Custodial centres are bursting at the seams nationwide. No fewer than 3,008 of the inmates are condemned criminals whose death warrants are yet to be signed by governors, years after many of them had exhausted their appeals. Minister of the Interior Rauf Aregbesola believes executing condemned criminals is one of several ways to decongest the centres and save cost. But there are other arguments, writes ADEBISI ONANUGA.

Minister of the Interior, Rauf Aregbesola, on July 23, raised the alarm on congestion of custodial centres. He noted that the country’s correctional facilities have a combined capacity of 57,278 inmates but currently hold 68,747, comprising 67,422 males and 1,325 females. 50,992 inmates, which is 74 per cent of the population, are awaiting trial. Only 17,755 inmates, who constitute 26 per cent, are convicts.

The minister, who spoke at the inauguration of the Osun State Command headquarters complex of the Nigeria Correctional Service(NCS) in Osogbo, noted further that there are 3,008 condemned criminals awaiting execution in the centres. They comprise 2,952 males and 56 females, both making up 4.8 per cent.

 

Why Nigeria has a high number of condemned convicts

There are several reasons for the relatively high number of convicts on death row. Firstly, the death sentence is still a lawful method of punishment under the law. Secondly, governors are traditionally reluctant to sign warrants authorising custodial officials to execute condemned persons. They are also generally unwilling to pardon condemned persons. Another, perhaps unusual, reason has to do with the hangman.

A competent source told The Nation that there is just one hangman in the country, who goes wherever his service is needed.

This explains why a condemned convict will stay on in prison for years without hope of obtaining state pardon and thereby swelling the overstretched prison population and facilities.

Between 2007 and 2017, there were only seven executions.  The last execution took place in 2016, according to a report by Amnesty International (AI).

 

The law empowering governors to sign death warrant

Before the execution of a condemned convict can be carried out, the law requires that the governor must sign the death warrant of the condemned prisoner.

This is in furtherance of Section 33(1) of the Constitution, which provides that “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”.

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Death warrants were last signed in 2013 in Edo State for the execution of  five condemned prisoners, four of whom were executed by hanging.

 

Notable condemned convicts in prisons

One of the most notorious condemned convicts is the leader of the Christian Praying Assembly, Rev. Chukuemeka Ezeugo King, who was sentenced to death in 2007 and which was confirmed by the Supreme Court in 2016. He has thus been awaiting the hangman’s noose for 14 years.

Justice Raliat Adebiyi of an Ikeja High Court, Lagos on December 17, sentenced a Lagos prince to death by hanging for strangling his boss to death and dumping her body in a well. The convict, Prince Adewale Oyekan, son of the late Oba Adeyinka Oyekan, who died in 2003, murdered Alhaja Sikirat Ekun, a businesswoman and politician, on October 1, 2012. Oyekan, who managed Ekun’s restaurant, paid her former domestic servant, Lateef Balogun, N6,000 to kill her, the prosecution said.

The pair strangled the 62-year-old woman before throwing her body down a 1,000-feet well in her home.

Also on January 28, 2020, the High Court of the Federal Capital Territory, Abuja, convicted and sentenced Maryam Sanda to death by hanging for killing her husband, Bilyaminu Bello.

Delivering judgment, Justice Yusuf Halilu said: “Every available evidence” had proved that Maryam “fatally” stabbed her husband to death in Abuja on November 19, 2017.

There is also the case of Paul Egbunuche, who was sentenced to death alongside his father, Celestine Egbunuche. He had been in jail for 18 years and on death row for six years.

They were both accused of hiring people to kidnap and kill a man over an alleged land dispute in Imo State. Though they maintained their innocence, they were detained in June 2000 and eventually convicted and sentenced to death in 2014.

The turning point came for Celestine when a photo he took with his son, Paul, on the occasion of his 100th birthday and a story by a local newspaper on them went viral. Their case renewed the debate on length of time condemned prisoners spent waiting for the hang man and agitation for their release, especially the father.

Celestine Egbunuche was eventually granted state pardon by former Governor Rochas Okorocha of Imo State but died about four months from health challenges he faced while in custody of the Enugu Custodial Centre.

