Illegality of death penalty

A fortnight ago, President Goodluck Jonathan called on the 36 state governors to sign death warrants to facilitate the immediate execution of the over 900 convicts who are awaiting the hangman in the country’s prisons. In a bid to tackle the problem of prison congestion the President was reported to have said that “in the case of capital punishment, the state governors will sign. Even governors find it difficult to sign. I have been telling the governors that they must sign because that is the law.” Pursuant to the illegal directive four condemned prisoners were executed in Benin prison last week.

Having not signed a single death warrant while he was the Bayelsa state governor the President knows there are many factors which militate against the signing of death warrants by governors under a democratic dispensation. It is also curious to note that President Jonathan has expressing concern over prison congestion when he has just signed the so-called Prison Exchange Bill which has legalised the dumping of Nigerians convicted abroad on our prisons.

Ironically, while the President is desirous to  liquidate 900 death row prisoners the Federal Government  has directed the local ill-congested prisons to receive about  1000 prisoners of Nigerian nationality serving jail terms in British prisons.

Unlike military governors who were trained to kill, civilian governors are usually reluctant to sign death warrants of  convicted and sentenced to death. When Nigeria was under military rule there was no right of appeal from special military tribunals set up by military dictators to try people charged with treason, armed robbery and other capital offences. In fact, I had to obtain a court order to restrain a military governor from approving the execution of the so called 12 “kid robbers” who were wrongly sentenced to death by an armed robbery tribunal in Lagos state in 1989.

But the situation is totally different under a democratic dispensation where anyone sentenced to death is entitled to the constitutional right of appeal. To that extent, the President’s directive cannot be carried out in respect of most of the condemned prisoners whose appeals are pending in either the Court of Appeal or the Supreme Court.

In the case of Nosiru Bello v Attorney-General of Oyo State (198) 2 N.S.C.C. 1257  the supreme court condemned the government of Oyo State for executing a convicted armed robber whose appeal was pending at an appellate court. Speaking for the apex court, the Late Justice Anthony Aniagolu said that: “This is the first case in this country, of which I am aware, in which a legitimate government of this country – past or present; colonial or indigenous – hastily and illegally snuffed off the life of an appellant whose appeal had vested and was in being, with no order of court upon the appeal, and with a reckless disregard for the life and liberty of the subject and the principles of the rule of law. The brutal incident has bespattered the face of the Oyo State Government with the paintbrush of shame.”

In Nosiru Bello’s case, the Supreme Court further held that “the execution of a convicted prisoner is the last act, in a series of act, beginning from his arrest: his trial and conviction; his appeals, and even after the appeals, the governor of a state still has to consider the Report of the trial judge sent pursuant to the Criminal Procedure Law and finally, the report of the Committee for the Prerogative of Mercy.

It is after all these have been exhausted that the Appellant goes under the hangman’s noose or (as in the instant case) faces the firing squad”.  The condemned prisoners cannot be blamed for a legal system that makes it impossible to have appeals heard and determined within a reasonable time.

In Nemi v. Attorney-General of Lagos State (1996) 6 NWLR 42 at 55 the Court of Appeal held that a convict on death row is entitled to challenge torture, inhuman or degrading treatment arising from a prolonged delay in executing him. In Ogugu v. The State (1994) 9 NWLR (PT 366) 1 at 47 the Supreme Court held that “The executive and judicial authorities must accept responsibility of ensuring that execution follows as swiftly as practicable after sentence, allowing reasonable time to appeal and consideration of reprieve”.

From the above judicial authorities, it is indisputable that the execution of a condemned person ought to be carried out as swiftly as possible after sentence of death has been passed and confirmed by the Governor. Thus, by keeping the convicts on death row for periods ranging from 10-20 years in dehumanising prison conditions the State can no longer execute them. In the circumstance, the death sentences passed on such persons can only be commuted to life imprisonment or shorter period of imprisonment. In Kigula & Others v. The Attorney-General (2005) AHRLR 197 (up cc 2005) Page 197 at 221 the Supreme Court of Uganda directed the respondent to commute death sentences passed on the Appellants to life imprisonment on the ground that “the inordinate delay in carrying out the death sentence after it has been confirmed by the highest appellate court is inconsistent with articles 24 and 44(1) of the Constitution. A delay beyond three years after the highest appellate court has confirmed the sentence is considered inordinate.”

It is pertinent to draw the attention of the President to the recent decision of James Ajulu & Ors v. Attorney-General of Lagos State (Unreported Suit No. ID/76M/2008) where the Lagos High Court (Per Olokoba J.) held that while the death penalty is not unconstitutional the execution of the applicants (condemned prisoners) by firing squad or hanging is unconstitutional as it violates the fundamental right of the applicants to dignity guaranteed by Section 34 of the Constitution. Based on the historic verdict the Legal Defence and Assistance Project  filed a suit on behalf of all the other condemned prisoners wherein the right of the State to execute them is being challenged.

One of the legal issues being canvassed is that the State has lost the power to execute them having subjected them to mental agony and psychological trauma of waiting for the hangman for several years due to no fault of theirs. Until the case is conclusively determined it is a mockery of the rule of law on the part of governors to sign the death warrant of any death row convict.

Furthermore, the call made by the President did not take cognisance of the moratorium placed on the death penalty in 2006 by the United Nations. As a responsible member of the international community Nigeria has so far honoured the terms of the moratorium. Indeed, it is on the basis of the moratorium and the recommendations of the Prerogative of Mercy Committees of the states that a number of condemned prisoners have had their death sentences commuted to life imprisonment by some state governors.

The official policy of placing moratorium on death penalty was reiterated during the United Nations Human rights Council’s Universal Periodic Review in Switzerland, Geneva on February 9, 2009 when the Federal Government stated:

“Nigeria, is however, not oblivious of the global debate on the propriety or otherwise of the death sentence.  In the spirit of the global trend, Nigeria has constituted a National Committee on the review of the death sentence. With regard to the moratorium on death penalty, though we voted against it in the UN General Assembly resolution, Nigeria continues to exercise a self imposed moratorium.”

I would therefore like to call on President Jonathan to withdraw the directive for the immediate execution of condemned prisoners. However, if the directive is carried out in utter violation of the constitutional right of appeal of the over 900 convicts and they are killed before the determination of their appeals it will be tantamount to a crime against humanity for which the President may be charged and tried  before the International Criminal Court.

State governors are particularly cautioned to refrain from implementing the President’s directive to avoid being dragged with him before the International Criminal Court. Instead of asking for the blood of the victims of socio-economic injustice in the land President Jonathan should declare a state of emergency on official corruption which has become a component part of the Transformation Agenda. In other words, it is immoral to continue to execute victims of official corruption while the perpetrators of the heinous crime are allowed to enjoy their loot under dubious plea bargain deals arranged for them by the Federal Government.