Encore un moment, monsieur le bourreau.
Just a moment, executioner; just a small moment.
Madame du Barry, at the guillotine, 1793
Nigerians woke up two weeks ago to learn that four death-row prisoners in Benin City, who were convicted some 15 years ago but had not exhausted the appeal process, had been hanged
The foursome had been convicted 15 years ago, and had not yet exhausted the appeal process
The executions drew for the most part strong condemnation at home and abroad, and rekindled the on-again, off-again national debate on the propriety of capital punishment. They also raised searching questions about the ideological orientation of Edo State Governor, Comrade Adams Oshiomhole.
It was troubling enough that this stalwart of the progressive community had signed off on the grisly proceedings in respect of two of the convicts ;it was unseemly, his colleagues-now-turned critics charged, that he defended his action so vigorously in the face of the outrage it generated.
The condemned prisoners had committed crimes of the foulest kind; they had subjected their innocent victims to unspeakable brutality and then killed them in the most horrid manner conceivable. They had been tried, found guilty, and sentenced to death by courts of competent jurisdiction that afforded them at every stage the due process of law they had so wantonly and callously denied their victims.And what is more, the authorities said, the executions were carried out in accordance with the laws of Nigeria.
In short, they fully deserved what they got.
It would be unfeeling to dismiss this line of reasoning out of hand. Lives had been taken, careers and prospects and relationships had been savagely abridged. These heinous crimes, it would seem to follow, should be visited with appropriate retribution.
But that is at bottom the Mosaic law of an eye for an eye. To achieve the grisly equivalence enjoined by that code, the state would have to do to torturers and murderers and rapists precisely what they did to their victims. In practice, no state does that. So, retributive justice cannot be a goal of the modern state, which is enjoined by municipal and international statutes to act humanely and eschew cruel laws.
Nor does it help matters to insist that an act is justified or even proper just because it is sanctioned by law. That is the doctrine of rule by law, the doctrine the apartheid authorities in South Africa, and before them, Nazi Germany, invoked to justify their barbarous rule. It has little in common with the rule of law, which is premised on just laws justly administered.
It is the contention of this column that capital punishment is inherently unjust; that it is inequitable, and that it serves no useful purpose
Most homicides do not result from cold, brutal calculation. They result, criminologists say, from confusion, anger, stress and panic — in short, from a loss of capacity for rational judgment. The death penalty merely compounds the tragedy that flows from such lapses of judgment, to which even the most sober persons are susceptible.
Even those murders planned to the most chilling detail and carried out with the utmost deliberation, psychiatrists maintain, result basically from an abnormal condition that may be biological or environmental or both.
So that, when society executes a capital offender, it is at once condemning the offender for conduct that may have been biologically determined, and absolving itself of any responsibility in creating or sustaining the environmental forces that shaped the offender
Capital punishment is not the blunt instrument of justice it is claimed to be. It is stacked against the poor and minorities and members of the underclass who, lacking the resources to hire competent attorneys and forensic experts, are more likely than better-endowed persons to be convicted. To the poor and disconnected, “equality before the law” is a myth.
The support for capital punishment rests principally on the claim that it serves as a deterrent. Knowing that they stand to pay with their own lives if found guilty of murder, only those possessed by a death wish would kill. Without such a deterrent, it is claimed, the homicide rate would escalate.
If this claim holds true, the homicide rates in the major industrial countries that have abolished capital punishment should have risen sharply. So should the volume of capital crimes in those states that do not practise capital punishment, or employ it sparingly. But this has not been the case.
To take an American example, the homicide rate in Pennsylvania has remained roughly 6 in 100,000, despite the fact that Pennsylvania has carried out no execution since 1976. On the other hand, from 1977 to 1995, the homicide rate in Texas has stood at 13.3 per 100,000. Nor has the fervor with which Texas administered the death penalty under Gov. George W. Bush and his successor, Dick Perry, led to a significant decline in the homicide rate.
The death penalty, then, is no deterrent. It deters only those who have been executed, for they will never kill again. But the same end can be secured with far less damage to the social psyche by keeping convicted killers in jail for life, without the possibility of parole.
Perhaps the strongest argument against capital punishment is its finality. Once carried out, it cannot be reversed even if it turns out, as happens not infrequently, that the executed person was innocent, or that guilt was not established beyond a reasonable doubt.
About a decade ago, it came to light that 13 of 18 persons on death row in Illinois had been convicted wrongly. This moved the state’s authorities to place a moratorium on executions. That moratorium remains in place to this day.
No less instructive is the conclusion of a massive study of capital convictions and appeals in the United States between 1975 and 1995, conducted by James Liebman, of Columbia University Law School. The study covered 5,500 judicial decisions.
In 68 percent of 4,576 cases they reviewed, the appellate courts found “serious, reversible error.” This means that roughly 7 of every 10 convictions did not pass close judicial scrutiny. “American capital sentences,” Liebman concluded, “are so persistently and systematically fraught with error that it seriously undermines their reliability.”
Liebman’s study and the discoveries in Illinois that some innocent persons had been languishing on death row ought to move advocates of the death penalty to recognise, at the very least, that even the most scrupulous judicial proceeding may be tainted by errors resulting perhaps not so much from the perversity of officials as from human fallibility.
The possibility that capital punishment may be administered in error — that possibility alone, however remote — ought to weigh decisively on the minds of supporters of capital punishment.
Those who kill must be held to account. Life imprisonment, without the possibility of parole, sufficiently serves that purpose. When a society puts them to death by way of retribution, it sinks to their level of pathology instead of rising splendidly above it, as a growing number of countries have been doing.
Of the 54 countries in Africa, 18 have abolished capital punishment, according to data supplied by the United Nations, among them South Africa, Namibia, Angola, Mozambique, Gabon, and, in Nigeria’s neighbourhood, Togo, Senegal, Benin, Cape Verde, Guinea-Bissau, Côte d’Ivoire, and São Tomé and Principe.
Among those countries that still have capital punishment on their statute books, none has carried out an execution for 10 years.
It is a dent on Nigeria’s international image and its claim to continental leadership that it is not numbered among the countries that have abolished capital punishment outright or placed a moratorium on it.
Capital punishment is inconsistent with the spirit of the Fundamental Objectives and Directive Principles of the Nigerian constitution, and with the African Charter on Human and Peoples Rights, to which Nigeria is a signatory.
It should have no place in the Constitution now under review.