 

Solution to congestion

To decongest the facilities, Aregbesola proposed three measures.

The first and most radical, is for governors to sign the death warrants of condemned criminals who have exhausted their appeals. Executing the inmates would free up space for other categories of inmates.

Secondly, the governors could set free, on compassionate ground, other categories of inmates. These include aged inmates on account of the long time spent in custody, the terminally ill and those who have been reformed and demonstrated exceptionally good behaviour; those who have been in custody for a period longer than the maximum sentence their alleged offences carry, which he described as a miscarriage of justice.

Thirdly, commute other sentences to life or a specific term in jail by putting in place a system of amnesty and prerogative of mercy that will review all cases of convicts on death row periodically.

 

Death sentence in other climes

According to Washington DC based Death Penalty Information Centre, the death penalty has now declined dramatically around the world in recent years. Between 1976 and 2017, more than 75 nations have abolished the death penalty for all crimes, while others have abolished it for capital crimes.

 

Stakeholders kick

Coming at a time when the world is moving away from death sentence and the Federal Government is under pressure to expunge death sentence from its laws, Aregbesola’s suggestion on signing the death warrant drew the ire of many stakeholders.

But while Senior Advocates of Nigeria (SAN) Chief Wale Taiwo and Chino Obiagwu opposed the idea, Lagos-based activist lawyer Kabir Akingbolu backed the minister’s proposal.

Unconstitutional for governors to refuse to sign death warrant

Akingbolu argued that under the Criminal Code, “the death sentence is still part of our laws. So, except we repeal those laws or they are no more in effect, then we can say the death sentence should not be carried out again.

“A judgment has been passed by a court, the governor of the state must complement it by signing the death warrant of each of the condemned persons. It is unconstitutional (for governors to refuse to sign); they are not performing their constitutional duties. The law recognises this.

“Even the fundamental human rights that we talk about, Section 33 says we have a right to life, but Section 45 says this right can be taken away in pursuance of execution of a valid court order.

“Someone who was charged with murder, was convicted at the high court and sentenced to death, lost at the Court of Appeal and the Supreme Court confirmed the death sentence, what is he still waiting for?”

The activist argued further that, yearly, the country budgets “billions to feed those who are not supposed to be among us again. But because we want to look like a modern society, because we say in Europe they don’t kill anymore, we now say we leave them in prison. They are eating our money; it’s a technical conversion to life imprisonment.

“Even in the Bible or Quran, it is an eye for an eye. If you take life, you surrender your life as well. The law is there, why are we not enforcing it?

Noting that prison congestion is a real menace, Akingbolu said inmates were living in sub-human conditions.

He said: “If you go there you will see lice, bedbugs; where they live is in squalor; the food, their welfare is too poor. The fact that somebody has been condemned to prison does not mean that he has lost all rights. It is supposed to be a correctional facility, but the conditions meted out on them are inhumane, degrading and not compatible with modern society.

“There is no how we can achieve a humane, modern prison system if our prisons are still overpopulated. That’s why I agree with Interior Minister Rauf Aregbesola in toto.

“By signing a death warrant you would not have committed any legal or religious crime; the law of the land recognises it. So, why should we say they shouldn’t kill? They should sign the death warrant.

“According to Aregbesola there are already 3,008 inmates that are supposed to be dead by now, but have not died. They have no reason to be living again; even leaving them in prison is another torture, because of the fear of the hangman that will not come, that “I may be killed tomorrow, I may be killed tomorrow” but nothing is coming.”

But Chief Taiwo differed.

He reflected on the constitutional guarantee of the right to life made subject to the provision for death sentence as might be pronounced by a court, noting that in Nigeria and elsewhere, the proviso has generated much controversy with opinions divided.

Taiwo argued that Aregbesola’s call for governors to sign death warrants of convicts is an invitation for the implementation of the full letters of the law.

“However, it is pertinent to observe that entitlements of a person under the law can either come as a right or privilege. Condemned criminals who have exhausted their rights of appeal still have certain privileges. Privileges that might come by way of a prerogative of mercy from the Executive remain intact,” he said.

