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1.0 INTRODUCTION
Despite various calls by local and international bodies for the abolition of the death penalty, Nigeria is one of the countries in the world that retains this inhumane system in its criminal law regime. Nigeria is yet to domesticate international law principles on the abolition of the death penalty. The country has also failed to officially impose a moratorium on the death penalty. Section 33(1) of the Nigerian Constitution gives impetus for the continuance of the death penalty in the country. It provides thus –
33(1) 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.
Lucidly, inherent in the afore-cited provision of the Constitution is the Right to life which is fundamental, even under international law. Under the Criminal code which is applicable in southern states in Nigeria, murder, treachery, treason, armed robbery, mutiny and directing and controlling or presiding at an unlawful trial by ordeal leading to the death of a person, are capital offences and thus carry the death penalty. Some states such as Akwa Ibom, Abia, Anambra, Bayelsa, Bauchi, Cross River, Enugu, Imo, Kogi, Rivers, Lagos, Ogun, Ondo and Oyo have made kidnapping a capital offence. In the Northern states in the country where the Penal Code is applicable, offences like adultery, incest, blasphemy, witchcraft, and homosexuality carry the death penalty under the Penal Code.
Additionally, the death penalty is allowed in Nigeria under a plethora of federal and state laws including, the Armed Forces Act, Robbery and Firearms (Special Provisions) Act; the Terrorism (Prevention) Act 2011; the Administration of Criminal Justice Act, 2015 and the Sharia Penal law applicable in 12 northern states. Also, it has received judicial blessings in a plethora of cases such as Onuoha Kalu v State and Akinyemi v State
This article seeks to advocate for an official moratorium on the death penalty in Nigeria.
2.0 DEFINITION OF THE DEATH PENALTY
Death Penalty is also known as “capital punishment”. It is defined as a criminal penalty that involves killing the perpetrator of an offence. It is usually imposed for serious criminal offences.
The death penalty provides the legal backing to take the life of a person despite his right to life. Where it is mandatory, the judges have no discretion and this makes it impossible to hand down lower sentences other than the death penalty irrespective of the circumstances of the case.
2.1 APPLICATION OF THE DEATH PENALTY IN NIGERIA
During the military era (1st January 1984 – 28th May 1999), several convicted armed robbers and coup plotters were executed. The infamous Abacha administration allegedly confirmed the execution of more than 100 persons, following trials and convictions which were usually unfair and lacked independence, among them were the Ogoni Nine activists in 1995 .The trial and hanging of the Ogoni activists, which included the literary guru, Ken Saro-Wiwa, was regarded as flawed and consequently prompted the suspension of Nigeria from the Commonwealth in 1995. However, in January 2000, the former President of Nigeria, Chief Olusegun Obasanjo, granted a reprieve to death row inmates, who had been awaiting execution for over 20 years, by reducing their punishment to life imprisonment.
Furthermore, the former President on November 13, 2003 initiated a parliamentary debate on the use of the death penalty. In furtherance of this process, the then Attorney General of the Federation and Minister of Justice, Chief Kanu Agabi, inaugurated a panel of experts that served as the National Study Group on the Death Penalty with 12 members representing different aspects of Nigerian society. In October 22, 2004, the group, after traversing the country, recommended a national moratorium on the execution of the death penalty while concluding that, a system that could not give justice should not take life. Notwithstanding the federal government’s suspension on executions in 2004, some prisoners were sent to the gallows in 2006 and 2013. The last execution done in Nigeria was on 23 December, 2016, with three death row prisoners put to death in Benin Prison, Edo state.
It appears the country has a bias for the death penalty continuance regime because whilst some of its African counterparts such as Rwanda, Burundi, Togo, Gabon, Benin, Congo, Madagascar, Guinea, Burkina Faso, Chad and Sierra Leone and all the countries in Europe have abolished this form of punishment, Nigeria has refused to do so. Nigeria’s Minister of Interior, Rauf Aregbesola, stated in July 2021 that 3,008 convicted persons were waiting for their date with the executioners in the correctional facilities as a result of state governors’ refusal to sign death warrants. This figure comprises 2,952 males and 56 females.
