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NIGERIA COUNTRY REPORT ON DEATH PENALTY APPLICATION• UDO JUDE ILO∗

TABLE OF CONTENTS I. INTRODUCTION A. Background. B. About Nigeria. C. International and Regional standards relating to the Death Penalty. D. Relationship of an Incorporated Treaty and Domestic law in Nigeria II. THE CRIMINAL JUSTICE SYSTEM AND THE DEATH PENALTY A. History of Penal Laws in Nigeria. B. Death Penalty in Nigeria.

1. The Offences 2. Capital Offences Under the Military 3. The Cases (i) The landmark case of Onuoha Kalu v. The State

(ii) Peter Nemi v. A.G of Lagos State 4. The Courts 5. The Police

III. THE CRIMINAL PROCEDURE AND THE EFFECTIVE DISPENSATION OF JUSTICE: ISSUES AND PROBLEMS A. Pre-Trial B. Trial

1. The Plea 2 Constitutional Safeguards.

(i) Right to Legal Representation (ii) Provision of an Interpreter (iii) Examination of Prosecution Witness (iv) Right to Fair Hearing 3 Rules of Evidence (i) Evidence of Bad Character/Previous Conviction (ii) Protection from self-Incrimination (iii) Admissibility of Confessional Statement 4 Attitude of the Court

5. Special Trial Proceedings C. Post-Trial

1. Appeal 2. Implementation of Sentence 3. Mode of execution (i) Hanging (ii) Shooting (iii) Stoning 4. Prison Conditions

(i) Overpopulation (ii) Inadequate Health facilities (iii) Attitude of prison Officers (iv) Education and Skill Acquisition Facilities

5. Wrongfully Convicted Persons 6. Extra-Judicial Killings 7. Victims of Crime

IV. TRENDS IN HUMAN RIGHTS AND THE DEATH PENALTY A. The Reawakening B. Abolition Struggle C. Public Opinion and Belief, and the Application of the Death Penalty D. Obstacles in the Effective Application of International Standards.

1. Domestication and ratification procedure 2. Lack of Political Will

∗ National coordinator, BIICL Death Penalty Project, Nigeria. Mr. Jude Ilo is a Project Officer, head of the Death Penalty desk and Coordinator of the Criminal Justice Reform Project at Human Rights Law Service (HURILAWS) which is a specialist provider of Human Rights and Public Interest law services in Nigeria.

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3. Attitude of Security Officials 4. Lack of Awareness

E. Impediments to Challenges to the Death Penalty. 1. Religion 2. High rate of crimes 3. The Constitution 4. Public Awareness 5. Lack of Funds

V. THE NEXT STEP APPENDIX 1: Inmates Charged with Capital Offences and Manslaughter Awaiting Trial in all the States of Nigeria as of September 5 2003 APPENDIX 2: Persons on Death Row in Nigeria as of July 2003 Bibliography Table of Cases

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I. INTRODUCTION

A. Background. Nigeria is one of the countries that still retain the death penalty in their statute books. The Constitution, which is the supreme law of the land, provides for the right to life1but this right can be infringed upon in the execution of the sentence of a court in respect of a criminal offence of which such a person has been found guilty in Nigeria. The Supreme Court in Onuoha Kalu v State 2 held that the application in Nigeria of the death penalty is constitutional. The death penalty has been applied in this country for more than 50 years. This work is an appraisal of death penalty application in Nigeria and a holistic analysis of the key institutions of the criminal justice system with respect to death penalty application.

B. About Nigeria. Nigeria is a multi religious and multi ethnic society. A country made up of 36 States. It is a Federal State with the various States enjoying autonomy to a reasonable extent although the Federal Government wields enormous influence. The pluralistic nature of Nigeria accounts for its practice of a Federal system. There is a need to allow States to maintain their peculiar identity while ascribing to a central Government.

Functions of the Federal Government and the State Government are spelt out in the Constitution.3 Section 4(2) of the Constitution4 vests the legislative power of the Federal Government on the National Assembly in respect of the matters listed in the exclusive list. By implication, the National Assembly has exclusive power to legislate on the items listed in the exclusive list in Part I of the Second Schedule to the Constitution.

The State and the Federal Government have concurrent legislation with respect to matters listed in the concurrent list.5 Part III of the Second Schedule provides in Item 2 as follows

In this Schedule, references to incidental and supplementary matters include, without prejudice to their generality, references to- (a)Offences (b) The jurisdiction, powers, practice and procedure of courts of law

The State and the Federal government both have powers to legislate with respect to offences and punishment for crimes. The Constitution also made provisions with respect to conflicts between the Act of the National Assembly and State laws with respect to matters in the concurrent list. The constitution provides as follows

If any law enacted by the House of Assembly is inconsistent with any law validly made by the National Assembly, the law made by the National Assembly shall prevail and that law to the extent of the inconsistency be void.

By implication, the laws of the National Assembly with respect to the items in the concurrent list are superior to that of the State Assembly. The doctrine of covering the field as enunciated by the Supreme Court in the case of AG Ogun v AG Federation6 and AG Abia v AG Federation7 further amplifies the supremacy of the Act of National Assembly to that of the State Assembly. The point being made here is that both the National Assembly and the State have powers to legislate with respect to criminal offences. But it is also trite to say that the National Assembly sets the standard in that the State laws in relation to the same subject matter must not contradict the Act of the National Assembly. The basis of our discussion on the death penalty is that it is both a Federal and State law and it has been administered by both tiers of Government. 1 s 33 of 1999 Constitution of Nigeria 2 (1998) 12 SCNJ 3 1999 Constitution of Nigeria 4 ibid 5 ss 4(3),4(7) First Column of Part II of the second sch to the 1999 Constitution 6 (1982) NCLR 7 (2002) 6 NWLR PT 763, 264

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C. International and Regional Standards Relating to the Death Penalty. Various international conventions and documents exist which relate to the application of death penalty.8 Such treaties apply to Nigeria to the extent of its ratification and domestication. Nigeria has ratified the following treaties, which relate to the application of the death penalty: the International Covenant on Civil and Political Rights, the International Covenant on Economic and Social Rights, the African Charter on Human and Peoples’ Rights, 9 and the Conventions on the Rights of the Child10. The ICCPR recognizes that every human being has the inherent right to life and that no one shall be arbitrarily deprived of his life11. The African Charter on Human and Peoples’ Rights and the Convention on the Rights of the Child both have similar provisions.12The Convention on the Right of the Child further prohibits the imposition of the death penalty for crimes committed by a person below the age of eighteen. The ICCPR in qualifying the right to life restricts the category of offences that attracts the death penalty to the most serious crimes.13

It is pertinent to point out at this juncture that the Convention on the Elimination of All Forms of Discrimination against Women relates to this discussion in that it relates to the discrimination against women and as we will portray in this discussion, women are discriminated against in the application of the death penalty especially in the area of Sharia law.

The application of these treaties is regulated by the Constitution. In this respect, the Constitution provides as follows

No treaty between the Federation and any other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly14.

The Supreme Court in the case of Abacha v Fawehinmi15 explained further the import of this provision. It was the view of the court that an international treaty entered into by the Government does not become binding until enacted into law by the National Assembly; it has no binding force of law as to make its provisions justiciable in Nigerian Courts. On the strength of the Constitution and the pronouncement of the Supreme Court, it is only the provisions of the African Charter that are justiciable in Nigeria in that it has been ratified and domesticated by Nigeria. It is found in the Laws of the Federation of Nigeria 199016. Other treaties ratified though undomesticated still exact some influence in government policies and the drafting of related laws in Nigeria.

D. Relationship of an Incorporated Treaty and Domestic Law in Nigeria. When a treaty is ratified and incorporated by the Act of the National Assembly, such a treaty becomes an Act of the National Assembly with a special ‘flavour’ and it is enforceable in our courts. The Supreme Court in Abacha v Fawehinmi17states

the African Charter is a statute with international flavor. Being so, therefore, if there is conflict between it and another statute, its provisions will prevail over those of that other statute for the reason that it is presumed that the legislature does not intend to breach international obligation. Thus it possesses a greater vigor and strength than any domestic statute.

