Aside from the pressure from the European Union, which has been campaigning for the abolition of the death penalty globally, the political backlash of executing condemned criminals may have been responsible for the refusal of State governors to sign the execution warrant of any death row inmate since the end of military rule in 1999.
The Nigeria Prisons Service (NPS) has confirmed to LEADERSHIP SUNDAY that there is a total of 864 inmates on death row in its custody and in five prisons across the country, noting that there are no dates for their execution. NPS said that it is totally at the discretion of the state governors involved to either sign the execution warrants or commute their sentences to life.
Section 212 (1) (a-d) of the 1999 Constitution, as amended, vests on the state governors the right to issue prerogative of mercy on such convicts.
Major Hamza Al-Mustapha, former chief security officer (CSO) to the late military head of state, General Sani Abacha, was last week sentenced to death by a Lagos High Court. He has appealed the judgment.
However, while the number of those on death row is piling up, the permanent secretary in the Lagos State Ministry of Justice and also the solicitor-general of the state, Lawal Pedro (SAN), has said that the inability of Governor Babatunde Fashola or even his predecessor to sign execution warrant of condemned inmates has nothing to do with politics, but was rather based on the right of appeal of the convicts.
Pedro told LEADERSHIP SUNDAY: “Every inmate condemned to death has the right to appeal. Any signing authority is bound by the final decision of the Supreme Court. To my knowledge, no case has ended in the Supreme Court and gotten to the table of the governor.”
Pedro, however, blamed the inmates for these delays in the appeal process, which could last 10 years at the Supreme Court. “Each convict on death row has a right of appeal and, after filing the appeal, he would leave it to hang indefinitely and not pursue the appeal diligently. Most prefer to be in prison and wait for a prerogative of mercy,” he said.
Legal experts have, however, suggested that while a life sentence is 20 years, an average case of a death row inmate could spend 10 years in the Appeal Court, which has about 70 judges, and another 10 years in the Supreme Court which has about 17 judges who are overloaded with cases, not only of criminal nature but those of commercial, civil, constitutional and election-related matters.
A constitutional lawyer and lecturer in the University of Lagos, Prof. Taiwo Osipitan (SAN), agreed that the governors cannot sign a death warrant until the case in question has been determined by the Supreme Court but noted there are such cases and the governors simply do not want to kill anyone for reasons best known to them.
He said: “In the case of Nasiru Bello Vs. Attorney General of Oyo State, he was executed before his appeal was heard. His life was prematurely terminated and the Supreme Court ruled that he had a right to live and damages were awarded to his family.
“There are cases where the convict has appealed and the appeal is left hanging. There are some who have not bothered to appeal. But there are also those that have been confirmed by the Supreme Court. I think the governors do not want to execute anybody.”
He also said a governor with military background would have no qualms executing a convict, adding that the governors would probably awake if an advocacy group petitioned them to carry out their constitutional duties.
Osipitan said the EU was not necessarily demanding the abolition of the death penalty, but was interested in seeing convicts executed in a more humane way instead of hanging.
Prof Itse Sagay, also a constitutional lawyer, believes the appeal process of those condemned to death takes longer than civil cases, but noted that “some of these state governors object to capital punishment and are not willing to exercise their powers on that part of the law.”
Sagay said, “If they can’t execute anyone, why not commute it to a life sentence instead of leaving the convict in anxiety? Such a state governor must be blamed. If you are against capital punishment, commute it so that the convict will know what he is facing.”
The Nasiru Bello Vs Oyo State case is a locus classicus in cases relating to the death penalty. Dr Konyinsola Ajayi (SAN), a Lagos based lawyer, explained: “In 1982, a guy had been killed before the final verdict of the Supreme Court which set him free. So, the governors have to be careful before taking any decision.
“There are also international conventions that go against the execution of any human being, preferring that the person in question be sentenced to life instead of being executed, but then Nigeria is not a signatory to that convention.”
The public relations officer of the Nigeria Prisons Service, Kayode Odeyemi, who also spoke to LEADRSHIP SUNDAY said most of the death row inmates spend their time praying for mercy, “It has been a long time since hanging has been carried out, because it is not done often. The last time an inmate was hanged was during the military era.”
“For hanging to be carried out, it must be authorized by the executive governor of the state. It is only the executive governor of the state who can also give pardon if need be or even commute sentences if need be, just like the governor of Ogun State did some weeks ago, by pardoning one 70-year-old man who was on death row.”
Odeyemi added: “The 864 on death row do not need date of execution. Once they have been sentenced to death by the courts, it is then the place of the state government to decide when to carry out the execution plan. While some convicts have been on the death row for about 18 years and above, counting from the military regime, others have been sentenced after the era.”
On how convicts are executed, he said, “Apart from hanging of convicts, firing squad is another method used during the military era for executing them. They spend a lot of time praying for mercy. They really look depressed. It is not our duty to interpret objective laws defining a death penalty offence. Ours is to keep safe custody, and that is exactly what we are doing.”