The justice ecosystem has, since the moratorium on death penalty, been weighing the benefits or otherwise of reintroducing the capital punishment. YEJIDE GBENGA-OGUNDARE considers the renewed debate ignited by the consideration in favour of it, by Ogun State Government.
Last week, the Ogun State Government through the State Attorney General and Commissioner for Justice, Oluwasina Ogungbade (SAN), announced that it is considering signing the death warrants of condemned criminals sentenced by competent courts to serve as a deterrent to those who may want to commit heinous crimes in the state, after a scheduled visit to inmates and facilities at the Ibara Correctional Centre in the state capital.
He explained that this development came about as a result of the increase in criminal activities like ritual killings, kidnapping, cultism and other heinous crimes in recent times in the state.
The AG, who observed that despite the proactive measures put in place by security agencies in tackling crimes, there appears to be an upsurge especially in ritual killings, added that the state government had identified the false perception that there would be no repercussions when some of these crimes are committed as the root cause and it is ready to take the bull by the horns by implementing the law through signing the death warrants.
“I can tell you that we are looking seriously at a means of sending a message that Ogun State is not a place where you can come and commit such serious crimes and get away with it. The law as of today, for example, states that a murder case attracts the death penalty and some other offences. But if you look at it nationally, for a long time, there has been reluctance on the part of governments across the states, particularly since the advent of democratic rule, to sign death warrants. But I assure you that at this time, we are looking very seriously at following the law to its letter.
“It is part of the duty of the governor to sign death warrants, and I am certain that when he {Governor Dapo Abiodun} took that oath of office, he took it knowing full well the responsibilities that come with it. He is a governor who upholds the rule of law, so I can assure you that in deserving cases, he will not shy away from that constitutional duty. Though I may not give a timeline, I can only say that in deserving cases, which we are looking at, it will happen,” he said, while assuring that government would not be reckless about the move, but will rather be highly responsive and responsible.
The debate
This development has once again stoked the debate on whether Nigeria, should like other countries, abolish the capital punishment or retain it and while some believe that the death penalty is against the ethics of humanity and religious injunctions, others believe that the abolition of death penalty will spike the crime rate. Its retention is mostly supported by victims of crimes.
This debate has at different periods cropped up in the Nigerian society. In June 2013, Goodluck Jonathan as Nigeria’s president, had while speaking at the Fathers’ Day Sunday service organised by the Aso Villa Chapel, urged state governors to sign death warrants of criminals condemned to death while reminding them that the job they were elected to do had both pleasant and ugly parts.
During his tenure as the Minister of Interior, Rauf Aregbesola had during the inauguration of the Osun State Command headquarters of the Nigeria Correctional Service in Osogbo, accused state governors of delaying the wheel of justice and contributing to congestion in correctional centres by refusing to sign pending death warrants, stating that as of then, death row inmate population stood at 3,008 out of the total 68,747 prison population.
He urged governors to rise up to the dictates of their office, which empower them to approve execution of condemned criminals in cases where appeals have been exhausted and the convicts are not mounting any challenge to their conviction, encouraging states to do the needful and bring closure to such cases.
During the Muhammadu Buhari administration, then-Vice President Yemi Osinbajo and Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami SAN, had called for the signing of death warrants of condemned inmates too.
Kano’s lead
According to records, Governor Ibrahim Shekarau of Kano State was the first governor to have signed death warrants of seven condemned criminals in 2006 and the last time a death warrant was signed in Nigeria was in 2012 when the then Edo State governor, Comrade Adams Oshiomhole, signed the death warrant for two condemned prisoners, who were consequently executed by hanging.
But the human right community has consistently disavowed the death penalty implementation on the basis of the provisions of Moratorium on Death Penalty, pursuant to the recommendations of the National Study Group on Death Penalty, through the Federal Ministry of Justice. The counter to the pro-abolishment campaign is that to keep prisoners on death row in indefinite incarceration amid the whims and caprices or the procrastination of state governors, is a monumental injustice.