This does not remove from the fact that the National Assembly can repeal such an Act if it so desires. The Court went on to say that any treaty so domesticated is subordinate to the Constitution. This is based on the premise that the Constitution is the grundnorm in Nigeria18. In the above case, the court recognized and

8 Many of these international conventions are not ratified by Nigeria but have considerable impact on formulation of governmental policies. 9 Ratified in June 1985. Domesticated and ratified via African Charter on Human and People’s Right Ratification and Enforcement Act LFN 1990 10 Ratified 19 April 1991. 11 art 6(1). 12 art 4 and art 6(1) respectively. 13 art 6(2). 14 sec 12(1) of the 1999 Constitution. 15 (2000) 6 NWLR pt 660 228, 246. 16 c 10 LFN. 17 Abacha (n 15) 251. 18 ss 1(1) and (3) of the Constitution.

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enforced the fundamental human rights of the respondent under the African Charter in spite of a decree which ousted the jurisdiction of the court to enquire into the propriety or otherwise of an act done by the Government under that decree.19 The courts are disposed to accord special respect to international treaties that are incorporated in the country. The courts cannot enforce such other treaties not incorporated. It remains only as a model or standard, which may influence government in the formulation of policies.

The African Charter as incorporated in Nigeria has been a major shelter for Nigerians especially during the military era when the provisions of the Constitution in Chapter 4, which relates to fundamental human rights, were suspended. Moreover other treaties, which relate to the death penalty, have been influential in shaping human rights practice in Nigeria.

II. THE CRIMINAL JUSTICE SYSTEM AND THE DEATH PENALTY There are four key institutions in the criminal justice system in Nigeria. They include: the Courts, the Police, Prisons and the Penal Laws. Greater emphasis will be placed on the penal laws since they are the bedrock of the system. It is important at this point to take a historical look at the penal regime in Nigeria with particular reference to its relationship to the death penalty.

A. History of Penal Laws in Nigeria. Trade contact between the indigenous people of this country and the British merchants started before the nineteenth century. It was this initial trade contact that later culminated in the subsequent colonization of this country by Britain. The final success of colonization of Nigeria was as a result of gradual importation of western rules initially aimed at harmonizing and guiding trade relationships and finally used in stamping British authority in Nigeria.

Prior to this, the various tribes and ethnic groups numbering more than 200 had various rules of conduct, which guided their day-to-day activities. There was punishment for various offences. These penal practices were not homogenous. In the Eastern part of the country the highest punishment given by the community elders for the most serious crime, that is, murder or slave trading, was banishment. Capital punishment was practiced in the Northern part of the country, which was predominantly a Muslim community. In the western part of the country inhabited by predominantly the Yoruba tribe, capital punishment was practiced in crimes like murder and disrespect to the Oba (traditional ruler). Other tribes had similar practice but capital punishment was rarely applied in most cases.

In a bid to regulate and harmonize trade relationships, the first British consul was appointed in 1849. The Consul established courts known as Consular Courts, which dealt with disputes involving natives and foreign merchants.20 In 1872, a British Order in Council provided for the reorganization of the Equity courts and formal establishment of Consular Courts21.

In 1914 the British Government amalgamated the Northern protectorate with the Southern Protectorate to form the colony and protectorate of Nigeria.22 The Supreme Court Ordinance23 established the Supreme Court with jurisdiction to administer the common law of England, doctrine of equity and the Statute of general application, which were in force in England on January 1 1900. The English laws so imported had provisions on capital punishment.24 The native laws continued to be operational in the country in the area of both criminal and civil proceedings. The customary and native courts enjoyed British recognition but they were not permitted to apply the death penalty at that time.25

The Criminal Code, which was introduced in the country in 1904, was extended in 1916 to the whole country.26 Section 4 of the Criminal Code Ordinance expressly exempted native tribunals from its operation and it was these native tribunals which dealt with the bulk of criminal cases. Thus after 1916, most criminal cases in Nigeria were still governed not by the Code but by native law and customs.

19 pp 252-257 20 Obilade A. O Nigeria Legal System (Sweet and Maxwell 1977) p 18. 21 ibid 22 British Government assumed a gradual and consistent control of the various component regions of Nigeria. Their control of those areas was backed by laws, which included penal laws. The amalgamation of 1914 was the birth of Nigeria and for the purposes of our discussion, I will confine our analysis to the laws that came after 1914 23 No 6 of 1914 24 Such laws were already in existence before amalgamation but were applied uniformly all over Nigeria in 1914 25 Proclamation No 5 of 1900 26 Okonkwo and Naish Criminal Law in Nigeria, (2nd edn Spectrum Publishing Ibadan 1990) p 4

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The application of customary law (Sharia law)27 with the Criminal Code was breeding a lot of problems. Many provisions of the Maliki School of Sharia law, which was applicable in Northern Nigeria, were not acceptable to English law. Sharia law has no provisions ameliorating the death penalty for homicide committed during provocation. There existed various areas of conflict between the Criminal Code and customary law. Subsequently, section 4 of the Criminal Code Ordinance, which excluded native tribunals from the application of the Criminal Code, was amended. The amendment provides that no person shall be liable to be punished in any court of law of any offence except under the express provisions of the Code. Import of this provision was decided in Gubba v Gwandu Native Authority28. It suggested the total phasing out of customary criminal codes except where the Code was silent. The amendment generated divergent interpretations.

There was an urgent need to harmonize criminal justice practice in Nigeria. The Northern Nigeria Government in 1958 set up a panel of jurists to consider the whole problem. This Panel recommended that Sharia law (customary law) should in future be confined to the personal and family law of Moslem litigants.29 The decision was taken in the 1958 constitutional conference to abolish customary criminal law in Nigeria altogether. The peculiarities of indigenous cultural practices were reflected in the Criminal and Penal Code of Southern and Northern Nigeria respectively30. The two Codes remained the major penal laws in Nigeria. The various States, which were created out of the Southern and Northern region, adapted the Code applicable to their regions. This was the practice until 1999 when the Sharia penal code was adopted by Zamfara State Government and subsequently by 11 other States in the Northern Part of the country.31

Presently, there are 3 major penal laws coexisting in Nigeria. They include the following: the Criminal Code, and the accompanying Criminal Procedure Act (CPA)32, the Penal Code Act and the accompanying Criminal procedure Act (CPA) 33and the Sharia penal legislations including both laws defining the criminal offences and their punishments as well as for those States that adopted them, the accompanying criminal procedure codes. The three systems have provisions creating offences and punishments and criminal procedure depending on the State in which the law is applied and the religion of the accused. The Criminal Code relates to States in the Southern part of the country, the Penal code relates to the States in the North and the Sharia penal laws are applicable to Muslims in the States which adopted them and also for non Muslims who have agreed to be bound by them. The Sharia penal code is largely influenced by the Quran. The Penal code formally operational in the Northern States has by the recent adoption of the Sharia penal code either replaced in part or in full, the penal code applicable to Muslims.34

B. Death Penalty in Nigeria. 1 The Offences

The following offences attract capital punishment under the provisions of the Criminal and Penal Code of Nigeria: 1. Armed Robbery – Section 402 (2)(a)(b) Criminal Code Act (CC) Cap 77 Laws of the Federation (LFN)

1990 2. Murder – Section 319(1), CC s 221 of the Penal Code (PC), Cap 345 LFN 3. (a) Treason – Section 37(1) and 38 of the Criminal Code, section 410 and 411 of the Penal Code

(b) Conspiracy to Treason – section 37(2) CC (c) Instigating invasion of Nigeria – Section 38 CC

4. Treachery – Section 49A(1) of the Criminal Code 5. Fabricating false evidence leading to the conviction to death of an innocent person - section 515(2) of

the Penal code

27 Sharia law before now was treated as customary law. sec 2 High Court Law of Northern Nigeria 1960. Similar provisions can be found in previous enactments before the High Court rules. 28 (1947) 12 WACA 141 29 Anderson (1959) 81 CLQ 442 30The Northern House of Assembly passed into law the Penal Code Law from October 1960. 31 Borno, Bauchi, Gombe, Jigawa, Kaduna, Kano, Kastina, Kebbi, Niger, Sokoto, and Yobe 32 Laws of the Federation 1990 CAP 77 and 80 respectively 33 Laws of the Federation 1990 CAP 345 and 81 respectively. The State penal laws are impari materia with the federal penal laws. 34 The penal code was adopted in 1960 after much consultation in order to meet with the demands of the predominantly Muslim community in the North. It lays down offences which derive their basis from the Sharia law, eg the offence of adultery. This Islamic flavour is the major difference between the Penal code and the Criminal code applicable in Southern Nigeria.