3.0 ARGUMENTS IN SUPPORT OF THE DEATH PENALTY
One of the arguments in support of the death penalty is criminal incapacitation. The logic behind this argument is that the criminals, who have committed serious crimes, will be eliminated from society. It is said that the death penalty makes society much safer. The argument is said to be self-evident because the murderers, rapists, and other worst criminals will never commit the crimes again.
Another argument in support of the death penalty is the high cost of keeping criminals imprisoned for life. Capital punishment seems to be beneficial for society as more government resources will be left to take care of the poor, old persons, children, the unemployed, to mention a few.
Retribution also serves as one of the rationalisations for the application of the death penalty in Nigeria. This implies that the crime committed should be punished in an equal manner, i.e., the murderer should be sentenced to the death penalty. An example of this was seen in the high-profile murder case between Commissioner of Police v Maryam Sanda & 3 ors (2020), the 1st defendant, Maryam Sanda was handed the death penalty for killing her husband, which the judge said was “Blood for blood”. In his judgement, Justice Yusuf Halilu said the convict “should reap what she has sown”.
Finally, deterrence. Death penalty has been argued to be a useful instrument of deterrence to potential criminals thus reducing crimes to the barest minimum.
4.0 ARGUMENTS IN SUPPORT OF AN OFFICIAL MORATORIUM ON THE
DEATH PENALTY IN NIGERIA
Even though a complete abolition of the death penalty in Nigeria will necessitate a long and cumbersome process of amendment of our extant laws, an official moratorium will be the first step towards its abolition for the following reasons:
a) Capital Punishment is Inhumane, Cruel and Barbaric
In the Administration of Criminal Justice Act, Section 402 (1) & (2) of the Act provide thus:
(1) Punishment of death is inflicted by hanging the convict by the neck till he is
dead or by lethal injection.
(2) Sentence of death shall be pronounced by the court in the following form:
The sentence of the court upon you is that you be hanged by the neck until you are dead or by lethal injection.
This is also the position of the law under the Criminal Procedure Act. Apart from death by hanging, the death penalty punishment can also be executed in Nigeria by shooting (firing squad) and stoning. The modes of execution are cruel, inhumane and barbaric and only depicts man’s inhumanity to man. It is barbarous and uncouth; falling below moral standards and with no human feeling on the part of the person inflicting the barbarity or cruelty. What happened to the rights to freedom from torture and inhumane or degrading treatment guaranteed under Section 34 of the Constitution??
b ) Religious Beliefs
There are strong religious reasons to oppose the death penalty. For example, in the Christian Bible, Cain, the first murderer, was not executed by God but was marked with a special sign and made a wanderer upon the face of the earth. Also, one of the commandments states thus – “Thou shalt not kill”. Also, there is a Bible story of the woman who was caught in the very act of adultery who faced execution by stoning, the reply of Christ to her accusers was “He that is without sin among you, let him cast the first stone”. The Bible abhors the death penalty in the above instances, hence, many christians believe that if it is not abolished, it should be suspended.
c) Irreversibility
Once execution is done, it cannot be undone or remedied. There is no guarantee that justice will never suffer miscarriage. What happens where an innocent person is convicted and executed, will an award of damages or public apology resurrect the dead? In the case of Nafiu Bello v Attorney General of Oyo State, the accused-appellant was executed while his appeal was pending. Though the supreme court condemned the action of the administrators and awarded damages to his family, the prisoner was already dead and could not be brought back to life. Following the words of the great jurist, William Blackstone “it is better that ten guilty persons escape than that one innocent suffer”, hence, since human judgement is infallible it is advisable to abolish or suspend the death penalty to ensure that innocent people are not condemned to die.
Some factors exist that could lead to a guilty finding of an otherwise innocent person. They include: ineffective and inexperienced legal counsel overmatched by professional prosecutors, insufficient oversight from the bench, coerced confessions, previous criminal record of the accused, seemingly conclusive circumstantial evidence, community pressure for a conviction, a botched crime scene, prosecutorial misconduct, faulty eyewitness identification, unavailability of materials for police investigation , misconduct of the police, to mention a few.
d) It is no longer a deterrent to capital crimes
It is believed that the death penalty wields both the retributive and deterrent function. The reverse would however be the case in Nigeria today because kidnapping, armed robbery, terrorism, rape and other capital offences are still increasing in greater magnitude, and assuming a daring and fierce dimension by the day. Hence, the idea of deterrence has been defeated as the death penalty has not served that purpose.
