Constitutional lawyer and activist Chief Mike Ozekhome (SAN) argues that executing condemned criminals is legal in Nigeria.
When the apex court speaks, lower courts, especially the Lagos State Court, must blow muted trumpets and surrender to superior authority. This is not because the apex court is infallible. No. it is because it is the final court.
Indeed, the apex court once beat its chest imperiously in the case of Adegoke Motor Ltd Vs. Adesanya (1998) 13 NWLR (pt. 109) 250, 274 – 275, in the following flowery prose: “We are final not because we are infallible, rather we are infallible because we are final. Justices of this court are human beings capable of erring. It will be short sighted arrogance not to accept this obvious truth.”
Offences that attract
the death penalty
Some offences in Nigeria attract the death penalty, which must be imposed by the judge once such a person is found guilty. It is not unconstitutional. The convict must have to die by hanging or firing squad.
These include treason, mutiny under military laws, kidnapping, terrorism, offences of armed robbery, murder under the Criminal Code, homicide punishable with death under the Penal Code, and instigating invasion of Nigeria. During military dictatorships, the offence of armed robbery under the Robbery and Firearms (Miscellaneous Provisions) Act, 1984, was punishable with death by firing squad.
The Penal Code that operates in the northern part of Nigeria provides for capital punishment for a variety of offences, such as: sodomy, hiraba (high way robbery), apostasy (Ridda), abetting the suicide of a minor, drunken or mentally challenged person, rebellion (bag’ yi), attempt to commit culpable suicide by a prisoner already serving life sentence, giving false evidence that leads to the conviction and execution of an innocent person during trial, adultery (Zira), etc.
Modes of execution
Different legal systems across the world have various methods of capital punishment for condemned persons found guilty of committing the most heinous of crimes, such as rape, murder, treason, kidnapping, etc.
In the USA, lethal injection through administering powerful sodium thiopental, pancuronium bromide and potassium chloride, is still considered the most humane form of execution. In Iran, execution by hanging is the most common method, as experienced by 369 hangings in 2013, the highest in the world. Other countries that use hanging include Nigeria, Malaysia, India, Iraq, Afghanistan, Japan, Bangladesh, Palestine, Botswana, Sudan and South Sudan.
Firing squad by which a condemned prisoner is tied to the stakes, and shot by a line up of armed men, is the preferred method in Indonesia. It was the common method used in Nigeria during successive military juntas. Somalia, Saudi Arabia, China, Yemen, North Korea and Taiwan also use firing squad.
Beheading – Saudi Arabia is the only country in the world that uses public beheading as capital punishment.
Electrocution through the electric chair is used only in the USA. In 2008, the Nebraska Supreme Court declared it illegal for being “cruel and unusual punishment”. It was discovered in Oklahoma that a prisoner had writhed in “violent struggle” before dying.
Amputation – under Sharia Law, Buba Jangebe was, on May 8, 2000, amputated in Zamfara State, for stealing a cow.
Stoning is frequently used in Saudi Arabia, Sudan, South Sudan, Iran, Somalia, Yemen and some Moslem parts of Northern Nigeria.
Antiquated modes of execution
Other forms of capital punishment which have since become obsolete and hardly used in modern times, include: crucifixion (Lord, thank you for paying the supreme price for my sins); suffocation, smothering, starvation, poisoning, falling, Gibbeting (death inside a cage); poena cullei (Roman empire, when a prisoner was stuffed into a sack with animals and thrown into water); dismemberment, disembowelment (sepukka – hara-kiri); decapitation, cooking, crushing, burying alive, burning, boiling to death; blowing from the mouth of a canon, tearing apart by animals, back –breaking, crushing or devouring by animals, etc.
Are hanging or firing squad
‘inhuman and degrading
treatment’?
In Nigeria, the death penalty is legal and constitutional. This has been so since the 1960 Independence Constitution and 1963 Republican Constitutions. Section 33 of the 1999 Constitution legalizes it as follows:
“(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 at which he has been found guilty in…”
Consequently, the death penalty is legalized, if: (a) it is in execution of a sentence of court; (b) for the defence of any person from unlawful violence, or for the defence of property; (c) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; and (d) for the suppression of a riot, insurrection or mutiny.
In Onuoha Kalu V. State (1998), 13 NWLR (part 583) 531, the apex court considered the appellant’s argument that not only was the sentence of death passed on him under section 319(1) of the Criminal Code of Lagos State inconsistent with section 30 subsection (1) of the 1979 Constitution, (ipssisima verbis section 33(1) 1999 Constitution), but was also inconsistent with the provisions of section 31subsection (1)(a), which states: “31 – (1), Every individual is entitled to respect for the dignity of his person, and accordingly – (a) No person shall be subjected to torture or to inhuman or degrading treatment”
The Supreme Court rejected this argument thus: “The question is: can the passing of a sentence of death recognised by the Constitution in section 30 subsection (1) thereof be equated to torture and degrading treatment? The contention of the appellant is that a sentence of death is degrading and inhuman and therefore it is inconsistent with the provisions of Section 31 subsection (1) (a) of the Constitution, In his effort to substantiate the contention, learned counsel for the appellant cited a number of cases decided in other jurisdictions of the world. Useful as those decisions might be passive authorities, with respect, I do not find them applicable to the present case.’’