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6. Aiding suicide of a child or Lunatic - section 227 of the Penal Code 7. Robbery and Firearms Decree No. 5 of 1984 8. Under the various Sharia Penal Laws applicable to 12 States in Northern Nigeria, these offences carry

the death penalty: (a) zina (adultery) (b) rape (c) sodomy (d) incest (e) witchcraft and juju offences 35

2. Capital Offences under the Military. Military rules in Nigeria are synonymous with undemocratic rules and practices. During military regimes, a large section of the fundamental rights under Cap 4 of the Constitution were suspended. The various Military administrations have enacted decrees that have provisions relating to capital offences. They include the following:

1. Decree No 10 of 1985 on drug trafficking and other related matters36 2. Counterfeit (Special Provision) Decree No 22 of 1974 3. Special Tribunal (miscellaneous offences) Decree No 26 of 198437 4. Decree No 20 of 198438 5. Robbery and Firearms Decree No 5 of 1984, formally Robbery and Firearms Decree of 197039

Most of these Decrees have been repealed but during the years that they were in force, they took a great toll on the lives of Nigerians. There were enforced by special Military tribunals and the fairness of such trials was very much in doubt. Of historical significance is the execution of Ken Saro Wiwa and four others who were executed hours after their conviction without any right of appeal. A trial, which was so unfair that the lawyer who represented the accused walked out of Court because of the apparent unfairness in the trial.40 3. The Cases

(i) The landmark case of Onuoha Kalu v. The State41

The appellant, Kalu was arraigned before a Lagos High Court for murder, which was allegedly committed in August 1981. He was found guilty and was sentenced to death. He subsequently appealed to the Court of Appeal, which upheld the decision of the lower court. On further appeal to the Supreme Court, the new issue of the constitutionality of the death penalty was raised.

It was argued by the counsel for the appellant that the death sentence passed on him was a violation of the appellant’s right to dignity of human person which is guaranteed under Section 31 of the 1979 Constitution of the Federal Republic of Nigeria. It was also contended that the execution of the death sentence, particularly by hanging as prescribed by law would amount to torture, inhuman and degrading treatment and therefore would be in conflict with Section 30 the Constitution which guarantees the right to life.

35 There is no uniform Sharia Criminal code for the 12 States referred to but these offences can be found in the various Sharia penal codes applicable to the various States. According to Amnesty International access to some of these Codes are not easy due to the fact that they are not properly published and not readily made available to the Public but the following are cited: s126 and 127 of the Sharia Penal Code Law 2000 of Zamfara State; s 128 and 129 of the Sharia Penal Code Law of Sokoto State; ss 121 and 122 of the Sharia Penal and Criminal Procedure Codes of Kaduna State; s124 and 125 of the Sharia Penal Code Law 2000 of Kano State. Other States that have adopted Sharia Criminal Laws include: Bauchi, Borno, Gombe Jigawa, Kastina, Kebbi, Niger and Yobe State. 36 s 6(3)(k) - this decree had a retroactive effect and subsequently three young men Bartholomew Owoh, Bernard Ogedengbe and Lawal Akanni were executed for drug trafficking which was not a capital offence when they committed the crime 37 s 6(3) arson of public or office building 38 s 6(3)(e) malicious damage and destruction of oil pipeline 39 s 1(2) 40 Human Rights Watch, The price of Oil, Corporate Responsibility and Human Rights Violations in Nigerian Oil Producing States. (January 1991) 41 (1998) 12 SCNJ

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In dismissing the appeal, the Supreme Court held inter alia that:

1. Section 30 (1) of the 1979 Constitution (which is equivalent to Section 33(1) of the 1999 Constitution), which guarantees the right to life, provides for a qualified right and not an unqualified right. The qualification being that the right to life is not violated when life is taken in execution of a court order.

2. The Constitution, having preserved the death penalty by the necessary understanding of Section 30 cannot be interpreted as intending immediately thereafter to regard the death penalty as amounting to torture, inhuman and degrading treatment.

3. Section 31 states clearly that nothing done under the authority of any law shall be held to be torture, inhuman and degrading treatment. The real issue therefore is not whether the death penalty amounts to torture, inhuman and degrading treatment in the ordinary meaning of those words but whether it amounts to torture, inhuman and degrading treatment within the meaning of the 1979 Constitution.

(ii) Peter Nemi v. Attorney General of Lagos State & Anor.42

The appellant, Peter Nemi, was convicted of conspiracy to commit armed robbery and had been sentenced to death in February 1986. He had been in custody since his arrest in September 1982. His appeal was dismissed by the Court of Appeal in March 1990 and by the Supreme Court in October, 1994. He then applied in the Federal High Court for and was granted leave to enforce his fundamental right based on the following reliefs:

1. A declaration that the prison confinement of the applicant under the sentence of death since February 1986, a period of 8 years, constitutes an infringement of the applicant’s fundamental rights against torture, inhuman and degrading treatment protected by Section 31(1)(a) of the 1979 Constitution.

2. An order directing that the sentence of death be quashed and/or commuted to such term of imprisonment as the Court may direct.

The grounds on which these reliefs were sought was stated to be that the prolonged confinement of the appellant on death row for that period of time under the agony of suspense of execution of his sentence of death constituted torture, inhuman or degrading treatment.

The Court of Appeal held inter alia that:

1. To end the life of a condemned prisoner, it must be done according to the due process of law, and the due process of the law does not end with the pronouncement of sentence. According to Uwaifo, J.C.A.

the aspect that a condemned prisoner has no right to life, cannot enforce any fundamental rights and is therefore as good as dead is quite perturbing. It needs some questions and comments. Does it mean that a condemned prisoner can be lawfully starved to death by the prison authorities? Can he be lawfully punished, by a slow and systematic elimination of his limbs one after another, until he is dead? Could his legs be soaked with petrol and set on fire under a pot to boil rice by someone wearing a smiling face while this is going on since he is as good as dead and without fundamental rights? Would any of these amount to inhuman treatment or torture? Is a condemned prisoner not a person or individual? There are questions which gravely touch not only the heart but which also bring section 31(1) (a) of the Constitution into focus even in cases of condemned prisoners.

2. The question whether having had a prolonged stay on death row, an applicant is entitled to be heard for redress under the Constitution because to him that constitutes his having been subjected

42 (1996) 6 NWLR pt 452 p42

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to torture or to inhuman or degrading treatment is of fundamental importance since it involves the life of a human being. This being so, it deserves to be tried and adjudicated on its merits. The matter cannot be peremptorily dismissed. Although it must be conceded that the issue raised is not an easy one, however, it is not an issue to be brushed aside in Nigeria as unreasonable without first giving it a very serious and full consideration particularly as it must be examined within the context of Nigerian Constitutional provisions and with the implications of the African Charter on Human and Peoples Rights in mind.

