A Lagos High Court Judge,Justice Mufutau Olokoba,has nullified the death sentence passed on five persons.
This declaration followed an originating summons filed by Mr Norrison Quakers (SAN) in 2008, against the Attorney-General of Lagos State on behalf of the five condemned persons, who were convicted at various occasions and for various offences between 1984 and 1995. They were to die by hanging or firing squad.
The judge, who described the mode of execution of the said punishment as an infraction on the right to human dignity of the condemned persons, granted a perpetual injunction restraining the respondents (Lagos State Government) from executing the condemned persons by hanging or firing squad
The applicants had, in the summons, sought the relief of the court to declare: the prescription of mandatory death penalty for offences such as armed robbery and murder a contravention of their right to dignity of the human person as well as not to be subjected to inhuman or degrading punishment under Section 34(a) of the Constitution of the Federal Republic of Nigeria, 1999; that the Criminal Code or Robbery and Firearms (Special Provisions) Act of the Federation 1990 in the circumstances of the applicants’ case unconstitutional, null and void.
An order of the court nullifying the mandatory death sentence by hanging or firing squad imposed on them pursuant to Section 319 of the Criminal Code Law of Lagos State, Cap C18 vol.2 and Section 1(2)(a), (b) and 3 for the offence of armed robbery under the Robbery and Firearms Act (Special Provisions) Cap 398 vol. XXII Laws of the Federation 1990 and Section 367 of the Criminal Procedure Law of Lagos State, Cap C18 col.2 as unconstitutional.
Reports from expert psychologists, pathologists and forensics from the University of Lagos (LUTH), Federal Neuro-psychiatrist Hospital, Yaba and Lagos State University Teaching Hospitals (LASUTH) were filed to support the claims of the applicants that death sentence inflicts mental torture on prisoners.
In his written address, Quakers proposed that the court should determine whether the imposition of mandatory death sentence on the applicants for murder and armed robbery violated their rights to dignity as enshrined in Section 34(a) is inconsistent and in conflict with the provisions of 34(1)(a) of the Constitution since the mode of execution is cruel and degrading; whether the applicants’ continued stay or confinement on death row under threat of execution for a long period of time is inherently cruel, inhuman and degrading and whether the National Assembly can legislate or prescribe the sentence of death as contained in the provisions of Section 33(1) and (2) of the 1999 Constitution.
He argued that although the Constitution in Section 33(1) sanctions death penalty, the modes of execution by hanging or firing squad as provided in sections 367 of the Criminal Procedure Law 1(2)(a), (b) and 3 of the Robbery and Firearms Act, violate 34(1)(a) of the 1999 Constitution since it involves torture and inhuman treatment.
The applicants’ counsel opined that the very pronouncement of the sentence of death by hanging or firing squad imposes mental torture on the convict which extends to the period between the pronouncement and the actual execution; and the actual execution itself is barbaric, inhuman, degrading and violative of Section 34(1)(a) of the 1999 Constitution.
Counsel to the state in a counter- affidavit urged the court to disregard the medical reports by experts submitted as exhibits by the applicants on grounds that they do not relate to the applicants and was merely an academic work.
Citing Ogugu vs the State where the Supreme Court held that death penalty per se does not under any circumstance amount to inhuman or degrading treatment but the manner or way a condemned prisoner is kept or executed, he urged the court to dismiss the application as the applicants have adduced no iota of evidence illustrating the way and manner in which they had been treated which amounts to inhuman and degrading.
In his ruling, Olokoba held that mental torture was an inevitable consequence of death sentence on the victims.
“My view on the first part of the argument is that it is an inevitable consequence of the sentence of death. It is a common human reaction to such pronouncement. I do not think there is a man or woman who upon hearing that he has been sentenced to death would shout for joy or would not experience mental torture.
