Death penalty: Why Nigeria can no longer sit on the fence — Lawyers

1 month ago

In this piece, Vanguard Law and Human Rights reviews the January 16, 2023 death sentences passed on six murderers in Osun State alongside the circumstances surrounding the growing number of inmates on death row in Nigeria and concludes that it is high time the government stopped sitting on the fence regarding the retention or abolition of death penalty in its statute books.

Background

On January 16, 2023, an Osun State High Court sitting in Osogbo sentenced six men to death by hanging in two separate cases after convicting them of armed robbery and murder offences.

The convicts are Hammed Rafiu, Rasidi Waidi, Kayode Sunday, Owolabi Bashiru, Mutiu Azeez and Afolabi Mayowa.

The trial judge, Justice Jide Falola, in the first case, pronounced death sentence on Hammed Rafiu (37); Rasidi Waidi (39); Kayode Sunday (29); and Owolabi Bashiru (54) for robbing and killing a Lagos-based businessman and ex-staff of FCMB, Mr Victor Akinbile, said to be a relative of the immediate past Osun State Deputy Governor, Mr. Benedict Alabi.

The quartet was arraigned by the state government before the court on October 23, 2019 while full trial spanned two years and two months with judgment delivered in the case on January 16, 2023.

The fact of the case, according to Osun State prosecution counsel, Dele Akintayo, was that Victor Akinbile had visited Osun on November 26, 2018, to attend the swearing-in ceremony of the former Governor Adeboyega Oyetola, and went to Ikirun to pass the night in his uncle’s house when he was attacked by the four men.

The prosecution said one of the defendants, Owolabi, a security guard working in a house opposite where the victim wanted to pass the night, informed three others about his arrival.

He said the four men, armed with dangerous weapons, forcefully gained entrance into the victim’s room and demanded a sum of N10 million but that Akinbile who did not have such amount on him first surrendered all the cash he had and transferred additional N3 million to a bank account belonging to one of the assailants, Ahmed Rafiu.

Not yet done with him, the four men later seized Akinbile and locked him up in the trunk of his Toyota Camry and drove him to Dominion Camp area on old Iragbiji Road along Ikirun/Osogbo Road, where they set his car ablaze and watched him die in the trunk of the burning vehicle.

The prosecution counsel from the Ministry of Justice, Dele Akintayo, said the offences committed by the convicts were contrary to and punishable under sections 1(1) and (2) (a) (b), of the Robbery and Firearms (special provisions) Act, Cap R11, Laws of Federation of Nigeria.

The accused persons were however given the opportunity to give evidence in defence of themselves.

In the course of reviewing their defence, counsel to the accused persons, Messrs Ajibade Oyedeji and Adedayo Adedeji, told the court that there was no evidence to show that they held a meeting before they carried out the act.

In his judgment, Justice Falola said the prosecution counsel had proved his case beyond reasonable doubt and sentenced the four men to death by hanging.

The judge further ordered that the cash recovered from the convicts and the cash in their bank accounts should be handed over to the widow of the deceased.

Apparently angry with the convicts, the judge also ordered that none of the convicts should benefit from any state pardon due to the gravity of the offence they committed.

The trial judge, Justice Falola, in a separate case, sentenced, same day, one Mutiu Azeez (a.k.a. Tompolo), 41, and Afolabi Mayowa, 35, to death by hanging also for armed robbery and murder.

Reviewing the facts of the case, the prosecution counsel, Dele Akintayo, had told the court that on July 1, 2018, between 6:00 am and 7:00 am, the accused persons—Mutiu Azeez and Afolabi Mayowa—at Saaji village, hired a commercial motorcyclist, Mayowa Olatokun, to take them to Egbeda.

He further said the motorcyclist who agreed with the accused persons was already conveying the men to the agreed place when midway, they suddenly asked him to stop and dragged him into the bush where he was murdered and his motorcycle taken away.

The counsel who represented the defendants, Adedayo Adedeji, during allocutus, however, urged the court to be lenient with the accused persons.

But Justice Falola found them guilty and sentenced them to death by hanging.

Although, the condemned six still have the right of appeal to the Supreme Court, yet, by the decision, the number of inmates on death row in the country has jumped up by six.

