Monday, 5th June 2023

Non-execution of condemned criminals: The cruelty, injustice and way forward

By Chijioke Iremeka
13 May 2023   |   4:11 am
hough some countries have cancelled death penalty as punishment for some highly criminal offences, Nigeria still retains it...

Electric chair for execution of condemned criminals

Though some countries have cancelled death penalty as punishment for some highly criminal offences, Nigeria still retains it, with the appropriate courts sentencing people to death for heinous crimes, but state governors shirk their responsibility of signing the death warrants to allow the punishment to be meted out to offenders. CHIJIOKE IREMEKA writes that the refusal of the state governors to sign death warrants, when death penalty has not been expunged from the nation’s laws, is being perceived as blocking those who were wronged from getting justice, thereby encouraging criminality and brewing anger among citizens and against government and the society.

Non-signing of death warrants for execution of condemned criminals or criminals on death row by state governors is being perceived as a great disservice to the country’s justice system and cruelty to the affected criminals who live every day of their lives, after being sentenced to death, with trauma of not knowing the hour of their death. This has plunged a lot of them into a state of mental disequilibrium.

Some stakeholders across the country are of the opinion that non-execution of such inmates has further contributed to congestion of the Correctional Centres and worsened the country’s security challenges, especially as prisoners meant to be legally sent to the gallows are being released into the society without any form of reintegration exercise by the governors and others through the use their prerogative of mercy.

The stakeholders, including Vice President Yemi Osinbajo (SAN), Minister of Interior, Mr. Rauf Aregbesola, the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) and former President Goodluck Jonathan had, in the past, called for the signing of death warrants of condemned inmates to decongest the prisons and give justice to the people whose loved ones had been maimed by the condemned criminals.

As some stakeholders argue that non-execution of the condemned inmates is cruelty and a life torture for the prisoners in death row who wait endlessly for their death, others said their continued stay at the correctional centres has increased government’s expenditure.

The Guardian learnt that Nigeria spends N7.6 billion annually on awaiting trial inmates alone, while data from the authorities of the correctional centres revealed that about N450 is spent daily on each inmate, amounting to N21.3 million daily. This is the burden the country has to shoulder to maintain operations of the overcrowded correctional facilities across the country, including the money spent on the inmates on death row.

Also, as consequence of non-execution of condemned criminals, the country has experienced a number of jailbreaks in the last few years, leading to escape of many inmates who are currently terrorising the country, as the police reports have shown. The jailbreaks that cut across various states in different regions of the country are attributed partly to overstretching the carrying capacity of the correctional facilities in the country. 

Aregbesola had in 2021, at the inauguration of the Osun State Command headquarters of the Nigeria Correctional Service in Osogbo, bemoaned the refusal by state governors to sign death warrants in their jurisdictions, saying that Nigeria’s death row inmate population, which then stood at 3, 008, representing 4.3 per cent of the total 68,747 prison population, was contributing to prison congestion.

He urged the governors to rise up to the dictates of their office, which empowers them to approve execution of condemned criminals to rid the society of unwanted elements and threat to life and property.

“In cases where appeals have been exhausted and the convicts are not mounting any challenge to their conviction, the state should go ahead to do the needful and bring closure to their cases, as well as set some others free on compassionate grounds, especially those who have grown old on account of the long stay in custody, those who are terminally ill and those who have been reformed and demonstrated exceptionally good behaviour. They can also commute others’ sentences to life or a specific term in jail,” the minister added.

A human rights activist and Senior Advocate of Nigeria (SAN), Ebun-Olu Adegboruwa, had severally urged the governors to exercise their statutory responsibility of signing the warrant for those who have been convicted by the court and do not have any pending appeal. He lamented that most governors are reluctant to sign for one reason or the other.

According to Adegboruwa, the non-signing of death warrant by the governors and non-execution of inmates in death row constitute torture.

“It is torture for one to be expecting to die every day and it lingers for 10 or 15 years. The solution to this is that it would be necessary to consider death row inmates who have been there for a particular time to be commuted to life imprisonment.

