Prison decongestion, the politics and hypocrisy of death penalty in Nigeria

The Nigerian Correctional Service (NCS) has always chorused the frustration of custodial congestion. The Service, at every opportunity tells whoever cares to listen that its facilities are over-crowded with pre-trial detainees. But recently, the minister of interior, Rauf Aregbesola raised a fresh angle to the debate. According to him, death row inmates add to the congestion. As a result, he suggested to governors to begin to sign death warrants.
 
Aregbesola explained that out of 68,747 inmates currently housed in correctional facilities nationwide, 50, 992 of them are awaiting trial, while 17,755 have been convicted and serving sentences.
 
He said: “There are presently 3,008 condemned criminals waiting for their date with the executioners in our meagre custodial facilities. This consists of 2,952 males and 56 females.
 

This suggestion by the minister has caused a stir with many civil society groups blatantly rejecting the call and renewing the agitation for abolition of death penalty in Nigeria.  
 
Reacting to why governors are not interested in signing death warrants, Programme Manager, Legal Defence Assistance Project (LEDAP), Mrs. Pamela Okoroigwe, said governors are reluctant to sign death warrant or grant moratorium or to support abolition of death penalty because death penalty has been provided for in the statute books as a mandatory punishment for capital offences.
 
“Even the Supreme Court has in the locus classicus of Onuoha Kalu vs The State and Azeez Okoro vs The State (1998) held that death penalty is not unconstitutional in Nigeria. The Governors don’t want to be seen as persons challenging the grund norm.
  
“Nigeria is a very religious country. They don’t want to sign death warrants because they believe death penalty to be morally and religiously wrong. Some of them believe that life is sacred and since the state didn’t create life, why should they take life? Also, they understand that the possibility of executing an innocent person is very high, given the terrible state of our criminal justice system,” Okoroigwe stated. 
 
According to her, some of the state Governors are aware of LEDAP’s cases challenging the constitutionality of death penalty of all inmates on death row in Nigeria, like in (Godwin Pius & 2 Ors. v Governor of Abia State & 35 Ors (CA/L/797M/12) and Nnenna Obi & Anor v Comptroller General of Prison Services (FHC/ABJ/CS/1644/2020). One of the reliefs sought in the suits, she said, is an order commuting their sentences of death and injunction stopping any execution until the suit is determined.  

“The Supreme Court in the case of Nasir Bello v Attorney General of Lagos State has held that a prisoner cannot be legally executed, while his case is pending in Court. So, the Governors know that so far as these cases are pending in court and yet to be determined, it will be unlawful to execute these prisoners or any prisoner at all.”
 
She also suggested that the lengthy stay on death row by condemned inmates, and being under the threat of imminent execution perpetually, is cruel, inhuman and degrading. She added that the entire death sentence should be converted to terms of imprisonment/period of life imprisonment. 

Her words: “Under the penal code, life imprisonment is equivalent to 20 years imprisonment. They should be released after they have served the jail term. The prerogative of mercy committee should be able to select some convicts on death row, especially those who have spent over 10 years and recommend them for presidential pardon.
 

So, this means only 26 per cent of the inmates in correctional centres are actual convicts, some of which are serving sentences for felony or simple offence. These are not the people to worry about.

“We should be concerned about the 74 per cent who are awaiting trial in correctional centres. Some of the awaiting trial inmates have spent over 10 years waiting for trial and this is a huge economic burden on our nation’s budget. So it is only reasonable that the Nigerian Government focuses on awaiting trial inmates and ensure they get a fair trial with adequate legal representation as this is not only cost effective but will also go a long way in decongesting the correctional centres nationwide.”

Also, Finbarr Nweke, a lawyer and of the Inclusion and Justice Project (TIP) wondered the way forward for those who have spent over 10 years in death row and the consequences of keeping them on public funds? On why governors are not signing death warrants, Nweke pointed out that cultural and religious factors play major role.

