The issue of the death penalty has continued to stimulate emotions around the world, particularly in Nigeria. This is because while some countries have abolished the death sentence for all crimes, Nigeria is one of the countries that still retain the use of death sentence as punishment for grievous crimes.

Under Nigerian Criminal Law, various offences are punishable by death. They include kidnapping, murder, sedition, conspiracy to treason, treason, treachery, fabricating false evidence leading to the conviction to death of an innocent person, aiding a child or a ‘lunatic’ to commit suicide, armed robbery, among others. Also, section 33 of the 1999 Constitution provides for capital punishment in certain cases, which must be executed upon sentence of a court of competent jurisdiction.

The introduction of Sharia-based criminal law in some states in Northern part of Nigeria has widened the number of capital offences to include adultery, sodomy, lesbianism and rape.

Many death row inmates including those that have been condemned to death by High Court, Appeal Court and the Supreme Court have continued to languish in confinement for years, waiting to be executed due to the fact that governors since 2016 have not signed their execution warrant. The last time a governor signed an execution warrant was in 2012 by former governor of Edo state, Adams Oshiomhole. He signed the death warrant of some prisoners who were consequently executed by hanging.

Before then, former governor of Kano State, Ibrahim Shekarau emerged the first governor to have signed the death warrant of about seven criminals in 2006.

In October 2014, former Delta State Governor, Emmanuel Uduaghan pardoned three inmates who were on death row following the recommendations by the State Advisory Council on the Prerogative of Mercy.

Meanwhile, former minister of Interior, Rauf Aregbeshola, who was once a governor in Osun State, was severely criticised by abolitionists in 2021 when he recommended the execution of death row inmates as a form of decongesting the correctional facilities, which are over-populated by awaiting trial inmates. Critics wondered why he didn’t sign death warrants as a governor and why he was suggesting execution when custodial facilities are in fact congested with pretrial inmates and not death row inmates.

At the end of 2021, Amnesty International reported that there were about 28,670 death row inmates all over the world. As of December 2022, the number decreased to 1,325 including 61 women. As at April 20, 2023, the Nigerian Correctional Service reported that the number of inmates on death row has risen to 3,298.

Currently, the argument about whether to abolish or retain capital punishment has divided stakeholders in Nigeria. Many senior lawyers and human rights institutions suggest that it should be abolished, while some insist that it should be retained and even expanded.

Speaking on the issue, the Executive Director of Access to Justice, Joseph Otteh, a lawyer, said the group is strongly opposed to the infliction of the death penalty, particularly given the vulnerabilities and frailties of Nigeria’s judicial system.

He said: “It’s been said that a state that must take life must first give justice. Nigeria’s justice ecosystem, by which we mean the entire spectrum of the criminal justice process – from arrest to conviction – is fraught with treacherous weaknesses, and cannot be trusted to offer consistently fair/reliable results that can reasonably rule out life-threatening errors.

“Implementing the death penalty will irredeemably jeopardise innocent persons who are themselves victims of a justice system heavily weighted against the poor and powerless.

“One does not have to take a moral position on the death penalty before being opposed to it. The moral horror of executing a person who is innocent of a crime is far weightier and more abhorrent than any equity the death penalty, as a punishment, may lay claim to. Once executed, the death penalty is irreversible and it’s not possible to remedy any injustices that have occurred to anyone executed for a crime.”

Otteh quoted Stewart J in the notable American case of Furman v Georgia: “The penalty of death differs from all other forms of criminal punishment, not in degree but in kind. It is unique in its total irrevocability. It is unique in its rejection of rehabilitation of the convict as a basic purpose of criminal justice. And it is unique, finally, in its absolute renunciation of all that is embodied in our concept of humanity.”

He noted that criminologists told the world that the case or proposition that the death penalty is an effective panacea or deterrent for crime is contestable, adding that there is no clear, verifiable relation between that ultimate punishment and crime emerging from available data.

He explained that the death penalty is also increasingly losing its appeal internationally, because about 108 countries have abolished it, with reasons including the view that it has failed to achieve its intended objectives.

Similarly, the National Coordinator of the Legal Defence and Assistance Project (LEDAP), Mr. Chino Obiagwu (SAN) said the death penalty has no deterrent effect on potential offenders, arguing that criminals don’t think about the severity of punishment when they set out to plan and execute crime. According to him, Britain abolished the death penalty because of the high risk of mistaken conviction.

His words: “What they think about is the possibility of apprehension. So that is why despite harsh punishment for armed robbery since 1970, robbery has remained in the increase.

“Death penalty is foreign to African Criminal Laws. It was introduced into our criminal laws by the colonial government but Britain has many decades ago abolished it because of the high risk of mistaken conviction and execution. Nearly every common law court has found that death penalty violates the right against torture and inhuman treatment because of its mode of execution. It also does not bring closure to victims and their families and adds no justice value to society. On the contrary, where the State takes life forcibly, it sends messages of bloodshed to the society.”

Executive Director, Prisoners’ Rehabilitation and Welfare Action (PRAWA) and member of the United Nations Sub-Committee on Prevention of Torture (UN-SPT), Dr. Uju Agomoh, also condemned the use of death penalty as capital punishment.