Legal provisions
While there are legal provisions backing the death penalty, governors remain reluctant to sign death warrants mostly as a result of pervading cultural, moral, religious and philosophical convictions regarding the sanctity and inviolability of human life based on religious teachings as well as the fear of not getting on the wrong side of people as politicians who still have ambitions.
On December 16, 2020, the United Nations General Assembly passed a resolution placing moratorium on death penalty with 123 votes in favour and 38 votes against while 24 countries abstained from voting and eight were absent.
Also, Section 33(1) of the Nigerian Constitution provides that “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.”
Issues in death penalty
According to Udo Jude Ilo, the Senior Director for Advocacy at the Centre for Civilians in Conflict (CIVIC) in a write-up titled ‘Revisiting The Death Penalty Question’ “there are five issues that arise in the application of death penalty; the institutions that prosecute and convict the criminal (criminal justice sector); the death row condition; the mind of the convict; the mode of carrying out the sentence; the state of the nation that carries out the death sentence and the validity of the death sentence”.
Laying out his argument, he said “the trial process is another defective aspect of our criminal justice system. What counts most time is not the innocence of the victim but the soundness of the defense team. A bad lawyer can send an innocent man to the gallows. “The unavailability of evidence, absence of witnesses and even the disposition of the judge are the variables that determine who dies or lives. Such a system is not good enough to be trusted with such a sensitive duty of determining who goes to the gallows. History has indicted the justice system not just in Nigeria but also the world over for taking the lives of the innocent because of error in judgment. Bad enough when such mistakes are made they are irreversible. No amount of damages awarded can bring back a life.
“The death row condition as practiced in Nigeria is an indictment on Nigeria and really makes a mockery of the argument in favour of death penalty. The criminal is a microcosm of Nigeria; an epitome of helplessness seeking ways to survive and unleashing terror on a society that has denied him so much. Killing him cannot solve the problem but giving him ‘life’ can make all the difference. He is a brother in need and a product of our valueless system.”
He further spoke on the mode of carrying out death penalty in Nigeria, noting that it is carried out either by hanging or by public execution via firing squad which puts the convicts through unquantifiable pain and torture.
He added that “the whole process involves trivializing life. The State embarks on retributive and revengeful punishment, which does not in any way pay back for the harm that has been done by the victim but only makes the State a willing partner in the game of murder. Murder whether by an individual or the state is the same, an outright disregard for life.
“The death of the convict does not add anything to the family of the deceased or the deceased person. Paying back life for life involves that the State degenerates to the level of the capital offender in other to inflict the capital punishment. The convict is not irredeemable. Facts are on the ground to show that they can be reformed. The content of death penalty application is not foolproof enough to guarantee fairness and neither does it end crimes. It is only a reflection of the vengeful tendencies of victims and the State’s failure to adequately take care of her own,” he submitted.
Judicial pronouncements
In its ruling in the locus classicus of Onuoha Kalu vs. the State and Azeez Okoro vs. the State (1998), the Supreme Court held that death penalty is not unconstitutional in Nigeria. The appellant had appealed a death sentence that was imposed under section 319(1) of the Criminal Code of Lagos State in South-West Nigeria, contending that the penalty contravened Sections 30(1) and 31(1) of the Constitution, which guarantee the rights to life and human dignity.
And while Section 319(1) of the Criminal Code prescribes the death penalty for murder, the appellant had argued that the penalty and its execution violated constitutional guarantees of life and human dignity.
The appeal potentially had watershed significance. Had it succeeded, a litany of Nigerian statutes that prescribe the death penalty for sundry offences would have been annulled. Prior to the appeal, debates had raged about the constitutionality of the penalty in Nigeria. It had become an issue of significant public interest, which the Kalu appeal was intended to resolve. The outcome, however, was hardly what the appellant wanted. Having applied its mind to relevant constitutional provisions and comparative jurisprudence, the Supreme Court concluded that the penalty violated neither the right to life nor human dignity as the Nigerian Constitution allowed the penalty.
And while the decision became a locus classicus, it hardly puts the matter to rest as it was meant to as rights activists continue to agitate that death penalty is inhumane and outdated.?
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