3,166 inmates on death row in Nigeria as at Dec 12, 2022 —Nigerian Prisons

Available statistics as at December 12, 2022 showed that a total of 3,166 inmates are presently on death row in the country with only 62 of the population representing 1.9% being women

The Controller-General of the Nigerian Correctional Service (NCoS), CGC Haliru Nababa who gave the information, had at a media parley in Abuja, on December 15, 2022 said “as of Monday (December 12, 2022), there were 74, 824 inmates in the custodial centres.”

But the Avocat Sans Frontiere France (ASFF), otherwise known as Lawyers Without Borders, had in a study in 2018 disclosed that: “Two thousand, two hundred and eighty-five (2,285) people were on death row at the end of 2017 in Nigeria, which was a significant increase from 1,979 in 2016 and 1,677 in 2015. Nigeria had 2,359 death row inmates in 2017 while in 2021, it grew to 3,008,” the group said.

Presently, it is actually difficult for the NCoS to have real-time official database breakdown of the nation’s inmates on death row with judges across the federation not ceasing in sentencing people to death and so the exact figure as of the time of this report could not be established.

As the number of inmates on death row increases, executions are a rarity

Even though the death sentence is legal in Nigeria, executions are a rarity in the country.

Yet, judges continue to pronounce the death penalty for offences like treason, kidnapping, murder, armed robbery and involvement with militia groups.

Rights group—Amnesty International, had said Nigeria has the highest death-row population in sub-Saharan Africa.

Available records show that between 1999 and 2007 during the regime of President Olusegun Obasanjo, no inmate on death row was executed.

The rights group reported that between 2007 and 2017, there were seven executions in the country with the last one taking place in 2016.

The group said the 621 death sentences the country imposed in 2017 accounted for 71 per cent of all confirmed death sentences ordered in sub-Saharan Africa that year.

Nigerian courts carried out three executions in 2016 and handed out 527 death sentences, three times more than the previous year.

Historical origin of death penalty in Nigeria

Capital punishment “for heinous crimes” has existed all through the history of mankind long before the creation of court systems.

As civilization progressed, different societies incorporated capital punishment into their legal codes.

The Nigerian customary laws traditionally recognised the death penalty as an appropriate way of eliminating offenders who were dangerous to the community.

At the time, offences warranting death penalty included murder, witchcraft, adultery and profaning of the gods.

With the advent of British rule and the consequent abolition of customary criminal and penal codes, capital crimes were reduced to include murder, treachery, treason and participating in a trial resulting in death of the innocent.

The military government in power from 1966 to 1979 added a number of crimes punishable by death.

These additions included armed robbery, setting fire to public buildings, ships or aircraft, dealing in Indian hemp and sabotaging the production and distribution of petroleum products, importing and exporting mineral oil without authority, dealing with cocaine and counterfeiting bank notes or coins.

Today, Nigerian Federal law prescribes the death penalty only for treason, homicide and armed robbery.

Particularly, under Nigerian criminal law, various offences are punishable by death across the Federation including murder, treason, and treachery, conspiracy to commit treason, directing and controlling or presiding at an unlawful trial by ordeal which results in death.

More recently, kidnapping has been added as a capital crime in Abia, Imo and Akwa Ibom states.

Again, the introduction of Sharia-based criminal law in some states in Northern Nigeria has also widened the number of capital offences to include adultery, sodomy, lesbianism and rape.

Also offence of terrorism has been given a status in Nigeria as a capital offence in the new Terrorism (Prevention) Act 2011 (Amendment) Bill, 2012 which was passed by the National Assembly.

Specifically, Section 1(2) of the House’s version states that “a person or body who knowingly in or outside Nigeria directly or indirectly willingly does, attempts or threatens any act of terrorism…commits an offence under this Act and is liable on conviction to a maximum of death sentence.”

It thus appears that as the criminal engages in acts which are also criminalised, the list of capital offences in Nigeria and other places will continue to be elongated rather than shortened.

State govs reluctant to sign death warrants

In Nigeria, state governors are legally backed to sign the death warrants.

But respected human rights lawyer, Femi Falana (SAN) has said that since the return of democratic government in 1999, only few governors have signed death warrants of the execution of death row inmates in the country.

Many death row inmates, including those that have been condemned to death by the Supreme Court like the leader of the Christian Praying Assembly, Reverend (Chukwuemeka Ezeugo) King, continue to languish in confinement for years, waiting to be executed.

The buck stops at the desk of state governors, some of whom dither in signing death warrants over humanitarian, political, religious, emotional and cultural sentiments.

Yet, they lack the will to commute the provision to life imprisonment.

Available records show that since 2016, no governor has been reported to have signed death warrants.