4. The Courts As regards the application of the death penalty, the Constitution and other legislations confer jurisdiction on the following courts43: 1. The 1999 Constitution of the Federal Republic of Nigeria confers jurisdiction on the Supreme Court to

determine appeals from the Court of Appeal44. In particular, subsection (2)(d) empowers the Supreme Court to determine ‘decisions in any criminal proceedings in which any person has been sentenced to death by the Court of Appeal or in which the Court of Appeal has affirmed a sentence of death imposed by any other court.’

2. The Court of Appeal is empowered under the Constitution45 to hear appeals from the Federal High

Court, the High Court of the Federal Capital Territory, the State High Courts, the Sharia Courts of Appeal of the States and the Federal Capital Territory and the Customary Courts of Appeal of the States and the Federal Capital Territory. The Court of Appeal under this section is also empowered to hear appeals from the Court Martial and other Tribunals established by an Act of the National Assembly.

3. The High Court of each State is empowered to determine criminal questions and proceedings by virtue

of section 272, of the Constitution46. 4. The High Court of the Federal Capital Territory, Abuja is empowered by section 257 (1) of the

Constitution to hear and determine criminal cases. 5. By the provision of section 251,47 the Federal High Court will have such criminal jurisdiction as is

conferred on it by an Act of the National Assembly. Subsection (2) of the same section confers criminal jurisdiction on the Federal High Court to ‘exercise jurisdiction and powers in respect of treason, treasonable felony and allied offences’.

6. The Court Martial established under the Armed Forces Act48 is empowered to determine questions of

crime under the Act, which basically involves military offences. 7. The Sharia Courts: these Courts operate under the Sharia penal legislations. Cases attracting capital

punishment, such as zina are tried by the lower Sharia courts. The right of appeal to an Upper Sharia Court is guaranteed in all Sharia criminal procedure codes. The Sharia Criminal Procedure Code of Sokoto State provides

Whoever is dissatisfied with the order; rulings; decision or judgment made by a Sharia Court may appeal to the Upper Sharia Court sitting in its appellate jurisdiction.49

43 The Magistrate Court is not included in our analysis since it does not have jurisdiction to entertain capital cases. But in the practice of holding charge, they exercise the power to remand a person accused of committing a capital offence pending the completion of investigation and proper arraignment. The Court of Appeal has declared this practice unconstitutional but it still persists. 44s 233(1) 45 ss 240 and 241 of the Constitution. s 241(1)(e) provides that the Court of Appeal has jurisdiction to hear appeals arising from decisions in any criminal proceedings in which the Federal High Court or a High Court has imposed a sentence of death penalty. 46 sub-s (1) and (2) 47 sub-ss (1) and (3) 48 Armed Forces Decree No. 105 of 1993 49 s 233(2) of the Sharia Criminal Procedure Code Law 2000 of Sokoto State

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The subsequent appellate Court is the Sharia Court of Appeal50 in each of the 12 States, and if that particular state does not have one, the case may be transferred to the Sharia Court of Appeal in another State. Appeals lie from the Sharia Court of Appeal to the Federal Court of Appeal and subsequently to the Supreme Court, which is the Court of last resort. The Criminal Jurisdiction of these Courts mentioned is subject to the prerogative of mercy exercisable by both the President and the Governor of a state as the case may be.51

The police and the prisons are major institutions in the criminal justice sector. They play a very significant role in the determination and enforcement of judgments of courts in respect to capital punishment52.

5. The Police

The Nigerian Police Force is a Federal Agency, which plays a central role in the administration of criminal justice. It has the constitutional responsibility of maintaining law and order and investigating crimes and apprehending offenders. The statutory duties of the Police as contained in Section 4 of the Police Act53 are subsumed in the aims of the criminal justice system. These duties are the prevention and detection of crime, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged.

In Idowu v State54, the Supreme Court commented on the important role that the Police play in the prosecution of capital offences. Wali J.S.C. said

I wish to comment on the way and manner the prosecution conducted the investigation of this case. The method adopted left much to be desired. With the number of police officers trained as lawyers in the Police Force, the quality of the police investigation, particularly in this case, is far below the quality and standard one would expect in this age of technological developments. The Ministry of Justice, which has the responsibility of supervising investigation of criminal cases, particularly those involving human lives, are also not free from blame. Prosecutions of cases are more often than not conducted in a loose and unsatisfactory manner, resulting in acquittal of criminals who should have been convicted55.

Ogundare J.S.C. also had this to say:

I cannot end this judgment without commenting on the poor quality of the investigation, if any, carried out by the police in this case. Had there been a more thorough investigation, the missing link would have been obtained. The quality of the prosecution at the trial was not better either56.

In the Supreme Court case of Aigbadion v. State57where the appellant was appealing his conviction for murder and death sentence, the conduct of the police in investigating the crime was criticized by Uwais J.S.C. when he stated that ‘the investigation of this case by the police leaves much to be desired’. He used such terms as ‘half-hearted’, ‘no further effort’, ‘no serious investigation’, ‘shoddy and incomplete’ to describe the purported investigation carried out by the Police.

In Samuel Bozin v. State58, the appellant had been convicted of armed robbery at the trial court and was sentenced to death. The conviction and sentence was upheld at the appellate court. On further appeal to the Supreme Court, in allowing the appeal, it held that per Oputa J.S.C., ‘the appellant was obviously paraded as an armed robber, a short step to his being identified as the armed robber’.

50 Prior to the adoption of the Sharia penal code, the Sharia Court of Appeal had no criminal jurisdiction. See s277 of the Constitution. The various State Governments conferred it with criminal jurisdiction following the adoption of Sharia penal laws. 51 ss 175 and 212 of the Constitution. This power is exercisable by the president in respect to Federal Laws and by the state in respect to state laws. 52 Further analysis of other key areas of the Criminal justice system will come in our subsequent discussion. 53 c 359 Laws of the Federation of Nigeria 1990 54 (2000) 12 NWLR pt 680 55 ibid p82 56 ibid p79 57 (1999) (NWLR) pt 586 284 58 [1985] 2 NWLR pt 8 465

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In the two cases, cited above, the appellants had been convicted of murder and sentenced to death by the court of first instance and had the convictions affirmed by the Court of Appeal despite the obvious lack of thorough investigation by the Police. A thorough scrutiny of the Police Act shows the standard of conduct of Police officers is either too general or relates mainly to dealings with other members of the Force.59 The Police Force lacks professionalism and expertise to carry out efficiently their statutory functions. In Nigeria, the Police are synonymous with inefficiency and are viewed as the seat of corruption. The cases illustrated above paint a concise picture of an every day event in Nigerian courts due to Police inefficiency.

III. THE CRIMINAL PROCEDURE AND THE EFFECTIVE DISPENSATION OF JUSTICE: ISSUES AND PROBLEMS

Court proceedings with respect to criminal matters are guided in Nigeria by three major legislations. They include the Constitution, Criminal Procedure Act 60applicable to the Southern part of the Nigeria where the Criminal Code is applicable and the Criminal Procedure Code61 applicable to courts in the Northern part of the country. Each State carved out of these regions has their own adaptation of the criminal procedure, which is on all fours with the Federal Act. Following the introduction of the Sharia penal regime, the states that adopted the Sharia penal law also have corresponding procedure laws. The rules of procedure are not uniform.

