‘Executing Death-Row Prisoners To Reduce Prison Congestion Is Outrageous’
Speaking at the official commissioning of Osun State Command Headquarters of Correctional Office Complex in Osogbo on 23rd July, 2021, the Hon. Minister of Interior, Ogbeni Rauf Aregbesola had stated that, out of 68,747 inmates currently housed in correctional facilities nationwide, 50,992 of them are awaiting trial, while 17,755 have been convicted and serving sentences. Also speaking on the challenge of congestion in Correctional Centres, the Minister revealed that its actual capacity of 57,278 has been exceeded by 18%. The Minister believes that, the if Governors “take the bold step” to sign execution orders for inmates on death row, it would help to resolve the problem of congestion.
The Death Penalty in Nigeria
The death penalty, as a sentencing instrument in Nigeria, is derived from Sections 33(1) and 34(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 33(1)) provides that: “Every person has a right to life, and no one shall be deprived 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”. The Supreme Court has also upheld the constitutionality of the death sentence in Nigeria.
Some of the offences which attract capital punishment in Nigeria include murder, terrorism-related offences, armed robbery, treason, false testimony leading to the execution of an innocent person, and aiding the suicide of a child or lunatic. In twelve Northern Nigerian States of Zamfara, Kano, Sokoto, Katsina, Bauchi, Borno, Jigawa, Kebbi, Yobe, Kaduna, Niger and Gombe where the Sharia Panel laws are applicable, adultery, rape, incest, sodomy, witchcraft, and blasphemy, also carry the death penalty.
Statutes Backing the Death Penalty in Nigeria
The Armed Robbery and Firearms Decree No. 5 of 1984 (now an Act) provides for the imposition of the death penalty, prescribing that offenders so sentenced, should be hanged by the neck until death or they die by firing squad. Public executions of offenders under this Decree were popular in Nigeria, especially in the 1980s and 1990s during the military era.
The Penal Code Act with various Criminal Code Laws applicable in Southern Nigeria, also provide for the imposition of the death penalty. The Sharia Panel Code applicable to the 12 northern States, previously prescribed stoning as the method of execution. The Administration of Criminal Justice Act, 2015, under Parts 38 and 39 (Section 401 to 415) provide details on procedures for imposition of the death sentence.
Governors and the Signing of Death Warrants
The law requires that Governors in whose jurisdiction an offender is domiciled, must give consent to carrying out a sentence of death through the signing of death warrant, before the death-sentenced offender is put to death.
Mr. Rauf Aregbesola, Nigeria’s Interior Minister, is not the first or only Government official to call on Governors to sign death warrants as a panacea to prison congestion. In 2013, former President Goodluck Jonathan, urged Governors to sign death warrants to reduce congestion in prisons. Even judicial officers have supported this patently obnoxious call. In 2017, the Chief Judge of Delta State, Marshal Umokoro, in a lecture titled “The Judiciary and Criminal Justice System: Odds and Ends”, urged Governors to fulfil their obligation of signing death warrants of condemned persons.
A few Governors have also both expressed, and demonstrated support for the death penalty. In 2013, then Governor of Edo State, Adams Oshiomhole signed death warrants of condemned prisoners, the same way as his successor Governor Godwin Obaseki in 2016, signed death warrants of three condemned prisoners. Alhaji Abubakar Sani Bello, Governor of Niger State, and Alhaji Abdullahi Umar Ganduje, Governor of Kano State, have both on separate occasions expressed their willingness to sign death warrants. The later expressed this position in a case which involved a Kano based Singer, Yusuf Sharif Aminu, who was sentenced to death for blasphemy. There is however, a general reluctance from a majority of Governors to sign death warrants.
Death Penalty: Increasingly Losing Acceptance in a Modern World
The death penalty is gradually being phased out all over the world. 108 countries have abolished the punishment. In the countries where the penalty has been abolished, some of the reasons cited include the evidence from research that points to the extreme nature of the punishment, and the failure of the punishment to achieve reform as previously thought. In Africa, Sierra Leone, Malawi and Chad are some countries which recently abolished the death penalty.
Access to Justice Denounces Minister’s Position
Access to Justice finds Minister Aregbesola’s proposal a preposterous one; it treats human lives as intrinsically expendable objects or commodities which may be dispensed with, in order to achieve a better representation of prison demographics. But, human life – whether of persons under sentence of death or not – is far too valuable as to be expended as a means of achieving an ulterior goal, and in this case, reconfiguring the prison population, or reducing it, and it is unfortunate that the Hon. Minister would make this kind of call.
Besides this, A2Justice fears that, if the Minister’s call is heeded, many death row convicts who have pending appeals against their convictions will be at risk of execution even before their appeals are determined, following administrative errors. This is not a misplaced fear, and there are precedents of such errors leading to unlawful executions.
Besides this, it is important to note that, even from the statistics reported by the Minister, it is clear that the problem of congestion is not as a result of an uptick in the number of sentenced persons, including those on death row. The congestion is caused by the disturbing demographic of inmates who are awaiting trial (pre-trial or under-trial inmates), who account for 74% of the total inmate population. What Government ought to do, is to step up to the plate and address the chronic problem of pre-trial detention, in order to manage the incidence of prison congestion, not to request that inmates be executed in order to reduce it.
Low Hanging Fruits
Many factors account for the high level of prison congestion, but part of them include, political persecution and the misuse of criminal justice institutions. The arrests and jailing of political and civil rights activists, including those agitating for the restructuring of Nigeria, #EndSARS protesters of Police violence, members of religious groups protesting the disrespect of court decisions to release their incarcerated members, or simply those clamouring for better political governance all aggravate the prison congestion problem. These are low hanging fruits and Government can, by simply accommodating dissent as part of the democratic process, alongside respecting other civil rights, ameliorate the pre-trial population of Correctional Centres.
Finally, Access to Justice is strongly opposed to the infliction of the death penalty, particularly given the vulnerabilities and frailties of Nigeria’s judicial system. It’s been said that, a State that must take life, must first give justice. Nigeria’s justice ecosystem, by which we mean the entire spectrum of the criminal justice process – from arrest right up to conviction – is fraught with treacherous weaknesses, and cannot be trusted to offer consistently fair and reliable results.
Implementing the death penalty will irredeemably jeopardise possibly innocent persons, who are themselves victims of a justice system heavily weighted against the poor and powerless. Moreover, the death penalty as a punishment is both extreme, and its sanctions irreversible after it is executed, even when errors are afterwards discovered. As Stewart J stated in in the notable American case of Furman v Georgia  USSC 170: “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict, as a basic purpose of criminal justice. And, it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity”.
Access to Justice thus, calls on the National Assembly to abolish the death penalty in Nigeria.
Paul Ashibel and Lazarus Chinweokwu, Staff of Access to Justice