“The Supreme Court has said if one is kept on death row for too long, it constitutes a torture. The government should set a time limit so anyone waiting to be executed should be commuted to life imprisonment or a lesser punishment instead of just crowding the prisons in that regard,” the senior lawyer said.

Another senior advocate, Lawal Pedro, noted that a death penalty is not unconstitutional in Nigeria, the call on the governors to sign death warrants for a defendant sentenced to death by a court of law is merely requesting them to perform their duty under the law.

However, he noted that the governors understandably have been reluctant in performing that duty on grounds of morality and religious belief.

“The lengthy stay on death row by condemned inmates, and being under the threat of imminent execution perpetually, is cruel, inhuman, and degrading. In my view, the condemned prisoners have no remedy against their death sentence or delay in their execution. It is the Attorneys General in the federation that should come together to advise the government for the removal of the death penalty from our statute books and converting the same to terms of imprisonment/life imprisonment. If there is no joint decision to that effect, a state government can abolish the death penalty in its state without recourse to the Federal Government,” he said.

Historically, capital punishment for heinous crimes has existed all through the chronicle of mankind long before the creation of court systems. As civilisation progressed, different societies incorporated capital punishment into their legal codes. 

The Nigerian customary laws traditionally recognise the death penalty as an appropriate way of eliminating offenders who were dangerous to the community. At the time, offences warranting death penalty included murder, witchcraft, adultery and profaning of the gods.

With the advent of British rule and the consequent abolition of customary criminal and penal codes, capital crimes were reduced to include murder, treachery, treason and participating in a trial resulting in death of the innocent.  

The military government in power from 1966 to 1979 added a number of crimes punishable by death. These include armed robbery, setting fire to public buildings, ships or aircraft; dealing in Indian hemp, sabotaging the production and distribution of petroleum products, importing and exporting mineral oil without authority, dealing with cocaine and counterfeiting bank notes or coins.

Today, Nigerian federal law prescribes death penalty only for treason, homicide and armed robbery. Particularly, under Nigerian criminal law, various offences are punishable by death across the federation, including murder, treason, and treachery, conspiracy to commit treason, directing and controlling or presiding at an unlawful trial by ordeal, which results in death.  

More recently, kidnapping has joined the mix as a capital crime in Abia, Imo and Akwa Ibom states. Again, the introduction of Sharia-based criminal law in some states in Northern Nigeria has also widened the number of capital offences to include adultery, sodomy, lesbianism and rape.

Also, offence of terrorism has been given a status in Nigeria as a capital offence in the new Terrorism (Prevention) Act 2011 (Amendment) Bill 2012, which was passed by the National Assembly.
Section 1(2) of the House’s version states that “a person or body who knowingly in or outside Nigeria directly or indirectly willingly does, attempts or threatens any act of terrorism…commits an offence under this Act and is liable on conviction to a maximum of death sentence.”

It thus appears that as the criminals engage in acts which are also criminalised, the list of capital offences in Nigeria and other places continued to be elongated rather than shortened, especially as the state governors backed by law to sign the death warrants are not doing so.

A human rights lawyer, Femi Falana (SAN) once revealed that since the return of democratic government in 1999, only a few governors have signed death warrants for execution of death row inmates in the country.

He noted that such inmates, including those that have been condemned to death by the Supreme Court like the leader of the Christian Praying Assembly, Reverend King, continue to languish in confinement for years, waiting to be executed but for non signing of their warrants by the governors due to humanitarian, political, religious, emotional and cultural sentiments. Yet the governors lack the will to commute the provision to life imprisonment.

Statistics as of December 12, 2022 showed that a total of 3,166 inmates were on death row in the country with only 62 of the population, representing 1.9 per cent, being women.

The Controller-General of the Nigeria Correctional Service (NCoS), CGC Haliru Nababa, who gave the information at a media parley in Abuja on December 15, 2022, said that as of the time, there were 74, 824 inmates in the custodial centres.