FG wants govs to sign death warrants to decongest prison

Meanwhile, the Minister of Interior, Mr Rauf Aregbesola had in 2021 at the inauguration of the Osun State Command headquarters of the Nigeria Correctional Service in Osogbo, bemoaned the refusal by state governors to sign death warrants in their jurisdictions.

The minister said Nigeria’s death row inmate population which though stood at 3,008 representing 4.3% of the total 68,747 prison population, yet, the figure still contributed to prison congestion in the country and 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, the state should go ahead to do the needful and bring closure to their cases, as well as set some others free on compassionate grounds, especially those who have grown old on account of the long time they have been in custody, those who are terminally ill and those who have been reformed and demonstrated exceptionally good behaviour. They can also commute others’ sentences to life or a specific term in jail,” he had argued.

The former governor is not the first official in the current administration to seek the execution of death row inmates.

Both Vice-President Yemi Osinbajo and the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami had, in the past, called for the signing of death warrants of condemned inmates.

Why govs are wary of signing death warrants—Gov Ganduje

But the governor of Kano State, Abdullahi Umar Ganduje, has said governors were and are still afraid of signing death warrants of convicts because they would not want to order the execution and later find out that the person did not deserve to die.

He recalled an incident involving a former governor of Edo State, Adams Oshiomhole, saying: “At one time he signed the warrant and somebody was executed. Later on, it was discovered that he was not supposed to have been executed. The judgement was faulty.”

He added that following that incident, governors became more careful about death warrants, adding: “From time to time, we sign, but we think that the issue should be looked at constitutionally to find out what measures can be put in place so that people are not killed, only to discover later that they were not supposed to have been killed. And you cannot retrieve the life of any creature.”

Bauchi gov says governors’ll soon be signing warrants

The Governor of Bauchi, Bala Mohammed, on his part, said he would soon start to sign death warrants.

Mohammed spoke in Bauchi while signing the Violence Against Persons Prohibition (VAPP) Bill and a bill for the establishment of the Bauchi State Penal Code, into law.

The Bauchi governor said some governors are refusing to sign on the basis of the possibility of erroneously condemning a person to death.

“We will soon be signing some death sentences because there are many and because of justice which has to be taken to a logical conclusion,” NAN quoted the governor as saying.

“I know some governors are running away from signing the death sentences because they exercise restraints on the basis that there may be some element of error.

“But to me, I will leave it to my lord (the chief judge) who will prosecute. It’s not my fault. If it is brought to my attention, I will do it.

2 on-going cases seeking to stop execution of death row inmates—Obiagwu, SAN

In a related development, the Executive Director of the Legal Defence Assistance Programme, LEDA, Chino Obiagwu, SAN, expressed surprise that some governors said they were willing to sign death warrants notwithstanding two different cases pending in courts in Abuja and Lagos seeking to stop execution of death row inmates.

“The LEDAP suit before a Federal High Court in Abuja was brought by Mrs. Nnenna Obi and Solomon Adekunle, on behalf of all prisoners on death row in Nigeria for the enforcement of their fundamental rights by seeking to stop future implementation of death penalty.

“Available records also show that there are other cases at the ECOWAS Court of Justice challenging the implementation of death penalty in Nigeria,,” he added.

Obiagwu recalled that in 2004, the Nigerian Government set up a National Study Group on the abolition of the death penalty, headed by Prof. Yemisi Bamgbose, SAN, 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 the recommendation to the Federal Government to introduce a national moratorium on sentencing and execution of the 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.’

“As long as convictions are based on confessions which are denied, trials going on for five years or more, where witnesses would have forgotten facts in the case, sometimes we have missing case files, we cannot claim that we have had a fair judgement and a perfect system. And life is sacred while death penalty is too absolute.

“We look at issues like the irrevocability of execution. Once a death warrant has been executed and we have fresh evidence to show that the prisoner was actually innocent, there is no amount of compensation that would ever be sufficient. These are the issues we want the president to avert his mind to.

“Yes, sometimes they argue that they have gone through the trial process, but we can never erase the possibility of human error; it is always there even in advanced countries. There was a case in Colorado in the USA where a man was found to be innocent, 72 years after his execution,” he said.

Death penalty debate divides lawyers

For a very long time, the issue of the death penalty has continually stirred emotions across Nigeria’s social and political divides, because while international law discourages the imposition of the death penalty, Nigeria is one of the countries that still retains the use of the death sentence as capital punishment in its criminal law and penal code, with judges in the High and Sharia courts sentencing convicted persons to death for numerous crimes, including non-lethal crimes.

