Death penalty in Nigeria: Constitutional but unconventional

Executing persons on the death row is an issue Nigerians don’t take lightly. Whenever this issue is raised, the picture of Late Sani Abacha comes alive. He was reckoned to have ordered the execution of over 100 Nigerians during his reign in power. It was contended then that the trials which led to the convictions were not fair and independent (there is a high possibility that many innocent persons were executed). The height of this was reached when Ken Saro-Wiwa was killed. His unjust execution nailed the death penalty debate. Over the years, while the law regarding death penalty remained intact the attitude of presidents and governors has changed. For various reasons they have been reluctant to sign the death warrants rather they commute the death penalty to life imprisonment. This is a good practise.

Unfortunately, it seems the attitude of some governors is now changing. In 2013, under the administration of Mr Adams Oshiomhole four people were executed. Last year as well, under the administration of Mr Godwin Obaseki, 3 death row inmates were executed. Lately, Mr Adeniji Kazeem, Attorney General of Lagos, caused a stir when he said the state was considering going ahead with the execution of inmates on death row.

Mr Femi Falana (SAN) in a letter to Governor Ambode dated April 19, 2017, informed the Governor that the planned execution of death row inmates which includes the popular Rev. King, General Overseer of Christian Praying Assembly, would violate the judgment delivered by Mufutau Olokooba, justice of the Ikeja High Court, in 2012. The judge held that “while a person who commits murder may be sentenced to death, it is illegal and unconstitutional to execute such death by hanging or firing squad as it will lead to the violation of his fundamental right to freedom from torture guaranteed by the constitution”. In effect the judge declared section 367 of the criminal procedure law of Lagos State and any other law which provided for hanging by the neck unconstitutional.

Despite this judgement, the Administration of Criminal Justice Law (ACJL) 2011 in Section 301, still provides that the “punishment of death is inflicted by hanging the offender by the neck till he be dead” while the Administration of Criminal Justice Act (ACJA) 2015, in Section 402(1) provides that the punishment of death is inflicted by hanging the convict by the neck till he is dead or by lethal injection (a new introduction into our criminal justice system).

I don’t support the execution of death sentences and I agree with Mr Falana that the death sentences should be commuted to life imprisonment. Unlike Femi Falana, however, I think such action by the governor should be an exercise of his discretionary powers and not because of the judgement in Ajulu’s case.

I am surprised why Mr Femi Falana is relying on a High Court judgement to declare execution of death penalties illegal when the Supreme Court has in a plethora of cases affirmed that the death penalty prescribed in the Lagos State Criminal Code is consistent with the constitution of Nigeria.

In Onuoha Kalu Vs the state the Supreme Court Justice Iguh, held as follows:

“There is nothing in the Constitution of the Federal Republic of Nigeria, 1979 that renders the death penalty under Section 319(1) of the Criminal Code of Lagos State unconstitutional. On the contrary, there are sections of the constitution, such as sections 30(1), 213(2) (d) and 220 (1) (e) which in no mistake terms, recognise the death penalty”

It is indeed settled law that a person who has been condemned to the death row, is still entitled—pending when the death sentence is executed—to enjoy some other rights which include, the right not to be subject to inhuman and degrading treatment (see Nemi v. Attorney General Lagos State (1996) NWLR (Pt.452) 42) Instances where actions of “torture or inhuman or degrading treatment” can arise for a convict includes where the person is put in a crowed cell or unhygienic cell without toilet facilities, lack of food etc. Wabili V. C.O.P (1985) 6 NCLR 429

This has not been interpreted to mean that the convict would not be executed.

In the same case of Onuoha Kalu Vs the state, Justice Belgore held as follows:

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 enforceable right under the constitution.

Based on the doctrine of hierarchy of court, one can rightly argue that the Supreme Court judgement on this issue is settled law and as such final and binding on both the Supreme Court itself and the lower courts (including the High Court of Lagos State). As Justice Oputa while considering the powers of the Supreme Court (as the final court in the land) said in Adegoke Motors Ltd v. Adesanya

“We are final not because we are infallible; rather we are infallible because we are final”

The issue of executing persons on death row has been settled by the highest court of the land, even if it was reached fallibly. The Judgement of the Ikeja High Court even though it may be infallible, it is, unfortunately, not final. Our legal system is governed by finality and not fallibility or infallibility.

In the light of the above, I humbly disagree with the learned silk and posit that the governor would be acting within the law if he seeks to proceed. Rather than present legal arguments to discourage the governor, we have to appeal to his conscience and international best practises.

Punishments for capital offences attract the death penalty and this type of punishment is mandatory. The judge has no discretion whatsoever and the constitution approves of it totally. The only remedy available to a person on the death row is to appeal to the governor or the president to exercise the prerogative of mercy in their favour. Nothing more nothing less and this cannot be changed by a court, only a constitutional amendment can alter it. Which is why lawyers and NGO’s have been demanding that the National Assembly should reconsider the continued relevance of death penalty in Nigeria.

J.B Nwachukwu

J.B Nwachukwu is a lawyer and a writer, [email protected]