Discharging Constitutional Responsibility: A Case Against Death Penalty

(By Okechukwu Emeh Jr.)

It has also been found that the penalty is often targeted at the innocent, the underage, the poor, the mentally retarded and those not legally well-represented – as they may not have the means to pay the police to adequately investigate their case, pay for a lawyer to defend them or pay to have their name put on a list of those eligible for pardon. Not surprisingly, this has led to the calls in some quarters for the use of forensic test, rather than only confessional statements (in some cases extracted under duress) or eyewitness accounts, to determine the authenticity of the guilt or innocence of certain capital offenders to avoid the risk of wrongful convictions and sentences.

ONCE again, the controversial issue of death penalty (or capital punishment) has been resurrected from the limbo in Nigeria. This is against a backdrop of the recent media report quoting President Goodluck Jonathan as urging the state governors to discharge their constitutional responsibility by signing the death warrants of condemned prisoners pending before them and the subsequent hanging of four death row inmates of the Benin prison, in Edo State.

   Admittedly, capital punishment in Nigeria is recognised by criminal laws at both federal and state levels and it is prescribed for those found guilty of committing heinous crimes like murder, armed robbery and treason. The punishment is also endorsed, in a way, by Section 33(1) of the 1999 Constitution. Ancillary to this was the 1998 celebrated case of Onuoha Kalu vs. the State on the constitutional validity of death penalty, which the Supreme Court ruled in favour of the retention of the penalty.

   Although Nigeria has maintained a kind of moratorium or suspension on criminal execution since her return to civilian rule on May 29, 1999, the policy appears to have been reversed, somehow, with the hanging of a number of condemned persons across the country in 2006, 2012, and this year. Obviously, public and political opinions are sharply divided on the ongoing heated debate on whether to retain or abolish the punishment in our penal code. For proponents of death penalty, the severe measure has a uniquely deterrent force, which no other formal punishment has or could have. In their argument, the fears of being caught for committing gravest crimes such as armed robbery and made to face the commensurate gravest punishment would help reduce their rate. They also contend that capital punishment would permanently remove the worst criminals in our midst, thereby providing an enabling environment for a safe and peaceful society. The apologists of the punishment argue with equal logic that abolishing it would deny the value of the life of the innocent victim and exalt that of the murderer – a submission that reeks of the Mosaic law of “a tooth for a tooth, an eye for an eye” or the old – fashioned thinking that “those who live by the sword must die by the sword”. Some of the supporters of death penalty believe that the penalty would save the tax payer’s money that would have otherwise been used by the government to cater for capital offenders if they are sentenced to life or long-term imprisonment. They also argue that the non-implementation of the punishment has aggravated the crises of congestion and lack of welfare in our prisons.

   For opponents of death penalty in Nigeria, the pristine argument of deterrence of the penalty is otiose and no longer tenable. This is in the light of the futility of such harsh measure in stemming the tide of violent crimes – as criminals do not often think about the punishment that awaits them but about the possibility of being caught and arrested. Furthermore, in the measured words of Olisa Agbakoba (SAN), in the Onuoha Kalu vs. the State, capital punishment is “incapable of correction in the event of an error”—a situation that has raised concern about how compensation for miscarriage of justice could be paid to a person who was charged, tried, convicted and executed for a capital offence, only for it to be discovered, years after, that such person did not commit the said offence, as witnessed in the case of Mr. Nasir Bello (who was sentenced to death for armed robbery in Oyo State in the 1980s and was made to face the firing squad in the midst of his pending case at the Court of Appeal, which after hearing his appeal found him innocent). Agbakoba, a frontline human rights lawyer, further referred to the inevitable long wait between the imposition of death sentence and the actual infliction of it, usually called “the death row phenomenon”, and dismissed the punishment as a “cruel, inhuman and degrading treatment.”

  It has also been found that the penalty is often targeted at the innocent, the underage, the poor, the mentally retarded and those not legally well-represented – as they may not have the means to pay the police to adequately investigate their case, pay for a lawyer to defend them or pay to have their name put on a list of those eligible for pardon. Not surprisingly, this has led to the calls in some quarters for the use of forensic test, rather than only confessional statements (in some cases extracted under duress) or eyewitness accounts, to determine the authenticity of the guilt or innocence of certain capital offenders to avoid the risk of wrongful convictions and sentences.