A. Pre-Trial The Police are empowered under the Constitution to arrest upon reasonable suspicion of the commission of a criminal offence or to prevent the suspect from committing a criminal offence.62 The Police Act and the criminal procedure laws give the Police wide discretion in arresting suspects. These wide powers conferred on the Police have been the subject of abuse. The Police constantly maliciously arrest innocent people in order to intimidate or to extort money from them. Some individuals who failed to comply have seen themselves charged with trumped up capital offences and they get to spend many years in prison for offences that they did not commit63

The Constitution provides that a person arrested should be informed of his crime within 24 hours64. The right to know is exercisable prior to trial, at trial and the time of arrest or at the beginning of trial.65 Such a person should be brought before a competent court within 24 hours if the court is within 40 kilometres or 48 hours if more than forty kilometres.66 In capital offences, an accused can be detained for up to two months but the Constitution provides that if such a person is not taken to Court he should be released.67 The Police constantly flout these provisions. The 24 and 48 hours rule is rarely followed and it is fast becoming an ignored provision. The Police try to get around the provisions of the Constitution through the practice of holding charge. This is the practice whereby the Police take a person suspected of having committed a capital offence to a Magistrate Court which has no jurisdiction to get a remand order pending when they have conclusive evidence to arraign such a person in a competent court. The truth is that before the Magistrate makes the remand order, there may not be any evidence linking the suspect to crime. The Court need not require proof of such evidence. The Police use this as a means of covering their incompetence and also victimize innocent people on the grounds of inconclusive evidence. The Court of Appeal has declared this practice to be in conflict with the right to liberty enshrined in section 35 of the

59 n 53 60 c 80 LFN 1990 61 c 81 LFN 1990 62 s 35(1) of 1999 Constitution. Other security officers are empowered to effect arrest by the laws establishing them. Private individuals are empowered to affect arrest in certain circumstances. However the bulk of arrests affected in Nigeria with respect to capital punishment are done by the Police. 63 Edmund Okoro was arrested in 1979 for not having an Identity card, later he was charged for armed robbery and was convicted. After 4 years in awaiting trial and 18 years on death row, the Court of Appeal found him innocent; the writer was once arrested and detained for a night in TansEkulu police Station in 1998 for what the police termed ‘police operation’ a concept not known to law 64 s 35(3) of the Constitution, Criminal Procedure Code 65 s 36(6) (a) of the constitution, s 17 of the Criminal Procedure Act, s 340(1) of the Criminal Procedure Code. 66 s 35(4) and (5) 67 s 35(4)

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Constitution in the case of Bayo Johnson v A G Lagos State.68 In spite of the Court of Appeal decision, this practice persists. This accounts for more than 75% of awaiting trial inmates in the prisons across the country and a major cause of prison congestion. A person arrested is guaranteed his basic rights. Of much importance are the rights and privilege against self- incrimination69; the right to remain silent and to have the service of a legal practitioner before answering any question; the right to be presumed innocent until found guilty70; and freedom from torture, inhuman and degrading treatment.71 A person arrested is also entitled to bail. Bail is usually refused in respect of capital offences except in special circumstances provided in the CPC and CPA respectively72. These safeguards if adhered to will provide a fair footing for suspects in criminal / capital offences. In practice, they are rarely followed. Police in Nigeria are notorious for forcing individuals to make confessional statements. This they achieve through torture and inhuman treatment of accused persons. Arthur Onyejekwe was tied to a rotating ceiling fan and thoroughly beaten so that he would sign a confessional statement, which led to his conviction for murder.73 Suspects are tortured and treated by the Police and the society at large as guilty even before trials. Most people are reluctant to question the activities of the Police in this respect because of the high cost and delay in litigation. The Constitution guarantees in Section 36(6) (e) that an accused should be given adequate time and facilities to prepare his defence74. The court has been very generous to accused persons in granting extension of time for case preparation but the same cannot be said about access to materials and evidence for the defence. The prosecution is always reluctant to share information and in some cases there have been accusations that the prosecution suppressed information favourable to the accused. My general summation here is that the pre-trial environment in capital cases in practice is not accused friendly.

B. Trial 1. The Plea This is the first step in criminal trials; the following options are open to the accused: (i)Preliminary objection An accused person may raise a preliminary objection to the jurisdiction of the court or to a defect in the charge75. His objection shall be duly considered and if upheld, he shall be discharged. However if the objection is overruled, such an accused shall be asked to plead. (ii)Refusal to Plead The accused may refuse to plead to the charge. He shall thereafter be asked by the court to state his reasons for refusal. If the court is satisfied that the reason for the refusal is not valid, a plea of not guilty shall be entered on behalf of the accused and the trial shall proceed.76 (iii)Standing mute/visitation of God An accused person may stand mute and the court shall call evidence to determine whether the muteness is of malice or due to the visitation of God. If the Court finds that the muteness is of malice, a plea of not guilty shall be recorded and the trial continues.77However, if the muteness is of the visitation of God (for example, insanity) the trial shall not proceed and the accused shall be ordered to be detained at the pleasure

68 (2002) 8 NWLR pt 768, 192 69 s 35(2) of the Constitution, Nasiru v State (1999) 2NWLR pt 589, 87 70 s 36(5) of the Constitution, Eyu v State (1988) 2 NWLR 602 pt78 71 s34 of the Constitution. 72 ss 34(1) and 118(1) of the CPC and CPA respectively, Olugbusi v COP (1970) 2 ALL NLR 1. 73 He was later released on parole 16 years later. 74 Udo v State (1988) 3 NWLR 316. 75 If the charge is ambiguous or the crimes are not properly defined, it is enough ground for the court to discharge the accused. ss 201 and 202 and ss 151 and 152(1) of the CPC and CPA respectively. Garba v State (1999) 11 NWLR pt 627, 422. 76 Gaji v State (1975) 5 SC 60, s 220 CPA and s 188 CPC. 77 Ysufu v State (1972) 12 SC 143.

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of the Governor.78 Where the accused is found to be deaf and or dumb, the court shall further take evidence to determine whether the accused can be made to understand and follow the proceedings. If so, the trial shall proceed; if not, the accused shall be remanded in custody or released on bail until the visitation is over, or until the Governor’s pleasure is known. (iv) Plea of guilty An accused may plead guilty to the charge. Such a plea shall be recorded by the court as nearly as possible in the words used by the accused, if the court is satisfied that by the pleas, the accused intends to admit the truth of the essentials of the offence, it may proceed to convict him on the plea79. In capital cases, a plea of not guilty is recorded notwithstanding a plea of guilty by the accused.80 (v) Plea of not guilty by reason of insanity The accused may plead not guilty by reason of insanity and the court shall proceed with the trial and determine:

(a) Whether the accused did commit the offence; and (b) Whether he was insane at the time of committing the offence, if the accused is found not to have

committed the offence, he shall be discharged and the court shall not decide the issue of insanity. If he is found to have committed the offence and to be insane at the time of committing it, he shall be remanded in prison custody until the Governor’s pleasure is known81 2. Constitutional Safeguards The Constitution and other penal legislations have some safeguard to ensure a fair trial for an accused person. These safeguards draw from the provisions of fundamental rights enshrined in the Constitution. They include but are not limited to the following: (i) Right to Legal Representation The right of an accused person to represent himself in person or by a legal practitioner of his choice is guaranteed under section 36(6) (c) of the Constitution. The law guarantees legal assistance to a person accused of a capital offence. The CPC and CPA both have provisions in this regard. 82 The Legal Aid Act provides for legal aid in a capital offence for a person who has an income that does not exceed N1500 per annum.83 The Court views the provision of legal representation with seriousness. The Court held in Ariori v Elemo84 that an accused if brought before the court without representation, the court must inform such an accused that he has a right to be represented by counsel. The court further stated that such a right is not waivable. The Supreme Court in the case of R v Uzodinma85 held that any law, which denies an accused person the right to legal representation, is null and void.

The right to legal representation is not satisfied with just the presence of a lawyer. Such a legal practitioner must diligently defend the accused. The Supreme Court held in Udofia v the State86 that in a situation where an accused is not properly represented by a counsel such conviction arising from the proceedings would not hold since it amounted to denying the accused fair hearing87.

