‘Death penalty is inhuman, vengeful, non-deterrent’
Should death penalty be abolished in Nigeria’s legal system? Lawyers say yes. TUNDE OYESINA reports
Some senior lawyers have called for a total abolition of death penalty in Nigeria’s legal system.
The calls came on the heels of the commemoration of the 19th World Day Against Death Penalty on October 10, 2021. The day unifies the global movement on the abolition of death penalty, with civil societies, political leaders and public opinion mobilised to support the universal abolition of capital punishment.
The lawyers’ call for abolition of capital punishment is also a sharp contrast to the recent plea by Minister of Interior, Ogbeni Rauf Aregbesola, urging state governors to sign death warrants of convicts on death row as a way of decongesting prisons.
Reports showed that about 3,008 condemned prisoners, comprising of 2,952 males and 56 females are on death row across the country while about 650 Nigerians are on death row or facing capital charges in China, Pakistan, Malaysia, Indonesia and Vietnam, most of them for drug offences.
Death penalty is described in Black’s Law Dictionary as ‘capital punishment’. It further defines capital punishment as a criminal penalty that involves killing the perpetrator; the sentence of death for a serious crime.
The death penalty provides the legal backing to take the life of a person despite his right to life. It is an exception to the right to life as provided for in Section 33(1) of the Constitution which clearly recognizes death penalty. Notably, death penalty is usually attached to serious crimes.
Nigeria is one of the countries in the world which still retains and administers death penalty in its criminal justice system. In the popular case of Onuoha Kalu v State, the Supreme Court held that death penalty is constitutional in Nigeria.
Nigeria is one of the countries that upholds the use of death sentence as a capital punishment in its penal code, with judges in the High and Sharia Courts sentencing convicted persons to death.
An instance was the recent reported case of judgement passed by an upper Sharia Court in the Hausawa Filin Hockey Area of Kano State sentencing a musician, Yahaya Sharif-Aminu, 22, to death by hanging for blaspheming Prophet Muhammad.
Right to Life
The right to life is recognized as one of the Fundamental Human Rights in Chapter IV of the Nigerian Constitution. It is enshrined in Section 33 of the Constitution.
Although, the right to life is of great importance, it is however not absolute in Nigeria as the law has placed limitations on this right.
The law in Nigeria seeks to balance the interests of all and so, although it respects the right to life, it also places certain limitations on this right to protect public interest and ensure peace and order in the society. It goes to show that no individual can be deprived of his right to life, except through the legally recognized exceptions, one of which is death penalty.
As society progressed, arguments for and against the sustenance or retention of death penalty began and the imposition of the death penalty became a controversial issue.
This has led to the abolition of the death penalty by some developed countries. Nevertheless, death penalty is legal in Nigeria as it is expected to perform a retributive and deterrent function.
In Nigeria, the Constitution devoted a whole Chapter to Fundamental Human Rights, and in that chapter, the right to life ranks first. Section 33(1) of the Constitution specifically provides for the right to life thus: ‘Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria’.
The right to life imposes on individuals and the State, the obligation not to deprive another intentionally of his right to life except within the permissible circumstances by law.
The right to life as provided for and enshrined in Section 33(1) of the Constitution also covers an already convicted person who although sentenced to death, has a pending appeal or review as the case may be. The State must allow the law to run its full course, and must not resort to hasty execution of the convict whose appeal is still pending before the Court of Appeal.
In the meantime, Some senior lawyers have expressed deep concerns over the continuous use of death penalty in the nation’s legal system saying it has not really deterred criminal minds.
Speaking on the issue, the National Coordinator, Legal Defence & Assistance Project (LEDAP), Chino Obiagwu (SAN), said the dangers of continued use of death penalty are so grim to be ignored or avoided for political or religious reasons. He said: “It wrongly teaches that revenge is good justice, when indeed, it promotes sinister circle of violence and bloodshed.
There is always a high likelihood that innocent persons may be sentenced and executed, as indeed many who had been executed in the past had pleaded innocence till they were done with the hangman or the firing squad.