   From the standpoint of this writer, capital punishment is morally unjustifiable and unacceptable. For one, human life is so sacrosanct and inviolable and it is only God, the giver of life that has the inalienable right and control over it. For another, death penalty removes the humanity of the executed persons and the attendant chances of rehabilitation and their giving something back to the society, in terms of community service. Additionally, the penalty is contrary to the contemporary international human rights standards and values- a development that made the United Nations (UN) General Assembly, through the Resolution 62/149, to call on member states to commute without delay all death sentences to terms of imprisonment.   Interestingly enough, more than 110 countries, including the European Union (EU) member-states, Israel, South Africa, Mauritius, Senegal, Ghana, Gabon and Togo have abrogated death penalty in law or practice. This is regardless of the continued infliction of the penalty by the United States (U.S.), the assumed bastion of democracy and human rights – a situation that has galvanised international opinion against the country, especially from the United Nations (UN) Human Rights Commission and Amnesty International, the London-based human rights watchdog, which have been consistent in their calls on countries still exacting the draconian punishment to jettison the practice.

  The present attitudinal change towards death penalty around the world is the result, at least partly, of new theories, which suggest that mental and social environments are the major and truly relevant factors in fixing direct culpability for crime. As regards mental health, it is argued that it is only an abnormal or insane person that could commit abominable crimes like murder. What is more, in establishing the causal nexus between violent crimes and social environment, the sociology of crime posits that it is the human society that breeds a criminal. For instance, in a social milieu like ours today, where a vast majority wallows in abject poverty and a tiny minority swims in opulence, how can we create the ambience of law and order, knowing fully well that bad governance, corruption, deprivation, poverty, injustice and breakdown of social mores can stoke the flames of crime, violence and insecurity?

  Besides, the main purpose of sending criminals to jail is to subject them to repentance, correctional treatment and re-establishment in normal life as a good citizen. Contrarily, the prison system in Nigeria, unlike what obtains in the Western world, is punitive rather than reformatory and rehabilitative. Certainly, this further hardens the inmates and makes them a potential security threat to the society when they leave prisons.

  Furthermore, the notion that informs the infliction of capital punishment is that criminals will desist from violent crimes if they realise that it will cost them their lives if apprehended. But as a boomerang, the more dangerous criminals are shot, hanged or lynched, the more their tribe increases. Paradoxically, and quite frankly, death sentence does more havoc than good to the society. It makes criminals more sanguinary in their actions since they quite know the ultimate penalty awaiting them if caught. Inevitably, some of them resort to killing their victims at any slightest resistance.

  It is important to state that the intractable problem of violent crimes in Nigeria, which gave rise to application of capital punishment in the country, has its root cause in our grotesquely unjust system that incubates and breeds criminals. These include awful legacy of bad governance, rampant corruption, deplorable state of the economy, inefficient criminal justice system (including the police, the court and the prisons), relative deprivation, mass poverty, chronic unemployment, widening gap between the rich and the poor, human exploitation, greed, unbridled materialism, ungodliness, immorality, erosion of the spirit of social solidarity and decline of traditional family values. In fact, if we did not push back the frontier of these often ignored factors that fuel violent crimes, our all-out efforts to surmount their upward spiral will be in vain.

  As part of the reform of the administration of justice in this country, the Federal Government should respond swiftly and vigorously to the contentious issue of death penalty. This is considering that the penalty has obviously failed as a deterrent measure against violent criminals. Removing capital punishment from our criminal laws is also made paramount by the fact that Nigeria is a signatory to internationally recognised human rights protocols, which guarantee each individual’s right to life, such as the Universal Declaration of Human Rights (1948) and the African Charter on Human and People’s Rights (or the Banjul Declaration of 1981). Therefore, our National Assembly should show moral courage by expunging the penalty from our statute book (or Constitution) since there is no empirical evidence that it serves any penal purpose more effectively than the less severe punishment of imprisonment. This is made imperative by the elevating thinking that the measure of a state’s greatness is its ability not only to retain mercy and compassion in time of grave crises, including violent crime explosion, but also to overcome evil without becoming another form of evil in the process. Of course, this is a major challenge to the Nigeria state at this time of renewed debate on death penalty.

• Emeh, a social researcher, lives in Abuja.

“Opinion pieces of this sort published on RISE Networks are those of the original authors and do not in anyway represent the thoughts, beliefs and ideas of RISE Networks.”

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