It is not very easy to provide counsel to indigent accused persons. There is little the Legal Aid Counsel can do in this regard since they are incapacitated by finance and an inadequate workforce. Lawyers in Nigeria are sometimes not willing to do pro bono work and when some of them do, they are not so diligent with their work. The Supreme Court condemned this attitude in the case of Udofia v State.88 It was the court contention that in capital trials counsel must realize that it a matter of life and death and must

78 ss 223-235 pt 25 Criminal Code Act c 77 LFN 1990, R v Ogor (1961)1 ALL NLR 70. 79 s 218 CPA and ss 187 and 161(3) CPC, Aremu v COP (1980) 2 NCR 315. Facts stated by the prosecution must support the charge to which the accused has pleaded guilty otherwise the Court shall not convict. See Abele v Tiv Na (1965) NNLR 425. Where the offence the accused has pleaded to can only be constituted by expert witness, such evidence must be tendered before he can be convicted on his plea. See Ishola v State (1969) NMLR 259, s 57 Evidence Act c 112 LFN 80 Sanmabow v The State (19670 NMLR 314 81 R v Ogo (1961)1 ALL NLR 70 82 ss 352 and 186 of the CPC and CPA respectively 83 s 9 Legal Aid Act LFN 1990 84 (1983) S.C.N.LR. 1 85 (1982) 1 NCR 27 86 (1988) 7 SCNJ 188 87 See also Okojie & Others v The State (1989) 1 NWLR pt 100 p 642 88 n 84

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assist the court in determining the case. Of great importance is the counsel’s duty to defend adequately the accused person. In everyday Nigerian courts, it is always expensive and cumbersome to get adequate legal representation in capital cases. Non Governmental Organisations and the Human Rights Community have done so much in helping accused persons but there is still room for improvement.

Under our penal procedures, provisions in respect of legal representation have been ignored. Amnesty International reports that women tried for capital offences under the Sharia Penal code in northern Nigeria in some cases had no access to legal representation during their first trial.89 The Penal Codes applicable in some of the Northern States with respect to Sharia do not make explicit mention of the right to legal representation of every accused person who is being tried. The Sharia Criminal Procedure of Sokoto State provides as follows

A legal practitioner shall have the right to practice in the Sharia Courts in Accordance with the provisions of the Legal Practitioners Act, 199090.

Amnesty International reports that Amina Lawal tried for the offence of zina (adultery), which is a capital offence in the first instance was without legal representation. Neither did the Court inform her of her right to legal representation.91 Cases like this are bound to occur in Sharia penal practices in the North. This arises out of illiteracy and poverty on the part of accused persons. (ii)Provision of an Interpreter An accused person is entitled to an interpreter without payment of any fees.92 Thus where an interpreter used in the trial was found to be incompetent to interpret satisfactorily, the convictions of the accused persons were set aside by the Supreme Court. 93 The courts have respected these provisions. But following introduction of Sharia penal rules, there have been cases where the Sharia lower court did not adhere to this provision. Amnesty International reports that Amina Lawal was tried without an interpreter. She did not understand the proceedings of the court. It later became one the grounds for setting aside her conviction.94 (iii)Examination of Prosecution Witnesses An accused person has a right to examine witnesses of the prosecution.95 Where therefore a trial court did not allow the accused the opportunity to cross-examine adequately each prosecution witness, it is a sufficient ground to set aside a conviction. The Supreme Court held in Tulu v Bauchi N.A96 that this amounted to a breach of the provisions of section 36 of the Constitution. (iv)Right to a Fair Hearing This is guaranteed by section 36(4) of the 1999 Constitution. This right is better summed up in the two traditional maxims that are: audi alterem partem (the other party must be heard) 97and nemo judex in causa sua (a person shall not be a judge in his own case); in which case, there must be freedom from bias. In determining whether or not there is a likelihood of bias, it has been laid down that the test is that of a right thinking member of the society. If the circumstances are such that a right thinking member98 of the society will go away with the impression that there is a likelihood of bias, the judgment of the court will be set aside even if there was in fact no bias. This draws from the time hallowed principle of law that justice must not just be done but must manifestly and undoubtedly seen to be done. 3. Rules of Evidence The Evidence Act guides rules of evidence in capital cases and indeed in all criminal cases99. Rules of evidence fall within the exclusive list and as such under the legislative ambit of the National Assembly.

89 Nigeria: The Death Penalty and Women under the Nigeria Penal System Amnesty International Report on Nigeria (February 2004) 90 s 191(1) Sharia Procedure Code Law 2000 Sokoto State. 91 Amnesty Report on Nigeria (February 2004) 92 s 36(6)(e) 1999 Constitution 93 Ajayi &Anor. v Zaria N.A (1963) 1 ALL NLR 169 94 Amnesty report on Nigeria (February 2004) 95 s 36(6) (d) 1999 Constitution. 96 (1965) NMLR 343 97 By extension he must be given adequate enabling environment to speak and be heard. See R v The University of Cambridge(1723) 98 Garba & Ors v The University of Maiduguri (1986) 2 SC. 128 99c 112 Laws of the Federation of Nigeria 1990

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The onus of Proof in criminal matters falls on the prosecution100. The burden of proof in criminal cases in Nigeria is beyond reasonable doubt.101 The Supreme Court in the case of Aruna v State102 emphasized that in our system of administration of criminal justice, the burden is on the prosecution to prove the case against the accused person beyond reasonable doubt. It is the duty of the prosecution to establish the guilt of the accused person. The burden never shifts. This according to the court is emphasised by the constitutional right of the accused to be presumed innocent until proven guilty. The Evidence Act attempts to protect the case of the accused from being prejudiced. In that respect, the Act has numerous provisions, which include but not limited to the following (i)Evidence of Bad Character/Previous Conviction The Act provides in section 69(1) as follows

Save as provided in this section, the fact that an accused person is of bad character is irrelevant in criminal proceedings.

Evidence of bad character can only be admissible under the circumstances outlined in subsection (2) of this section. Such circumstances include when the accused has given evidence of his good character and when the bad character of the accused person is a fact in issue.103 The rationale behind this provision is to protect the accused from being punished or his case determined on the grounds of, not the facts of the case, but what he may have done in the past. (ii)Protection from self-incrimination The Act provides in section 160(1) 104 as follows

(a) a person so charged shall not be called as a witness in pursuance of this section except upon his own application

(b) the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution

(c) a person charged and being a witness in pursuance of this section may be asked any question in cross examination not withstanding that it would tend to incriminate him as to the offence charged

(d) a person charged and called as a witness in pursuance of this section shall not be asked and if asked, shall not be required to answer any question tending to show that he has committed or been convicted of or been charged with any offence other than that where with he is charged or is of bad character

The provisions of this section are to protect the accused’s case from being jeopardised by admissions that the accused might make in answering such questions that tend to show that he has previously committed an offence or is of bad character. (iii)Admissibility of Confessional Statement Before a confessional statement is admissible under the Act, it must be proven before the open court that it was made voluntarily. The court in R v Ajege and anor amplified this105. The whole of the confession must be tendered in evidence and the prosecution must prove that it was made voluntarily106. Where the accused alleges that he was forced to make the confession, the Court held in Adamu v AG Bendel State107 that a trial within a trial must be conducted to ascertain the veracity of such a claim.

There have been cases where the Police would torture an accused and make him write a confessional statement and in court the accused would not be able to prove undue influence; this has resulted in many wrongful convictions, such as the case of Arthur Onyejekwe who was recently released from death row. The onus of proving that a confessional statement was made under duress lies on the

100 s 136 of the EA, Adegoke v Adibi (1992) 5 NWLR pt 146), 578 101 Section 138 (1) EA, Adamu v State (1991) 4 NWLR pt 187, 530 102 1990 6NWLR pt 155, 127 103 When an accused gives evidence of his good character it is assumed that he has put himself up to attack on his character. Chukwueke v State (1991) 7NWLR pt 205, 604 104 Asanya v State (1991) 1 NWLR pt 180, 422 105 (1935) 2 WACA 353, Obidiozor v State (1987) 4 NWLR pt 67, 48 SC. 197/86 106 ss 27 and 28 EA 107 (1986) 2 NWLR 44

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accused person and discharging that onus is very difficult. It is only when duress is proved by the accused that the court can reject the confession108.