The concept of retributive justice is outdated and its obsolescence in the twenty-first century’s global justice system goes without saying that the world today is tilting towards restorative, reformative and rehabilitative justice. Retributive justice is not true justice as it does not remedy the wrong in its actuality but merely does another wrong. This accounts for why many countries are gradually doing away with capital punishment in their administration of the criminal justice system–the emphasis presently is on reformative and rehabilitative justice.
5. CONCLUSION
The International Commission against the Death Penalty (ICDP) welcomed the adoption of the ninth United Nations General Assembly resolution on a moratorium on the use of the death penalty (UNGA moratorium resolution), which was supported by a record number of 125 countries on 15 December, 2022 at the UNGA plenary session. 37 countries voted against the UNGA moratorium resolution while 22 abstained. Nigeria registered an abstention vote. This signals a change in the country’s attachment to capital punishment because in 2007 and 2008, Nigeria voted against UNGA Moratorium resolutions, which called for the establishment of a moratorium on the use of the death penalty.
This writer is of the opinion that an evil deed is not redeemed by another evil deed in retaliation neither is justice advanced in the taking of a human life. Therefore instead of the death penalty, criminals deserving of capital punishment should be incarcerated for life. Also, a government which cannot protect lives, should not be allowed to take lives, the government is therefore enjoined to strengthen the Police and equip them to detect potential crimes before they occur and prevent them. Following the popular saying that “an idle mind is the devil’s workshop”, job opportunities or financial empowerment to create jobs should be made available for citizens either by the government or well-meaning individuals to prevent idleness that might lead to commission of crime. It is hereby submitted that the government should abolish the death penalty. For the time being, an official moratorium should be placed on the execution of the death penalty.
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References
1. Constitution of the Federal Republic of Nigeria, 1999 as altered
2. Criminal Code Act, Cap 38 LFN, 2004.
3. Penal Code Act, Cap P3 LFN,2004.
4. Nigerian Armed Forces Act, Cap A20 LFN, 2004.
5. The Nation. (2017). Kidnapping: Is death penalty the answer? Available at https://thenationonlineng.net/kidnapping-death-penalty-answer/ Accessed on March 15, 2023
6. Archibong, J.E. (2023). Right to life and the state’s power to kill: The quandary over death penalty in Nigeria. Journal of Legal, Ethical and Regulatory Issues, 26(S1), 1-10. Available at
https://www.abacademies.org/articles/right-to-life-and-the-states-power-to-kill-the-quandary-over-death-penalty-in-nigeria-15498.html Accessed on March 15, 2023.
7. Onuoha Kalu v State (1998) 12 S.C.N.J. 1.
8. Akinyemi v State (1999) 6 NWLR 465, 607
9. Bryan. A Garner, Black’s Law Dictionary (10th edition).
10. Damian Ugwu, Kill or not kill: Unending debate about death penalty in Nigeria (2022). Available at
https://punchng.com/kill-or-not-kill-unending-debate-about-death-penalty-in-nigeria/ Accessed March 15, 2023.
11. Ifeoluwa Adediran, “World Day Against Death Penalty: Lawyers, groups seek review of death penalty” (2021). Available at https://www.premiumtimesng.com/news/more-news/489217-world-day-against-death-penalty-lawyers-groups-seek-review-of-death-penalty.html Accessed on March 15, 2023.
12. DemoEssays. (2022). Capital Punishment: Arguments For and Against. Available at https://demoessays.com/capital-punishment-arguments-for-and-against/ Accessed on March 16, 2023.
13. The Holy Bible, Genesis 4 :1- 26
14. Nafiu Bello v Attorney General of Oyo State (1986) 5 NWLR 820
15. Faith A. Joseph (2022). The Impropriety of Capital Punishment in Nigeria. Available at https://therenata.com/the-impropriety-of-capital-punishment-in-nigeria/ Accessed on March 15, 2023.
16. Paulina Lucio Maymon (2019). Nigeria’s Debate on Death Penalty: Sign Execution Warrants or Impose a Moratorium? Available at https://deathpenaltyworldwide.org/nigerias-debate-on-capital-punishment-sign-execution-warrants-or-impose-a-moratorium/Accessed on March 17, 2023.
