Death sentencing vs refusal to sign warrant
By Babatunde Ayedoju
Death sentence, also known as capital punishment, is an age-old practice of killing somebody who has been found guilty of some offenses deemed very grievous and unpardonable by the society. It dates back to very ancient times and entailed stoning, beheading, burying people alive, and even crucifixion.
Offenses that attracted death sentences varied with society. In the past, Nigeria’s customary laws recommended capital punishment for offenses such as murder, witchcraft, adultery, and profane the gods. When colonial masters came and abolished Nigeria’s customary criminal and penal codes, capital crimes were modified to include murder, treachery, treason, and participating in a trial that resulted in the death of an innocent person.
During Nigeria’s first bout with military rule, that is from 1966 to 1979, certain offenses were added to the list of capital offenses, such as armed robbery, setting fire to public buildings, ships, or aircraft, drug trafficking, sabotaging the production and distribution of petroleum products, importing and exporting mineral oil without authority and counterfeiting bank notes or coins.
As it is now, Nigeria’s Federal law prescribes the death penalty only for treason, conspiracy to commit treason, homicide, armed robbery, and participating in the unlawful trial by ordeal which leads to death. Meanwhile, states like Abia, Imo, and Akwa-Ibom have added kidnapping to their lists of capital offenses, while in northern Nigeria where Shari’a is applied, adultery, sodomy, lesbianism, and rape are crimes that may attract a death sentence.
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.
However, though death sentence is permissible by various laws that are applied all over Nigeria, the practice has been a little bit controversial. While available records show that no inmate on death row was executed from 1999-2007, Amnesty International reports that there were seven executions in Nigeria between 2007 and 2017, the last one occurring in 2016.
The implication is that since 2016, no convict on death row has been executed in Nigeria. Meanwhile, judges have not ceased to pass death sentences on convicts. As a result, the prison population keeps swelling, as the death row inmates join the ones who are awaiting trial and the other ones who have been sentenced and are serving their jail terms.
It must be noted that, as pointed out by the Death Penalty Project, Nigeria is among 54 countries that have retained capital punishment in their criminal justice system after about 110 countries have abolished it for all crimes.
The Avocat Sans Frontiere France (ASFF), otherwise known as Lawyers Without Borders, 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.”
Speaking at the inauguration of the Osun State Command headquarters of the Nigeria Correctional Service, Osogbo, in 2021, Engineer Rauf Aregbesola who was Minister for Interior at that time corroborated ASFF’s revelation when he said that the population of Nigeria’s death row inmates at that time stood at 3,008, representing 4.3 percent of the 68,747 total prison population.
Aregbesola who blamed this congestion of prison facilities nationwide on governors’ refusal to sign death warrants said, “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 behavior. They can also commute others’ sentences to life or a specific term in jail.”
Also, Vice-President Yemi Osinbajo, together with the Attorney-General of the Federation and Minister of Justice at that time, Mr. Abubakar Malami, had on various occasions called for the signing of death warrants of condemned inmates.
Still on the population of death row inmates, the Controller-General of the Nigerian Correctional Service (NCoS), CGC Haliru Nababa, at a media parley on December 15, 2022, disclosed that as of December 12 of the same year, there were 3,166 inmates on death row, with 62 of them or 1.9 percent being women. He also gave the total prison population as 74,824.
However, the continuous practice of passing the death sentence makes most of these figures reliable. From the perspective of governors who refuse to sign death warrants, former Governor of Kano State, Abdullahi Umar Ganduje had said that governors were careful with signing death warrants, due to the possibility of finding out later that the executed convict was innocent.
Citing a case that happened in Edo State where it was later discovered that the affected person was erroneously condemned and executed, he said, “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.”
Adelanke Akinrata, a legal practitioner, explained that the death penalty comes as a result of a pronouncement from a competent court of jurisdiction as a result of trials conducted on a defendant to determine his culpability in a crime. According to him, such a crime can be murder or armed robbery, among others.
Akinrata, while pointing out that the essence of punishment is to deter someone from committing a similar offense again, added that the justifications for punishment include retribution, deterrence, rehabilitation, incapacitation, and rehabilitation. The seasoned legal practitioner noted that none of the justifications for the punishment he mentioned could be achieved in someone on whom the death sentence had been carried out because such a person would not even feel any pain.
While stating that there are better ways to punish an offender, such as life imprisonment, he cited the case of Nasiru Bello versus the Attorney-General of Oyo State in which an Oyo State High Court sentenced Nasir Bello to death for armed robbery. Nasir challenged the sentence at the Appeal Court. After the state governor had signed Nasir’s death warrant and he had been executed, the Appeal Court found that the death sentence was wrongly passed.
He equally cited the admonition of Justice Eso of the Supreme Court in Nwosu versus the State (1986) that said, “A judgment sending a man to the gallows must be seen to be the product of logical thinking, based upon evidence, which the facts leading to the conviction are clearly found and legal deduction there from carefully made. It cannot be allowed to stand if found upon scraggy reasoning or perfunctory performance. It is so in all cases and more so in criminal cases; particularly in capital offenses.”
He also cited Jeremy Bentham in A Treatise on Judicial Evidence, saying, “At first, it was said to be better to save several guilty men, than to condemn a single innocent man; others, to make the maxim more striking, fixed on the number ten, a third made this third a hundred, and a fourth made it a thousand. All these candidates for the price of humanity have outstripped by I know not how many writers, who hold, that, in no case ought an accused to be condemned unless the evidence amounts to mathematical or absolute certainty.”
Similarly, Dr Kunle Akinola from the Department of Political Science, Adekunle Ajasin University, Akungba-Akoko said that the death sentence had been abolished in many parts of the world because of the belief that one should not take any life that one cannot create. He said that in such crimes, offenders are only imprisoned, not executed.
While noting that death sentences are more common in authoritarian regimes where there is no regard for human rights, Akinola said that some cases of murder are accidental and the death sentence may not remedy the situation.
Talking about why governors no longer want to sign the death sentence, Akinola said that aside from human rights concerns, religious beliefs may also be the reason why governors no longer want to approve the execution of any offender.
He, however, said that since the law requires governors to sign the death warrants, they should fulfill their responsibility in that regard.
On the other hand, Dr Harrison Idowu, also from the Department of Political Science, Adekunle Ajasin University, Akungba-Akoko, opined that the Law is very clear on the issue of death sentence, stating that there are offenses that warrant a death sentence, considering the gravity. He, explained that there is nothing wrong with the death sentence being passed on an offender, provided that the weight of the offense that has been committed is equal to the weight of the punishment being given.
On the issue of governors not signing death warrants, Idowu said that the governors are in the best position to explain why they no longer want to sign death warrants but added that it may be for political reasons.
The political scientist added that it may be very difficult to compel governors to sign death warrants unless the constitution is amended because the same constitution that empowers them to sign death warrants also empowers them to pardon offenders.
“The constitution empowers governors to pardon all offenses, including the ones that attract a death sentence. The only thing that can be done is probably that the constitution be amended to limit offenses for which governors can grant a pardon,” he said.