The Avocat Sans Frontiere France (ASFF), popularly referred to as Lawyers Without Borders, had in a study in 2018 disclosed that 2, 285 people were on death row at the end of 2017 in Nigeria, which was a significant increase from 1, 979 in 2016 and 1, 677 in 2015. The group said that Nigeria had 2, 359 death row inmates in 2017, which grew to 3, 008 in 2021.

Amnesty International had also said that Nigeria had the highest death-row population in sub-Saharan Africa. Records show that between 1999 and 2007 during the administration of President Olusegun Obasanjo, no inmate on death row was executed. 

The rights group reported that between 2007 and 2017, there were seven executions in the country with the last one taking place in 2016, and that the 621 death sentences the country imposed in 2017 accounted for 71 per cent of all confirmed death sentences ordered in sub-Saharan Africa that year.

On why state governors are hesitant to sign death warrant, Kano State Governor Abdullahi Ganduje, who has freed over 1, 000 inmates, including criminals on the death row, said governors were afraid because they would not want to order the execution and later discover that the person didn’t deserve to die.

He recalled an incident involving a former governor of Edo State, Adams Oshiomhole, saying: “At one time, Oshiomhole signed the warrant and somebody was executed. Later on, it was discovered that he was not supposed to have been executed. The judgement was faulty.” Ganduje said that the incident made the governors to become more careful about death warrants.

“From time to time, we sign death warrant, but we think that the issue should be looked at constitutionally to find out what measures can be put in place so that people are not killed and later to discover that they weren’t supposed to have been killed, and you cannot retrieve the life of any creature,” he quipped.

The Public Relations Officer (PRO), Kano Correctional Centre, Musbahu Nassarawa, in a statement said that at a point, Ganduje, who did not want to consent to the killing of any inmate, pardoned and released 12 of them on death row in Kano State, comprising four females with long-term sentences, based on their good behaviour and industry as recommended by the correctional centre’s authorities. According to the statement, Ganduje also commuted six death sentences to life imprisonment and pardoned some inmates that had spent 25 years awaiting execution.

Anti-death penalty protesters

The Chairman of the Prerogative of Mercy in Kano State, Abdullahi Rano thanked the governor for releasing the inmates with good behaviour on the recommendation of the Advisory Council on Prerogative of Mercy, even as the Controller of the Correctional Centre, Sulaiman Inuwa, urged the freed inmates to stay away from any act that could bring them back to the facility.

Apart from the fear of ratifying the execution of condemned inmates, The Guardian learnt that there is already a suit against capital punishment in the country. It was gathered that the Executive Director of the Legal Defence Assistance Programme (LEDA), Chino Obiagwu (SAN), filed two different cases pending in courts in Abuja and Lagos seeking to stop execution of death row inmates.

It was learnt that the LEDAP suit before a Federal High Court in Abuja was brought by Mrs. Nnenna Obi and Solomon Adekunle on behalf of all prisoners on death row in Nigeria for the enforcement of their fundamental rights by seeking to stop future implementation of death penalty. There are other cases at the ECOWAS Court of Justice challenging the implementation of death penalty in Nigeria.

In 2004, the Federal Government set up a national study group on the abolition of death penalty, headed by Prof. Yemisi Bamgbose (SAN), while the current Attorney-General of Ekiti State, Wale Fapohunda, was the secretary. 

The group traversed the entire country and arrived at apt conclusions in their report, including the recommendation to the Federal Government to introduce a national moratorium on sentencing and execution of death penalty, while the state governments review their death penalty regimes. 

The Guardian learnt that the report gave the main reason for the recommendation thus: “A system that cannot give justice should not take life. As long as convictions are based on confessions which are denied, trials going on for five years or more, where witnesses would have forgotten facts in the case, sometimes we have missing case files, we cannot claim that we have had a fair judgement and a perfect system. Life is sacred while death penalty is too absolute.

“We look at issues like the irrevocability of execution. Once a death warrant has been executed and we have fresh evidence to show that the prisoner was actually innocent, there is no amount of compensation that would ever be sufficient. These are the issues we want the president to obviate his mind to.

“Yes, sometimes they argue that they have gone through the trial process, but we can never erase the possibility of human error; it is always there even in advanced countries. There was a case in Colorado in the USA where a man was found to be innocent, 72 years after his execution.”