The practice of the Sharia courts with respect to Sharia penal laws in some cases conflict with the provisions of the Evidence Act. Amnesty International reports 109 that there is a problem with evidence in relation to women under the Sharia penal codes as regards confessions. Under the Zamfara Sharia criminal procedure and in some other procedure codes in the North, a confession in the absence of any corroborative evidence can be used to secure a conviction. Amnesty International states further in their report

Although both systems of Criminal Procedure impose formal duties on the police and courts to ensure that all evidence is obtained free of duress, the reality is that there is a long history of torture and ill treatment of people in custody by vigilante groups in order to endorse the new Sharia penal legislation110. With respect specifically to women, there is also strong social pressure exercised against women accused of trespassing rules and norms relating to their sexual/gender role in society. Confessions that have been obtained in such circumstances will increase the incidence of unsafe convictions.

According to the Amnesty report, the Maliki interpretation of Sharia in Nigeria regards pregnancy as sufficient evidence to convict a woman for zina111. The oath of a man denying sexual intercourse with the woman is considered sufficient proof of his innocence unless four independent and reputable eyewitnesses declare his voluntary involvement in the act of sexual intercourse.

The disparity in the quantum of evidence required to convict a man for zina with that required to convict a woman is in conflict with the provisions of the Evidence Act with respect to burden of proof112 and the provisions of chapter 4 of the Constitution113. 4 Attitude of the Court The courts in Nigeria are dispassionate in their application of capital punishment and in capital proceedings. They follow the wording of the law to the letter. This attitude sometimes makes the courts too rigid in considering special and peculiar circumstances that require some flexibility114.

There have been cases where the court allowed extraneous issues not related to the case to influence it. Edmund Okoro115maintains that he was sentenced to death not on the strength of evidence before the court but simply because they were accused of threatening the life of the Judge during the trial. The number of wrongfully convicted people in Nigeria suggests the need for the courts to be more attuned to plight of the accused and not to follow the law blindly. 5. Special Trial Proceedings

108 Confessions are most of the time purportedly made in the presence of only Police officers. It is very hard to prove that an accused made the confession under duress since there are no witnesses to back his story up. It is only in certain exceptional cases that the accused can prove duress. 109 Amnesty International Report on Nigeria (February 2004) p 23 110 Amnesty International Nigeria: Security forces: Serving to protect and respect human rights?’AI Index AFR 44/023/2002, pp185-186 111Contrary to today’s Sharia penal codes, classical Sharia law required four witnesses to be produced in order to prove a woman guilty of Zina. The reason for this requirement was to protect women from false accusations of having committed Zina. According to the Quran Surah An-Nur 24:23

And those who launch a charge against chaste women and produce not four witnesses flog them with eighty stripes and reject their evidence ever for such men are wicked transgressors.

Hence, the Maliki interpretation as represented in the Sharia penal code in Northern Nigeria discriminates against women. See also Iman, The Stipulated Punishments (Hudud) in Sharia and their Significance, (unpublished paper, 8 July 2002). 112 ss 135-138 113 s 42 of the Constitution 114 The court rarely grants bail in capital offences even when there are pressing circumstances that should require bail, like in cases of ill health. In some respects, the court is constrained by law from being flexible. When the ingredients of a capital offence are proven, the court has no discretion in handing down sentence. 115 He was on the death row for 18 years before the Court of Appeal, which saw no case against him, found him innocent.

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Under the Children and Young Persons Law applicable in various States of the Federation, the following special provisions and procedure applies to children and young persons.116

A juvenile may be a child or a young person. A “child” means a person under the age of 14 years, and a “young person” means a person who has attained the age of 14 years and is under the age of 17 years117.

In State v Nwabueze118 the court held that a person under the age of seven is not criminally responsible for any act or omission. Also a person under the age of twelve years is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had the capacity to know he ought not to do the act or make the omission.

A juvenile who is standing trial for a criminal offence is tried in the Juvenile Court119 except in the following cases

1. Where the charge is one of homicide, the court will hold preliminary enquiry to establish that there is a prima facie case against the accused person120and the case is then transferred to a High Court.

2. Where the juvenile is charged jointly with an adult the trial shall take place in the regular court. In the trial of a young offender, the identity of the offender is not to be published without leave of the court;121 Expressions like ‘conviction’ and ‘sentence’ are not to be used122; and the young offender cannot be sentenced to imprisonment if he can be suitably dealt with in any other way. An offender who in the opinion of the Court has not attained the age of seventeen at the time of the offence shall not be sentenced to death123. Where age is in issue, the court shall make due enquiry and may take such evidence as may be forth coming including the production of a birth certificate or a certificate signed by a government medical officer. The age as determined thereafter by the court shall for the purpose of the laws, be deemed to be the true age of the person124.

In Modupe v The State125, the Supreme Court held that by virtue of section 386 CPA if the evidence on record shows that at the time the offence was committed, the accused charged with a capital offence has not attained the age of 17 years, it would be wrong of any court not only to sentence him to death, but also to even pronounce such sentence.

The protection offered young persons in our penal law regime falls below the international standards, which protect a person below 18 from being sentenced to death. The Convention on the Rights of the Child provides

[N]either capital punishment, nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.

This has become the international standard and the practice in Nigeria falls short of this standard. Moreover some other laws in Nigeria view a person under 18 as a child but such reasoning is not extended to criminal proceedings126.

Under Sharia penal procedure the age when a person attains legal and religious responsibility is commonly regarded as being the age of puberty and is therefore widely variable. Young people stand the risk of being convicted for capital offences in spite of the protection offered by the law. It is very important to point out that there are no constitutional provisions on the right of the child with respect to the imposition of capital punishment. This has created room for divergent practices in various penal jurisdictions.

C. Post Trial

116 Each state of the federation has its own version of Children and Young Persons law 117 S 2 CPYL Lagos State and s 30 Criminal Code Law Lagos 118 (1980) 1 NCR 41 119 A Juvenile Court is constituted under the CYPL of the various states with the sole jurisdiction to try all offences against young offenders. 120 s 8(2) CYPL Lagos State 121 s 6(5) CPYL Lagos 122 s 16 CYPL Lagos 123 s 39(1) of the Criminal Code Act, s 363 CPA 124 s 29CPYL Lagos, section 208 CPL, R v Oladimeji (1964) NMLR 31 125 (1988) 4NWLR 130 126 Constitutional provision on voting set out the right to vote from age 18, implying that a person under 18 is a child.

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1. Appeal An appeal against a death sentence is of right127. An appeal against a death sentence handed down by the High court lies to the Court of Appeal and from the Court of Appeal to the Supreme Court128. An appeal takes up to six months or even more in some circumstances.

In the Sharia penal procedure, appeal lies from the Lower Sharia Court to the Upper Sharia Court. The Sharia Criminal Procedure of Sokoto state provides

Whoever is dissatisfied with the order, ruling, decision or judgment made by a Sharia Court may appeal to the Upper Sharia Court sitting in its appellate jurisdiction129.

Appeal from the Upper Sharia Court lies to the Sharia Court of Appeal in each of the 12 States and if the state in question has no Sharia court of appeal, the case may be transferred to another court of coordinate jurisdiction in another of the 12 states. When the judicial remedies in the state are exhausted, the case can then be taken to the Court of Appeal.

Funding is one of the major reasons that restrict access to appeal. Again, the delay in the appeal process, which further heightens the cost of the appeal, discourages a lot of defendants from going on appeal. Illiteracy is another factor that contributes to the lukewarm attitude of the accused persons to the appeal process. 2. Implementation of Sentence After the appeal processes are exhausted, the judgment file is forwarded by the trial Judge with a recommendation whether to endorse the sentence or to commute it to the Chief Executive of the State or the Federal Government depending on whether the crime is a state or Federal crime130. When the Governor or President signs, the files are registered with the Sheriff and then forwarded to the prison authorities. The prison authorities will then read the same to the Prisoner and effect execution131.