“There are several contextual issues that may make it unconscionable for Nigeria to continue to implement the death penalty. Continuous use of death penalty is a negation of the several safeguards set by different human rights instruments to guard against having an innocent person pay the ultimate price for an offence he or she may not have committed.

“It is still in doubt, especially given the fact that access to justice for the poor in Nigeria remains a huge struggle till date and the sad fact that torture remains hugely a source of procuring evidence by law enforcement officers.

“It will amount to injustice to execute an innocent person based on evidence procured through torture,” she stressed.

Agomoh noted that the death penalty is not the ultimate solution to the quest for a crime-free society.

Her words: “In spite of the death penalty as retribution for capital offences, these crimes keep increasing by the day. Offenders seem not to be deterred. Death penalty is rather counterproductive in terms of negating the principles of dignity and respect of every human being and sanctity of human life as captured in several human rights instruments ratified by Nigeria. Death sentences, unfortunately, seem to reduce the state to the level of perpetrators of such serious crimes.”

He argued that the death penalty in the Nigerian Criminal Justice system is part of the effect of colonialism. Nigeria, she said, inherited the British common laws.

“Britain influenced the colonies more than any other country and has a long history of punishment by death. About 450 BC, the death penalty was often enforced by throwing the condemned into a quagmire. By the 10th Century, hanging from gallows was the most frequent execution method.

“Death by hanging is a common feature of the Nigerian Criminal Justice System. Death penalty has been abolished in Britain for several years now. In fact, abolition of the death penalty is one of the key requirements for a country to be accepted as a member of the European Union.

“The UN currently has a moratorium on execution of death sentences. Death sentences portray a finality. How can you compensate for a wrongly passed sentence of death penalty? Can you bring back the life that was wrongfully taken? Some persons that were believed to be responsible for heinous crimes and sentenced to death were found to be innocent of the offences they were convicted for through DNA tests,” Agomoh revealed.

Also, the Executive Director of Prison Fellowship Nigeria (PFN), Benson Iwuagwu opposed the use of death penalty as a capital punishment, saying in spite of being the extreme of retributive and deterrent philosophies of justice, it has not deterred crime.

“Even where people have been tied to the stake for execution by firing squad, criminals operated, picking pockets and stealing cars. Article 6(6) of the International Covenant on Civil and Political Rights, to which Nigeria is a signatory, calls upon State parties to progressively restrict the use of capital punishment with abolition as the ultimate goal.

“The purpose of punishment as suggested by Cesare Beccaria is none other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing the same. Therefore, punishments and the method of inflicting them must be chosen such that, in keeping with proportionality, they will make the most efficacious and lasting impression on the minds of men with the least torment to the body of the condemned,” he said.

Iwuagwu added that the death penalty in spite of being dehumanising and degrading and painful, has not deterred criminals.

“The awaiting trial syndrome is rather an indictment of our criminal justice system that has remained fixated on retribution and deterrence as criminal jurisprudence. Our socio-economic and political policies and practice contribute more to the awaiting trial inmates overcrowding our police detention and custodial centres,” he pointed out.

However, civil rights campaigner, Chief Malcolm Omirhobo, thinks differently. He recommended that the death penalty be retained.

He argued: “I subscribe to death penalty. I am one of its proponents in Nigeria because of the current level of our development and the situation of our country. If well implemented, it will go a long way to shape us up like it did to other democracies of the world and even China where bribery and corruption attract the death penalty. I believe that such a harsh penalty is needed for criminals who have committed the worst crimes in Nigeria, as the punishment will deter crime.

“In the future, when we must have advanced technologically, we may consider its abolition because law is not static but dynamic. The British colonial masters who saw acts such as marrying a Jew, not confessing to a crime, stealing, cutting down a tree, and robbing a rabbit as offences punishable by death, after going through several reforms, abolished death penalty in 1998 for all crimes, after practising it for centuries.”

He argued that death penalty is legal throughout America at the federal level and in 27 states, adding that death penalty has gone through a lot of reforms and is still evolving in that country. According to him, it is unbelievable that in the past, acts such as striking one’s mother or father or denying the “true God” were punishable by death in America.

The lawyer suggested that death penalty should rather be expanded to include offences such as bribery, corruption and electoral malpractices like stealing of the people’s mandate, rigging of elections, snatching of ballot boxes or materials and destruction of electoral boxes or materials.

“Before the advent of colonial government in Nigeria, our customary laws traditionally recognised the death penalty as an appropriate way of eliminating offenders who were dangerous to the community. Then, conducts such as murder, witchcraft, adultery and profane of the gods were considered as offences and attracted death penalty.

“Our colonial masters have helped us to codify offences that attract death penalty in our Criminal Code Act and Penal Code Act, removing all offences like witchcraft, adultery and profaning of the gods and other acts considered to be repugnant to natural justice, equity and good conscience.

“Sodomy, homosexuality, blasphemy, adultery, incest considered as an offence punishable by death under the Shariah law of 12 Northern States of Nigeria is unlawful and unconstitutional because criminal jurisdiction is outside the scope of shariah law in Nigeria, which is only limited to private and family life,” he explained.

Omirhobo, therefore, argued that because the death penalty has not been properly implemented in Nigeria, that is why abolitionists think that it has not served as a deterrent for criminals. If it is properly implemented and expanded, he insisted, crime rate would reduce drastically.