While 110 countries in the world have abolished the death sentence for all crimes – Sierra Leone being the latest, according to the Death Penalty Project – 54 countries, including Nigeria, retain the provision in their laws.

Presently, while many senior lawyers and human rights institutions are pushing for its abolishment on the account 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 that cries to the high heavens for remedy, others are pleading for its retention.

Indefinite detention of inmates on death row unjustifiable—Falana, SAN

According to the human rights lawyers, Mr Femi Falana (SAN), indefinite detention of inmates on death row in correctional facilities could not be justified under the law.

His words: “Our governors ought to be challenged to address prison congestion caused by their failure to ratify death warrants. It is not enough to withhold their approval. We should be honest enough to admit that the death penalty cannot be implemented. Therefore, it ought to go and be replaced by life imprisonment or other terms of imprisonment.

“The law can be amended to say: ‘If a prisoner on death row exhausts his/her right of appeal and the death penalty is not executed within ten years, the judge has the same powers to commit the death sentence to life imprisonment.”

Indefinite detention of death row inmates amounts to torture—Adegboruwa (SAN)

On his part, Mr Ebun-Olu Adegboruwa (SAN) noted that the governors should exercise their statutory responsibility to sign the warrant for those who have been convicted by the court and have no pending appeal.

He added, “The challenge is that most governors are reluctant to sign. The solution to this is that it would be necessary to consider death row inmates who have been there for a particular time to be committed to life imprisonment. It constitutes torture for one to be expecting to die every day and it lingers on for 10 or fifteen years.

“The Supreme Court has said if one is kept on death row for too long, it constitutes a torture. The government should set a time limit so anyone waiting to be executed should be committed to life imprisonment or a lesser punishment instead of just crowding the prisons in that regard.”

Endless wait for execution cruel — Pedro, SAN

Lawal Pedro, SAN said: “The first point to note is that a death penalty is not unconstitutional in Nigeria. Without sentiment, the call on the governors to sign death warrants for a defendant sentenced to death by a court of law is merely requesting them to perform their duty under the law. However, the governors understandably have been reluctant in performing that duty on grounds of morality and religious belief. But the lengthy stay on death row by condemned inmates, and being under the threat of imminent execution perpetually, is cruel, inhuman, and degrading.

“In my view, the condemned prisoners have no remedy against their death sentence or delay in their execution. It is the Attorneys General of the Federation that should come together to advise the government for the removal of the death penalty from our statute books and convert the same to terms of imprisonment/ life imprisonment. If there is no joint decision to that effect, a state government can abolish the death penalty in its state without recourse to the Federal government.”

Death sentence must be reviewed— Sowemimo, SAN

Seyi Sowemimo, SAN said:” We should either abolish the death penalty or promulgate a law that those sentenced to death should have the sentences carried out without the necessity of it being ratified by a governor. Another option is that if the death warrant is not signed within three months, then it should be deemed that the sentence has been commuted to life.”

Nigeria still has death penalty in its statute books — Uwaifo

Hannibal Uwaifo said: “Unfortunately, Nigeria is still among the countries that have the death penalty in her statute books. The death penalty is reserved for capital offences and is often applied by law courts according to the law.

“It, therefore, becomes unlawful when governors of states, who are to sign the warrants for the execution of the convicts refuse to do their jobs without any compelling reason other than sentiments and procrastination. Most of these convicts have committed heinous crimes, terrorizing the society they once lived in.

“I am not a supporter of the death penalty but since it is in our statute books and the law does not allow for an alternative punishment, then those concerned should do their jobs or quit the office. If the legislature does not want to do away with this punishment, then it should amend the law to read that once the sentence is pronounced, the prisons should arrange to comply with the court judgments.”

From all indications, it does appear that apart from the fact that state governors are wary of signing death warrants owing to their suspicion of the nation’s imperfect justice system, death penalty itself is becoming more unpopular in the world.

However, in view of the fact that some Nigerians are actually engaging in various heinous crimes involving barbaric and unimaginable method of killing innocent people as witnessed in the recently concluded cases involving late Mr Victor Akinbile and late Mayowa Olatokun in Osun state, the government should set necessary engine in motion to review the provisions in the statute book relating to death penalty not only to conform with the present world order but also discourage perpetration of heinous crimes in the country.

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