The position is Nigeria is very clear. Death sentence is a reality. It is provided for by our criminal laws including section 319 subsection (1) of the Criminal Code of Lagos State. Our Constitution also recognises the death sentence – see in particular sections 31, 213(1)(c) and 220(1)(e) thereof. Therefore, the sentence of death in itself cannot be degrading and inhuman as envisaged by section 31 subsection (1)(a).
There is nothing in the Constitution of the Federal Republic of Nigeria, 1979 that renders the death penalty under section 319(1) of the Criminal Code of Lagos State unconstitutional. On the contrary, there are sections of the Constitution, such as sections 30(1), 213(2)(d) and 220(1)(e) which in no mistake terms recognize the death penalty”
In Joshua Vs. State (2009) All EWLP (pt. 975) 1020 (CA), the Court of Appeal, relied on Kalu Vs. State (supra) and held that though abolished in other jurisdictions, the Constitution of Nigeria still recognizes the death penalty. In GABRIEL VS. STATE (2010 6 NWLR (pt. 1190), the intermediate court rejected foreign decisions and held that the death penalty is constitutional in Nigeria; just as the apex court did in AMOSHIMA VS. STATE (2011) All FWLR (part 597) 601 (SC), where it held that the death sentence is not unconstitutional and did not derogate from the hallowed doctrine of separation of powers.
Do death row inmates have rights?
Yes. The legality of the death penalty should not be confused with the illegality exhibited in the infamous case of Aliu Bello Vs A- General, Oyo State (1986) 5 NWLR (part 45) 828, where one Nosiru Bello who had been convicted of armed robbery by the High Court of Oyo State and was sentenced to death, had filed an appeal against this conviction. Surprisingly, while his appeal was still pending before the Court of Appeal, the A-G of Oyo State recommended his execution. He was promptly executed. The execution was declared illegal by the trial court and this was upheld by the Court of Appeal, and the Supreme Court. The apex court also held that the premature execution constituted a blatant infringement of the deceased’s fundamental right to life. Thus, a person condemned to death is still entitled to his fundamental rights pending his execution.
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 dilated 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 or reprieve”.
A similar decision was arrived at in Dominic VS. AIG (2008) All FWLR (pt. 420) 775. This point was also emphasized by Belgore, JSC (as he then was), in Onouha Kalu VS. STATE (supra).
“At any rate, if after death sentence has been passed and the accused is in prison custody, if anything arises outside the normal custody that amounts to “torture or inhuman or degrading treatment”, that will be cause of action under fundamental rights but not militating against the sentence of death. In such a case the death sentence stands.
“Inhuman and degrading treatment” outside the inevitable confinement in death row will not make illegal the death sentence, rather it only gives ground for an enforcement right under the Constitution.”
This case puts to rest a decision such as the Ugandan case of Kigula & Ors. V. The Attorney-General (2015) AHRLR 197 (up cc 2005) page 197 at 221, where the Ugandan Supreme Court ordered the state to commute death sentences passed on the appellants to life imprisonment on the ground that “the inordinate delay in carrying the death sentence after it had been confirmed by the highest appellate court was inconsistent with article 24 and 44(1) of the Constitution”. This decision is absolutely not binding on any Nigerian court. It can, at best, be of persuasion.
However, in SOERING V. UK (1989) 11 EHRR, 439, the European Court held that the death penalty did not breach Article 2 of the European Convention, (equivalent of section 33 1999 Constitution); but that it violated Article 3 (inhuman and degrading treatment), because of the exposure of the victim on the death row to unacceptable level of stress and anxiety while awaiting his sentence and subsequent appeals; and especially considering the convict’s age and mental stability.
What next?
I wish Rev King well. I appeal to the Lagos State Government to commute his death sentence to life imprisonment, strictly on compassionate ground only. But, most people who argue for Rev King and others, are merely swayed by sheer sentiments and emotion, not law and justice. They easily forget that innocent lives were prematurely exterminated. The real victims remain forgotten in cold, deserted lonely graves, without anyone thinking of restitution for them and their bereaved families and friends. Only the survival of the convict becomes increasingly prioritised. Where is the justice or restitution for the humanity, dignity and memory of the deceased, who were gruesomely murdered? What has happened to our sense of justice and fairness? Said Socratic Justice Oputa, in Josiah V. State (1995) 1 NWLR (pt. 1) 125:
Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two – way traffic. It is really a three-way traffic – justice for the appellant, accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, whose blood is crying out to heaven for vengeance and finally, justice for the society at large – the society whose social norms and values had been desecrated and broken by the criminal act complained of.