“Death sentence does not deter criminality. Severity or harshness of the punishment is not a solution to crime. What deters potential criminals is not the extreme sentence for the offence, but the possibility of being caught and prosecuted.
This is demonstrated in many states in the South-East and South-South regions that introduced death sentence as punishment for the offence of kidnapping. Despite this severe punishment, the offence was still on the rise, with only a handful of the incidents where the culprits are arrested and prosecuted. When the government kills, it motivates citizens to belittle life and to wrongly pursue revenge as justice.”
In their reaction, a team of lawyers under the aegis of Brotherhood International Lawyers Fellowship with headquarters in Calabar noted that Sections 175 and 212 of the Constitution confers the power called Prerogative of Mercy on the president and state governors to pardon a condemned person or reduce or commute the death sentence to terms of imprisonment.
“The President of Nigeria and State Governors should help exercise this power of Prerogative of Mercy to give hope to prisoners who are running their terms. There are instances where prisoners are wrongly condemned or imprisoned.
These are those we must look again at their plight. Prerogative of Mercy can help them regain their freedom and self esteem”, the group said. On his part, Mr.Tobi Oyesina, noted that there is a changing perception of crime and punishment and as such, serious questions are being raised about the propriety of death penalty.
He said: “Many countries have indeed come to realize that death penalty is inhuman, vengeful, nondeterrent and by its terminal nature, non-reforming. “Death penalty is principally more likely to lead to permanent miscarriage of justice in the circumstances in which it is practiced in Nigeria and all over the world. The development and civilization of a society is reflected in the penal policy of that society.
Law is an instrument of social engineering and is expected to reflect the need of a changing society “Sequel to the foregoing, there is, therefore, no gainsaying the fact that capital punishment has been globally discredited, due to so many problems that are associated with it.
“Several militating factors, like the infraction of the right to life, and freedom from torture, inhuman or degrading treatment, irreversibility of death and judicial error have been highlighted as the albatross of capital punishment.
Hence, the concerted call for its universal abolition. “The criminal justice system as it is now perpetrates agony and injustice on all stakeholders and specifically the death row convicts who are being kept in devastating conditions in the prisons.
The essence of criminal justice would be attained without the government occasioning injustice to its citizens by keeping them behind bars indefinitely.
Bearing in mind that the major methods of execution are not devoid of pain irrespective of the innovation or sophistication, moving forward the discussions should be centred on the abolition of death penalty.
“The imposition of life imprisonment in lieu of death penalty should be given consideration.
The focus should be more of restructuring the Nigeria Criminal Law Policy towards dealing with criminogenic factors that predispose the individual to capital offences rather than concentrating on stringent and painful measures that cost the offender his or her life. The key to deterrence is not mere severe punishment but increasing likelihood that perpetrators of capital offences will be apprehended, investigated and convicted”.
A law lecturer, Dr. Dennis Agbuche, in his paper titled ‘Capital Punishment and the Divine Prerogative of Mercy’, said no person has the right to take the life of another. He quoted Section 33(1) of the Constitution, to support his assertion.
He insisted that capital punishment is outdated, saying Nigeria should emulate modern societies to reform its laws. Another Abuja-based lawyer, Dairo Awe, submitted that; “Death penalty has long outlived its use and functionality if there was ever any use at all.
Statistics available show that death penalty has not served any useful purpose in the mitigation or eradication of violent crimes to which the penalty is attached. “If anything, violent crimes have actually increased.
The retention of death penalty itself is one of the leading causes of mob action, jungle justice, ‘accidental discharge’ and other manners of extra-judicial killings by police and members of the public”.
Another lawyer, Folakemi Kuti, noted that death penalty is no longer fashionable and as such, it must be done away with. Kuti said: “The injustice in our criminal justice system is enough reason why no one should be sentenced to death.
If politicians and the elites who have appropriated the resources of the nation cannot be sentenced to death under the law, that is if ever tried, this sentence for the poor is uncalled for.
“In any event, death penalty has never solved the problem of crime in society.
We need to reform our laws to allow parole system so that inmates who have been ‘corrected’ and reformed overtime can be released subject to conditions”.
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