The SAN urged governors not to rush into signing death warrants

He said: “So, can a convict have a second chance to life? I dare to answer in the affirmative. The governor is empowered under the constitution to extend such privileges to a condemned convict. That is why it is important that governors should not rush to sign death warrant”.

 

A faulty justice system

He further opposed the minister on the ground that the country’s justice system is not foolproof.

Taiwo asked: “What is the justice behind granting pardon to a particular condemned convict while the other is executed in accordance with the law? Again, the justice system in Nigeria is not in its best form. More than 85 per cent of convictions for capital offences in Nigeria are secured through confessional statements, majority of which come as a result of coercion by the law enforcement agencies. Nigeria needs an organisation like the Innocents Project in the United States of America that is committed to exonerating innocent persons wrongly convicted through the use of DNA testing.”

He further campaigned for the abolition of the death sentence

“My take is, and I say this with all sense of responsibility, that it is high time Nigeria joined the rest of the civilised world to abolish capital punishment in all ramifications. It is barbaric, it is inhuman, it is brutish and should not be allowed to thrive.

“The best approach to decongesting the prisons is not to hurriedly execute condemned criminals, but not to congest the prisons in the first instance and this is possible by creating a society devoid of crime and criminality,” Taiwo said.

 

How to decongest prisons, by LEDAP

Legal Defence and Assistance Project (LEDAP) also joined the opposition.

Its Executive Director, Chino Obiagwu (SAN), argued that the best way to decongest the prison was to ensure that the 50,992 inmates in the correctional facilities got a fair trial with adequate legal representation.

This, he added, will go a long way in decongesting the correctional centres nationwide “rather than call for the execution of death row inmates of a mere 3,008.”

He expressed concern that the execution of inmates on death row was a final, irreversible punishment and the huge risk of executing an innocent person could not be eliminated.

The group further argued that the use of death penalty has never been proven to be an effective tool for deterring people from committing crimes.

It referenced Section 35 (4) of the Constitution that stipulates that the police must bring a person before a court of law within “a reasonable time”, noting that if there is a competent court of jurisdiction within a 40-kilometre radius, “a reasonable time” is defined as 24 hours.

“If suspects have not been brought before a competent court of jurisdiction within two months, they must be released unconditionally or “upon such conditions as are reasonably necessary to ensure that he appears for trial at a later date.

LEDAP noted that in practice such principles and provisions of law were not adhered to by the police.

Obiagwu said: “It is only reasonable that the priority and focus of the Ministry of Interior should be channelled towards ensuring that the 50,992 inmates get a fair trial with adequate legal representation which will go a long way in decongesting the correctional centres nationwide rather than calling for the execution of death row inmates.”

 

Prisoner can’t be executed while case is pending

LEDAP said it currently has two pending cases in court: Godwin Pius & 2 Ors. V Governor of Abia State & 35 Ors (CA/L/797M/12) and Nnenna Obi & Anor v Comptroller General of Prison Services (FHC/ABJ/CS/1644/2020), challenging the constitutionality of death penalty of all inmates on death row in Nigeria.

“We strongly urge all state governors to desist from signing the death warrant. It is noteworthy to state that the Supreme Court in the case of Nasir Bello v Attorney General of Lagos State held that a prisoner cannot be legally executed while his case is pending in court,” the lawyer said.

LEDAP argued that death penalty as a form of punishment  was not the solution to crime and must be condemned in Nigeria.

LEDAP said: “This cruel, inhumane form of punishment has been discredited as an effective form of punishment. In most cases, these inmates on death row were convicted in grossly unfair trials, on the basis of torture-tainted evidence with inadequate legal representation.

“Furthermore, by virtue of Section 17 (2) (a) of the Constitution of Nigeria 1999 (as amended), ‘every citizen shall have equality of rights, obligations and opportunities before the law’.

“The weight of death penalty is largely disproportionally carried by those with less advantaged socio-economic status in the society considering their limited access to adequate legal representation, or being underprivileged in their experience of criminal justice system where the affluent persons are treated with utmost courtesy notwithstanding the gravity of the offence.”

In conclusion, the group argued that the death penalty undermined human dignity.

“We are calling on the Nigerian government to enact an official moratorium, as this will contribute to the enhancement and progressive development of human rights,” Obiagwu added.