Two rights groups, the Access to Justice (A2Justice) and the Avocats Sans Frontèires France, have filed a suit at the High Court of the Federal Capital Territory, Abuja to challenge the mandatory imposition of the death penalty by courts for armed robbery.
They seek to overturn all death sentences passed under laws that denied courts the jurisdiction to impose alternative sentences.
The plaintiffs argued that the imposition of mandatory death penalty pursuant to Section 1(2) of the Robbery and Firearms Act and similar provisions is unconstitutional and inconsistent with the 1999 Constitution and other international obligations.
Attorney-General of the Federation (AGF), Nigerian Prisons Service Controller-General and the National Human Rights Commission (NHRC) are the defendants.
Under Section 1(2) of the Robbery and Firearms Act, a judge is required to impose a death sentence on those found guilty of the capital offence of armed robbery.
But, the plaintiffs argue that the mandatory imposition of the death penalty does not take into consideration whether such sentence is appropriate for the crime.
The Amnesty International Global Report on Death Sentences and Executions 2017 says that 2,285 persons are known to be under the sentence of death in Nigeria as at December 2017.
The plaintiffs, represented by their counsel Dr Oluwatoyin Badejogbin and Dr Agada Elachi, are praying for a declaration that Section 1(2) of the Robbery and Firearms (Special Provisions Act) Act, Cap R11 and similar statutory provisions that make the death penalty mandatory in Nigeria violate the right of appeal and fair hearing guaranteed by sections 36, 233(1) and 241(e) of the 1999 Constitution and Article 7(1)(a) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, (African Charter), and are unconstitutional, unlawful and void.
They sought declarations that the provisions perpetrate a discriminatory system for awarding the death sentence; violates the rights to human dignity, equality before the law and equal protection of the law; violate the separation of powers, and are unreasonable, unjustifiable and inconsistent with section 45 of the Constitution, among others.
They sought an order for the defendants to immediately commence processes for re-sentencing convicts who were sentenced under Section 1(2) of the Robbery and Firearms Act.
The plaintiffs prayed the court to order for the second defendant to immediately remove convicts sentenced under the law from death row and reassign them to appropriate prison facilities pending the review of their sentences.
They sought an order directing the NHRC to examine within six months of the order, the cases of death row inmates who were sentenced under sundry mandatory death penalty laws and to commence processes for the review of their sentences.
The plaintiffs said: “The obligatory element in mandatory death penalty provisions violates section 36(4) of the 1999 Constitution and Nigeria’s obligations under Article 7 of the African Charter. Both provisions recognise the right to a fair trial, which includes the right of appeal.
“The mandatory death sentence circumscribes the right by foreclosing appeals against sentence.
“The mandatory death penalty also detracts from the obligation of courts to accord defendants their fair trial rights under the aforesaid provisions of the Constitution and African Charter.
“The right imposes two obligations on courts, namely the obligation to entertain pleas for sentence mitigation and to hear appeals against sentences. The mandatory death penalty precludes courts from discharging both obligations.”
The plaintiffs further argued that the mandatory death penalty provisions discriminate against offenders who are not members of the armed forces by denying them the rights of appeal that service men enjoy.
They noted that whereas the Armed Forces Act allows service men to appeal mandatory death sentences, civilians cannot.
The plaintiffs added: “Mandatory death penalty laws also discriminate between crimes or offenders.
“Whereas a mandatory death sentence attaches to armed robbery, regardless of whether the crime resulted in the victim’s death, the death sentence is discretional for capital crimes under the Terrorism Prevention Act 2011 (TPA) as amended.
“Under the TPA also, the penalty for murdering an internationally protected person is life-imprisonment. This discriminatory approach violates section 42 of the 1999 Constitution.
“It also violates the right to equality before the law and equal protection of the law guaranteed by Article 3 of the African Charter.
“The principle that punishment must fit the crime is a very important principle of criminal law. It is also a constitutional principle that is recognised under international and regional law.
“The mandatory death penalty easily violates this principle because it is prone to arbitrariness, and to being excessive, disproportionate, inhuman and degrading. It violates Articles 3, 4 and 5 of the African Charter.
“Mandatory death penalty provisions violate section 4(8) of the 1999 Constitution by stripping courts of jurisdiction to entertain appeals against mandatory death sentences. They violate Section 6(6)(a) of the 1999 Constitution by stripping courts of discretion.
“According to Section 6(6)(a), judicial powers include all inherent powers and sanctions of a court of law. Part of this panoply of judicial powers is the inherent power of judicial discretion.
“The mandatory death penalty abrogates this power in sentencing, stripping courts of capacity to determine when the death penalty fits a crime. This violates the separation of powers.
“The mandatory death penalty, as with all punishments, is a limitation on the fundamental rights of the condemned offender.
“Section 45(1) of the 1999 Constitution requires laws that limit rights to be reasonably justifiable in a democracy. The mandatory death penalty does not fulfill any objective that is reasonably justifiable in our democracy,” the plaintiffs said.
The suit has been assigned to Justice J. Okeke.