Almost all the governors, he noted, belong to one cultural/religious group or the other. These cultures and religions, he said, have their respective beliefs and one thing common amongst them is the perception and or belief on sanctity of human life.

“It is therefore a common ground that one should not take another’s life and where you do, the blood automatically is on the head of such person. Just like the religious beliefs, traditional religious practitioners also believe that taking human life under whatever circumstances is a sacrilege,” he stated.
 
Interrogating the legal position of death penalty, Nweke argued that under Nigerian criminal laws, death penalty is lawful and indeed constitutional. This, he insisted, explains why governors can’t commute such sentences under the law. According to him, the Supreme Court, which is the apex court, has also made remarkable pronouncement on the issue of death sentences, affirming the legality and constitutionality of such sentences by courts.

“See the case of Onuoha Kalu v the State. Therefore, legally speaking, governors totally lack powers or political will to take such steps. However, giving the general acceptability of the sanctity of human life and also taking cognisance that death sentence has not been able to address or remedy the offence or causes of intention to commit capital offences, it is strongly recommended that our laws be amended to totally remove death penalty from our criminal code and laws.

“Some countries are already taking this lead today. Apart from recommending life imprisonment as alternative to death penalty, it is clear that the issue of prison congestion with its concomitant financial impact on the economy of the country cannot be overemphasized. Accordingly, while we await our parliaments to do the needful by amending our laws, those prisoners under death row, who have served 10 years and above can be made to serve community sentences for a period of time and consequently released from the prison,” he suggested.

President, Centre for Peace and Conflict Management in Africa and Rethink Africa Foundation, Noah Ajare, a lawyer argued that it has been accepted in parts of the world that death penalty does not solve the problem it was set out to address. A cording to him, Centre for Peace and Conflict Management in Africa and Rethink Africa Foundation has over two decades lead the campaign for the abolition of death penalty in Nigeria.

He explained that the Centre currently has over 15 cases pending at the ECOWAS Court, directly relating to death penalty. “And we have won several of such cases. I have strongly advocated that it amount to torture, cruelty, inhuman and degrading treatment to continue to hold the inmates indefinitely under inhuman conditions for years, as we have witnessed in Nigeria.

Ajare argued that statistics as revealed by the Minister clearly showed that the current congestion in Correctional facilities are as a result of the disturbing high number of awaiting trial inmates and not the minority population on death row.

According to him, the call for execution by the Minister comes at a time when many countries across the globe and particularly in Africa continue to move away from using the death penalty due to its injustices. He noted that Sierra Leone became the latest nation to abolish the death penalty after Malawi few days ago.
 
He said: “I wish to state categorically that it amounted to torture when you keep an inmate on death row for 10 years. This was the position of the Supreme Court in the case of Onuoha Kalu v State (1998) 13 NWLR (pt. 583) 531, where it was held that the death penalty is constitutional by virtue of then Section 30 of the 1979 Constitution (now Section 33 of 1999 Constitution). Rather, this application is based on the complaint that the applicants cannot be held continuously after what they have gone through on death row detention, because their continued detention in this circumstances would amount to cruel, inhuman and degrading treatment.”

Ajare explained that he has conducted several cases before the ECOWAS Court where the Court upheld that position and ordered the release of the applicant due to long stay on death row. “This Court has in several cases ordered the immediate release of inmates on death row in Nigeria for violation of their rights. Some of the cases we have personally handled wherein the ECOWAS Court assumed jurisdiction and ordered immediate release of inmate on death row, as well as reparation orders are; a. Gabriel Inyang v Federal Republic of Nigeria (ECW/CCJ/APP03/18. b.  Mimuna Abdulmumimi v Federal Republic of Nigeria (ECW/CCJ/APP/15/13). c. Thankgod Ebo v Federal Republic of Nigeria (EWC/CCJ/APP/14/13) d. The Federal Republic of Nigeria v Abu Dennis & 2 Others (ECW/CCJ/APP/42/18.      
 