“Once the sentence is pronounced the reaction is one of sorrow, anger, despondency and extreme fear as stated in the further affidavit of Francis Moneke sworn to on October 2, 2008 which itself contains the facts disclosed to him by Professor J.O. Obafunwa, Provost of the College of Medicine, University of Lagos and also contained in the affidavit of the respondent dated March 17, 2009.
“Since the death penalty itself is constitutional any reaction to its pronouncement by the convict is necessarily concomitant to it and cannot invalidate the law providing for it,” he said.
Addressing the constitutionality of the methods of execution provided by the Criminal Procedure Law and the Robbery and Firearms Act, Olokoba said it was a violation of the right to human dignity of a person as provided by Section 34(1) of the 1999 constitution
Citing the case of Peter Nemi against the State (1996), Olokoba said the ruling of Justice Uwaifo was an eloquent illustration for questioning the method of execution of a condemned prisoner.
“That is why in my humble opinion, a challenge to sections 367 of the Criminal Procedure Law and section 1(3) of the Robbery and Firearms Act questioning their constitutional validity in the face of Section 34(1) (a) of the Constitution is appropriate. It is therefore clear that the court may uphold the death penalty and declare the method of execution unconstitutional.
“Learned counsel for the defendant urged the court to disregard the evidence of experts in the medical field on the question of whether or not death by hanging or firing squad amounts to torture or to inhuman or degrading treatment. I cannot.
“This is simply because the court cannot appropriately rely on its own evidence. On any issue of facts, the court must take from witnesses from which it may make inferences.
“Clearly from the affidavits sworn to by medical experts, the overwhelming evidence before the court is that death by hanging or firing squad amounts to torture and inhuman or degrading treatment.
“It is therefore my conclusion that death by hanging or by firing squad amounts to a violation of the condemned’s right to dignity of the human person and inhuman and degrading treatment. It is consequently unconstitutional being violative of Section 34(1)(a) of the Constitution of the Federal Republic of Nigeria, 1999. Section 367 of the Criminal Procedure Law of Lagos State and other Law which provides for hanging the condemned by the neck till he is dead is accordingly declared unconstitutional. Section 1(3) of the Robbery and Firearms Act in so far as it seeks to be implemented by the respondent is also declared unconstitutional and void.
“In the final result of the originating summons prayer (a) on the originating summons is refused. Prayer (b) is refused. Prayer (c) is granted. The penalty of death by hanging or firing squad is declared unconstitutional and the respondent is perpetually restrained from inflicting the penalty of death on the applicants by hanging or by firing squad,” Olokoba said.
Reacting to the judgment by the court, Quakers said it has revolutionised the administration of criminal justice as it is a departure from conservatism.
The lawyer said death by hanging or firing squad strikes at our humanity and questions our dignity as human beings.
He noted that until the judgment is reversed or set aside by an appellate court, it remains binding and any court that pronounces death by hanging or firing squad can be challenged based on the judgment by Olokoba.
Calling for the review of the Criminal Code Laws, Quakers observed that there has been some unwritten moratorium on the execution of death sentence since the unveiling of the democratic umbrella, as no governor has signed a death warrant for the execution of a condemned person.
“There is a need for us to work on the administration of criminal justice. Lagos is at the forefront of this. Beyond custodial sentencing, there should be alternative sentencing such as community service.
“I am happy that the learned Judge considered constitutional provisions side by side expert evidence before arriving at the judgment. This case has no doubt improved our jurisprudence and it is hoped that more of such cases will be taken to uphold the fundamental rights of the Nigerian people.
“My friends and colleagues initially did not see the possibility of any court in Nigeria upholding my view point on the mode of execution. So, to convince the judge, I had to embark on an extensive research in this area and I was strengthened when I came across a Malawian case of Kafatayane vs Attorney General of Malawi where the court was called on to interpret the constitutional provision of Malawi which, on all fours, is similar in terms of its fundamental rights sections with that in our constitution. The court in Malawi held that it was unconstitutional and an infraction on the right to dignity of the human person,” he said.