Also, the Federal Government, during the administration of former President Goodluck Jonathan urged state governors to sign warrants of criminals condemned to death, asking the governors to realise that the job they were elected to do had both sweet and ugly parts.

Jonathan, while speaking at the Fathers’ Day Sunday service organised by the Aso Villa Chapel in June, 2013 urged the governors to carry out all their responsibilities according to the dictates of the law, adding that discipline can be in various forms; in the states, it could be admonition, a magistrate can just admonish and allow an offender to go.

“From admonition to various forms of punishment, it could be imprisonment and the extreme is capital punishment. In the case of capital punishment, the state governors will sign. Even governors sometimes find it difficult to sign and I have been telling the governors that they must sign because that is the law. The work we are doing has a very sweet part and a very ugly part and we must perform both. No matter how painful it is, it is part of their responsibilities,” Jonathan declared.

In an interview with The Point, a former Nigerian Ambassador to the Philippines, Yemi Farounbi, said: “Generally, governors are very reluctant and wary to sign the death warrants, even in the case of kingpin Reverend King. For religious, personal, ethnic and emotional issues, most Nigerian governors are unwilling to accept the final authority to terminate a life.

“Finally, some governors are afraid to commit an error of signing prematurely. There was such a mistake when the Attorney General of Old Oyo State advised the then civilian governor to sign the warrant of execution of an inmate, only to discover after the execution that the inmate had not completed the judicial appeal process. This error has put more restraint on the governors to be careful.

“Death penalty is worse than life imprisonment. Under life imprisonment, the prisoner knows that he will live until the time of natural death. Under the death penalty, the inmates are under the psychological pressure of not knowing when death will come. They live each day as if it’s the last; the uncertainty breaks them, makes them nervous and most times, they become a wreck.

“Some people argue that the inmates deserve such psychological pressure in lieu of prompt execution. Some argue that given the unwillingness of governors to sign death warrants, perhaps Nigeria should join the growing list of countries that have abolished the death penalty. Some others suggest that perhaps Nigeria should narrow down the number of offences that earn death sentences. It’s an open, ongoing debate.

“Nevertheless, the law allows the Chief Judge of a state to visit the Correctional Centres and convert the death penalty of those who have been on the death row for over 10 years to life imprisonment. And in the execution of the Prerogative of Mercy, the governor or the president can grant such inmates pardon,” he explained.

To a human rights researcher and anti-death penalty advocate, Damian Ugwu, the use of the death penalty is no longer fashionable. He said that two-thirds of countries in the world had either abolished death penalty outright or are no longer using it in practice.

“Recently, Equatorial Guinea, Central African Republic abolished the death penalty, so do over 20 other countries in Africa, including Sierra Leone (2021), Chad (2020), and Guinea (2017). Europe remains virtually free of the death penalty. The United States is slowly turning against capital punishment. Nigeria cannot be left behind, but to achieve this, Section 33 of the Constitution which forms the operational ground for the application of the death penalty will have to be amended,” he said.

A shattered heart, Mr. Agozie Egbu, whose younger brother got involved in a fight that led to his death, does not want to hear that a criminal on death row is released to continue his vile deeds.

“That will be tantamount to a denial or rape of justice well deserved. Freeing condemned criminals is denial of justice to others. There is nothing more devastating and agonising than seeing the killer (s) of one’s relative (s) walk the street of Nigeria freely having been set free by the government and due to non- signing of death warrants of the criminals on death row.

“Imagine your younger sibling (s) who could have been living, was killed and arrest made. After the killer had been convicted to death, years after, you still find him on the street of Nigeria moving freely. There is no doubt that life of many people would be at risk beyond the psychological pain and stress you go through for such level of injustice.

“You picture your younger one in the grave begging for justice, yet the killer has been set free. Setting free condemned criminals who are dangerous to the society has become a great problem in the country and if Nigeria doesn’t want continuation of capital punishment, it should replace it with life imprisonment rather than releasing hardened criminals to our immediate society,” Egbu said.