President Mohammadu Buhari was sworn in on May 29, 2015 as the new President of the Federal Republic of Nigeria. On March 28, 2015, his political party, the All Progressives Congress defeated the ruling party, the People’s Democratic Party and former President, Goodluck Ebele Jonathan during the general elections. Among the many promises made during the campaign (as seen on the Buharimeter website (Centre for Democracy and Development, 2015), one promise President Buhari did not make was to abolish the death penalty. This paper briefly discusses the death penalty issue in Nigeria, its relevance in the political life of the country and why the debate to abolish the death penalty will continue as a discourse of national importance.
The legal framework
Nigeria is party to several international human rights instruments including the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights. However, Nigeria has yet to ratify the Optional Protocol which seeks to abolish the death penalty (Amnesty International, 2015). The death penalty still exists in Nigeria. While Section 33 (1) of the Nigerian 1999 Constitution provides that every person has a right to life, and no one shall be deprived intentionally of his life; the right to life under the Constitution is not absolute.
On May 14, the former President of Nigeria, Goodluck Jonathan, signed the Administration of Criminal Justice Act 2015 into law. The Act harmonizes the Criminal and Penal Codes operating in Northern and Southern states in Nigeria. Section 401 of the Act provides that punishment of a death sentence be by hanging the convict by the neck or lethal injection. By this, it would appear death by firing squad has been removed as a means of execution. However, by provisions of the 1999 Constitution, the Act will only be applicable in the Federal Capital Territory. If enacted by a State House of Assembly, it can be applicable in that state. Furthermore, the law is procedural in nature and does not deal with sentencing issues. Therefore, Criminal and Penal and Sharia Codes in different parts of Nigeria can continue to apply the death penalty. Currently, offenses that may lead to the death sentence include murder, armed robbery, and kidnapping in the states of Anambra, Akwa Ibom, Imo and Abia; and adultery, sodomy, lesbianism and apostasy in states under the Sharia Penal Code.
Nigeria is party to the Rome Statute of the International Criminal Court, and there is currently a bill in the National Assembly to implement the provisions of the treaty. The bill provides punishment for genocide, war crimes, crimes against humanity and crimes against the administration of justice. Although the maximum punishment in the Rome Statute is life imprisonment, the Statute does preclude countries with the death sentence from imposing it (Rome Statute Articles 77 and 80).
In 2002, Nigeria adopted a self-imposed moratorium on the death penalty. This was broken in 2013 when the former president, Goodluck Jonathan, encouraged State Governors to sign death warrants as a means of decongesting the prisons (Oniha, 2013).
According to Amnesty International, although no Nigerian citizen was executed in 2014, 659 persons were sentenced to death including 70 soldiers sentenced by military courts. In total, 1,484 people are on death row. Most of those were convicted of murder and armed robbery (Amnesty International, 2014).
As the statutes and provisions of the 1999 Constitution provide, one can conclude that the death penalty is still legal in Nigeria. In addition, the judiciary has also set judicial precedents through a number of cases upholding the death penalty including Onuoha Kalu v. State, Adeniji v. State, and Okoro v. State where the Supreme Court of Nigeria clearly stated that the death penalty is legal, constitutional and part of the Nigerian legal system.
The cruel nature of the death penalty, especially death by hanging and firing squad, raises the issue of human dignity and whether carrying out a death sentence violates provisions of Chapter IV of the 1999 Constitution. Another point of consideration is that the death penalty has not reduced the incidence of violent crimes in Nigeria. Ironically, it is the resurgence of kidnapping, terrorism and other related offences that have bolstered the resolve of legislatures to include the death sentence as a punishment for some crimes such as kidnapping and terrorism.
This paper supports the call by the Nigerian Institute for Advanced Legal Studies that the death penalty should be abolished in Nigeria. The death penalty is retributive in nature. It does not aim at any meaningful restorative justice. In addition, challenges with our criminal justice system mean that some innocent individuals can easily be sentenced to death for crimes they did not commit. The death penalty does not aim at reconciliation and, in fact, encourages revenge.
A moratorium on death penalty in Nigeria should be reintroduced and, thereafter, the new administration should ensure a comprehensive overhaul of the criminal justice system. As this paper has noted, the President has not made a promise or commitment on the abolition of the death penalty. There is a need to revisit the issue.
Nigeria is not alone in the death penalty voyage. Several countries in Africa still carry out executions despite the moratorium placed on it by the African Commission on Human and Peoples’ Rights. Outside the continent, countries like China, Japan, Indonesia, USA, and others still carry out the death penalty. In fact, Utah (USA) recently reintroduced the death penalty by firing squad as an alternative if there is a shortage in lethal injection drugs to carry out a death sentence. Although several African countries, including South Africa and Malawi have abolished the death sentence, others like Botswana, Cameroon, Chad, Comoros, Congo DR, Egypt, Lesotho, Liberia, Libya, Sierra Leone, Somalia, Sudan, Uganda and Zimbabwe still maintain the death sentence in their statute books.
The abolition of the death penalty in Nigeria will happen one day. However, this doesn’t appear to be in the near future as it is still a practice entrenched in the Nigerian legal system. Although the promises of the current government do not include the abolition of the death penalty, the possibility of revisiting the debate in the future cannot be ruled out. As Nigerians celebrate the government of President Mohammadu Buhari, it is important to remind him that Nigerians voted him into office for change. The abolition of the death penalty is part of that change. Even if it does not happen during his administration, it is still possible for him to lay the foundation for progress through complete adherence to the rule of law and respect for the dignity of all persons. This will create an enabling environment for Nigerians to discuss the issue of the death penalty and agree whether to move forward through abolition or remaining at the status quo.
Benson Chinedu Olugbuo LLB (Nigeria), BL (Abuja), LLM (Pretoria) is currently a Programmes Manager with the Centre for Democracy and Development, Abuja, Nigeria. He is also a Research Associate and PhD student at the Public Law Department, University of Cape Town, Solicitor and Advocate of the Supreme Court of Nigeria and a member of the Council on African Studies, Whitney and Betty MacMillan Center for International and Area Studies at Yale University.