“We thus have a plethora of international Court cases wherein it has been held that long delay and detention amounts to torture. I humbly wish to use this opportunity to reiterate that the death penalty is inhumane, obsolete and does not serve as a deterrent. It is used disproportionately against the poor. It is a violation of the right to life and execution is irreversible even where fresh evidence surfaces to exonerate the convicted,” he stressed.

Consequently, Ajare urged that death penalty be abolished as a whole, calling for the amendment of the laws that have provisions on death penalty. He alternatively called for life imprisonment. According to him, a more constructive approach would be a declaration of a state of emergency in Nigeria’s criminal justice system with programmes and initiatives rolled out to tackle the slow pace of justice delivery in Nigeria.

“This should be done with a view to reduce the number of those awaiting trial, many of whom have spent eight years or more. I, therefore, urge the Nigerian government to declare an official moratorium on execution, while it tackles the huge problem created by the awaiting trial population. Those on death row are not the cause of prison congestion,” he declared.

Also speaking on why condemned criminals stay perpetually on death row, the National Coordinator of LEDAP, Chino Obiagwu (SAN) argued that not many officials are emotionally and ethically convinced that all those sentenced to death deserve to die.

According to him, execution of death sentence is irreversible. Most times, the trauma of a Governor signing death warrants, he noted, lasts a lifetime, even unto generations, if it is eventually found that the executed prisoner was innocent of the crimes for which he or she was convicted.

“So, it is a tall emotional order to put the burden on governors. Moreover, death sentence served no useful purpose in crime prevention. In fact, it heightens violent crime as offenders become more brutal and do everything to eliminate possible incriminating evidence. So, we will continue to see lethargy on part of governors signing death warrants.

“Recently, the minister of interior Rauf Aregbesola called for governors to start signing death warrants as a way to decongest prisons, but he was Governor of Osun State for eight years and didn’t sign a single death warrant, despite having over 100 death row prisoners from that state. So that is the hypocrisy of the politics of death penalty in Nigeria. We must tell ourselves the truth and remove death sentence from our statute books,” he insisted.

Obiagwu said the way forward is for the National Assembly to pass a death penalty Moratorium Bill, which will put on hold the use of death penalty for five to 10 years, both sentence and execution. While within this moratorium period, he said, each state House of Assembly takes time to consider whether or not to review their Criminal Code or Penal Code to replace provisions for death sentence with life or long-term imprisonment.

This, he explained, is because most offences that are punishable by death sentence, except treason, are state offences. “These are murder under the Criminal Code applicable in Southern States or homicide punishable by death under the Penal Code applicable in Northern States, armed robbery, kidnapping in some Southern States, adultery and apostasy in some Northern States, and treasonable felony.

“As far back as 2004, a national study group in the use of death penalty recommended such moratorium and review of the laws that carry capital punishment. The report of the group clearly stated that, ‘a system that cannot give should not take life,” the senior lawyer emphasised.

On his part, the Convener, Access to Justice, Mr. Joseph Otteh, said he was not sure why death warrants are not signed by governors, adding that he suspects it could be because of the gravity of what would inexorably follow! According to him, the weight of the responsibility of ordering a killing is a grievous one.

“And I think it really goes to show that life has a sacredness to it quite apart from the character or morality of persons who own the life. And I think that is an important moral argument against the use of the death penalty,” he argued.

Otteh, also a lawyer, expressed the view that the State must itself elevate the sanctity of human life, so that the society can be shaped around the notion that life is worth everything.

“But added to this is the frail justice system that we operate. It is being said that a state that must take life must first give Justice. We don’t currently have the capacity to give dependable and true justice. We still operate a justice system that would prosecute hundreds of members of a persecuted religious organisation for the death of a Soldier and prosecute no Soldier – not one for the killing of hundreds of infants, women and men in the most horrendous fashion,” he remarked.

He declared that Nigeria has corrupt institutions of justice, which on many occasions, exchanged lies for truth. “How can we safely think that we will not irredeemably jeopardise the innocent when we sentence them to death using a justice eco-system heavily weighted against the poor and powerless?,” he asked.