrogated and wrote their confessional statements. They were both convicted and sentenced to death. We entered the case on appeal and the court of appeal justices readily set aside the sentence. (Sopurichi Obed v State; Edet Otobong v State).  


A 2007 study by LEDAP of death penalty appeal judgements between 2001 and 2006 showed that one third of death sentences are overturned on appeal, showing a very high rate of wrongful conviction. This statistic is enough to conclude the ‘a system that cannot give justice cannot take life’


Nigerian political leaders and entire Nigerian elites must tell ourselves the truth and remove death sentence from our statute books. 


Another example of government insincerity about the death penalty is on the politics of death penalty moratorium. In 2009, at the session of the United Nations Human Rights Council’s Universal Periodic Review of Nigeria, the then Nigeria’s Minister of Foreign Affairs, Ojo Maduekwe, announced to the UN that Nigeria had in place moratorium on the use of the death penalty. The UPR report commented on this and urged that a policy paper or law be put in place to operationalize the moratorium. This was not done. In fact, there is no single government documents evidencing that there is moratorium on the use of death penalty. The National Study Group that recommended moratorium in its report was ignored. Today, the federal government claims that it is the state government that would abolish the death penalty, and the state governments are claiming it is a matter for federal policy since death sentence is sanctioned in the Constitution (Onuoha Kalu v The State).


Nigerian government has not lived up to any of its promises to the world on the issue of death penalty. It has continued to execute death row prisoners and has never had a moratorium. There was no document or policy paper declaring moratorium on executions or on death sentencing. The federal government has not made any official commitment to discourage States from using the death penalty. On the contrary, in May 2012, State Governors met in Abuja and announced they would commence executions as a way to decongest prisons, an illogical proposition because Nigeria’s prisons are over-populated by only awaiting trial prisoners. Upon that threat to kill them, all death row prisoners in 11 maximum security prisons filed two suits at the Federal High Court against all State governors to stop any execution. The cases are still pending at the Court of Appeal. (Godwin Pius v Governor of Abia State & Others; Nnenna Obi v Comptroller of Prisons & 37 Others). Despite the on-going suit, prisoners continued to be executed, as was the case in Edo State in 2016. At the same time, the federal government has discarded the report of the Death Penalty Study Group, and completely ignored its commitment to the UN Human Rights Council. Not only that it has executed prisoners since then, in 2013 and 2016, it has expanded the range of non-homicidal crimes punishable by death sentence. It has also continued to apply death penalty as mandatory punishment, despite the fact that all over modern democracies, the mandatory use of death sentence has been abolished because it constitutes a legislative usurpation of the judicial functions of sentencing. Nearly all courts and tribunals in which the issue of use of mandatory death penalty had been raised have held that to sentence a person to death or to any pre-determined punishment irrespective of his or her individual circumstances, constitute inhuman and degrading treatment. Thus, in most African democracies, mandatory death penalty has been abolished by either legislation or judicial decisions: Kenya, Uganda, Botswana, etc. In South Africa, the courts declared the use of the death penalty unconstitutional because it violated the right to life and the right to humane treatment. (Makwanyane v State). 


Nigeria’s legislature has ignored calls by civil society organisations to abolish the use of death sentence or to restrict it to only crimes resulting in death of the victims. In many instances, State governments introduced death penalty for kidnapping (Edo, Akwa Ibom, Anambra, Imo, Abia, and Delta) and for adultery, apostacy and sodomy (12 Sharia states). 


The fact that there is increase in these crimes despite these harsh laws, shows that the severity of punishment is not deterrence to crime. What discourages potential criminals from committing crimes is the high possibility of being apprehended while committing the offence. 


Nigerian governments at state and federal levels should focus on improving police capacity to arrest and prosecute criminals, rather than increasing the possibilities of injustice through the wide-range use of the death penalty. In death penalty practices, there is always a high risk that an innocent person could be wrongly convicted and executed, a dangerous prospect in any modern society. 


Life imprisonment is a humane and civil alternative to death sentence. Life sentence forecloses any possibility of killing an innocent soul. Nigeria should embrace change, and walk its talk on death penalty moratorium.


Now, the way forward is for the National Assembly to pass a Death Penalty Moratorium Bill presented to it by civil society organisations since 2017, which will put on hold judicial sentencing to death and executions for 5 to 10 years, within which period each state house of assembly takes time to consider whether or not to review its criminal code or penal code to replace provisions for death sentence with life or long-term imprisonment. This is because most offences that are punishable by death sentence, except treason, are state offences. These are murder under the criminal code applicable in southern states or homicide punishable by death under the penal code applicable in northern states, armed robbery, kidnapping in some southern states, adultery and apostasy in some northern Sharia states, and treasonable felony. 


Chino Edmund Obiagwu, SAN is lead counsel at LEDAP – Legal Defence & Assistance Project