Without the assent of the Governor of a State or the President as the case may be, no execution can be carried out. There is much reluctance on the part of the executive to sign death warrants. It takes more than 7 years and in some cases 20 years to get the executive assent.132 Therein lays the problem of delay and long stays on death row.A person convicted in Nigeria has the right to seek for parole. Such application is made to the Prerogative of Mercy Committee. 3. Mode of Execution There are three major modes of execution in Nigeria which are hanging, firing squad and stoning:

(i) Hanging

This is the most common form of execution in Nigeria. A rope is tied round the neck of the convict and he is made to drop a certain distance and this forces the rope to tighten forcefully and excruciatingly so much so that it causes death by damage to the spinal cord or asphyxiation.133

(ii) Shooting.

In Nigeria, special tribunals such as the Robbery and Firearms Tribunals may sentence a person to death penalty by firing squad. This method of execution, which leaves the dead convict a battered and bloody

127 s 241(1)(e) of the Constitution 128 233(2)(d) of the Constitution 129 s 233((2) of the Sharia Criminal Procedure Code Law 2000 of Sokoto State. There are similar provisions in other Sharia criminal procedures in other states. 130 The Chief Executive is not bound by this recommendation. In practice the Prerogative of Mercy Committee actually reviews the sentence and recommends to the Chief Executive. The whole process of execution of sentence is covered by pt 40 ss 370 – 375 of the Criminal Procedure Act c 80 LFN 1990 132 Peter Nemi (n 42) 133 s 367(1). s 367(2) provides for the exact words to be used in sentencing ‘the sentence of this court upon you is that you will be hanged by the neck until you be dead and may the good lord have mercy on your soul’.

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mess, is a bequest of Military rule, which is characterized by brutality, and gross abuse of human rights134.

(iii) Stoning

Execution by stoning is carried out only in Islamic countries and under Sharia penal laws. If a married Muslim commits adultery, then Rajam (stoning to death) is the penalty. Rajam is not Quranic but was practised by Prophet Mohammed. A man is to be buried up to his waist and a woman to above her chest. The stones must not be too small or death may not ensue. Nor must the stones be too big or death may come too quickly135.

The mode of implementation of sentence in Nigeria falls below international standards which imply that in execution of a capital sentence effort should be made to inflict minimum pain on the convicted person. It is the contention of the human rights community that the modes of execution in Nigeria are crude and inhuman and must be reviewed. Sometimes during execution in Nigeria, it takes time before death occurs. The accused must have gone through so much pain.136 The Supreme Court obiter in the case of Onuoha Kalu v State137 implied that there were enough grounds to question the propriety of the modes of execution in Nigeria. The court declined taking any stand on the grounds that such a question was not before the court. HURILAWS is presently in the Federal High Court questioning the constitutionality of the modes of execution against the background of section 34 of the Constitution, which guarantees that no person shall be subjected to torture, inhuman, and degrading treatment.

4. Prison Conditions There are three major classes of Prison inmates in Nigeria. They are the death row inmates; awaiting trial inmates; and the convicted inmates (for non capital offences). Awaiting trial inmates constitute more than 70 percent of the prison population in Nigeria. The state of Nigerian prisons is deplorable and falls below every standard required by law and international instruments. (i) Overpopulation One of the greatest problems with the Nigerian prison system is overcrowding. The practice of holding charge138, which accounts for more than 70 percent of awaiting trial inmates in Nigerian prisons; delay in trial process; and insensitivity on the part of the Government account for the unhealthy overcrowding in Nigerian prisons. The Nigerian Special Rapporteur on Children to the Nigerian National Human Rights Commission reports that the prison Facility in Ikoyi Prison is for 800 inmates; today a population of 1804 inhabits the place. This condition heightens the rate of infections and epidemic in the Prisons. The situation in Ikoyi Prison is identical to the situation in other prisons in the country.

There is lack of adequate facilities in the Prison to address the ever-increasing need of a growing prison population. Facilities in Prison especially in the area of housing are not improved to accommodate the needs of inmates. The resultant effect is that the Prison is a dumping ground of suspects and convicts alike in a housing facility that contradicts and infringes every right accruable to a human person and prisoners in particular. (ii) Inadequate Health Facilities Of very great concern is the absence of adequate health facilities in our prisons. Prison inmates complain that in some cases it is hard to find first aid kits to address primary health cases. In spite of the absence of health facilities, it still takes a while before serious cases are referred to hospitals. In some cases, simple health situations escalate into terminal cases due to lack of primary care. The basic health requirements of prisoners and ‘innocent’139 men in the prison are not taken care of. In the recent case of Mr. Morris Ibekwe, he died of complications resulting from a kidney condition because he was not referred to the hospital early

134 This was introduced by the Robbery and Firearms Decree No 5 of 1984, formally Robbery and Firearms Decree of 1970 135A pregnant woman should not be executed until after the birth of the child. 136 In some executions, death comes so slowly. There are cases where the rope is too weak to hold the body. Death occurs after much trial and error. 137 Onuoha ( n 41) 138 The practice of remanding capital offence suspects in prison pending completion of police investigation 139 Awaiting trial inmates are presumed under our laws as innocent until proven guilty before a competent court. s 36(5) of the 1999 Constitution.

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enough, due to court bureaucracy and the inability of the health officials in the prisons to push his case.140 There have been many cases of mental trauma and derangement on the part of prison inmates due to harsh conditions and inadequate health care. (iii) Attitude of Prison Officers In a recent public forum on the death penalty in Lagos Nigeria, the greatest proponents of death penalty application turned out to be the prison officials. One of the top prison officials spoke with so much passion and informed the public that they do not know what terrible things and people are seen in the prisons. My summation of their disposition is that they see prisoners as failures that are almost irredeemable. This prejudiced orientation accounts for the brutality and insensitivity on the part of prison officials towards prisoners. Stories abound by former prison inmates of the untold hardship they go through at the hands of some wicked officials. Arthur Onyejekwe’s death sentence was commuted to 20 years imprisonment but even when he was due for release, some prison officials in Enugu hid his file and made him spend one more extra year in jail. The Federal High Court141 in Enugu granted him damages worth one million naira for his illegal detention.

This is not a blanket condemnation of the activities of prison officials but is meant to portray the inadequacies within the rank of prison staff, which has resulted in avoidable hardships suffered by inmates. The structure of the prison services is not adequately formulated to properly protect and enhance prisoners. (iv) Education and Skill Acquisition Facilities One cardinal aim of punishment is to reform and rehabilitate offenders. The Nigerian prison system is lacking in this regard. The level of recidivism experienced in Nigeria portrays the inability of the prison experience to afford an improved orientation to the offenders. There are inadequate or a total absence of educational facilities in our prisons. In a letter written to HURILAWS from Oji River Prisons in Enugu State Nigeria, prisoners complain that they have been turned into labourers for the private farms of prison officers.142 They decried the fact that the prison conditions are not such that can help them improve their skills or talents. This kind of dismal report comes from other prisons. In spite of the activities of NGOs, the situation is still very bad calling into question the whole philosophy behind punishment in Nigeria. The whole establishment leaves much to be desired. 5. Wrongfully Convicted Persons The 1999 Constitution provides in section 35,

Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with the provisions of the law; (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty

Section 33 of the same Constitution while guaranteeing the right to life made some qualifications to that right,

save in the execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.

Section 35(6) in what could be the only remedy offered by the Constitution for infringement of one’s right to liberty provides,

Any person who is unlawfully143 arrested or detained shall be entitled to compensation and public apology from appropriate authority

140 He was standing trial for a bailable offence, obtained by false pretence; the court refused to grant him bail and when he was finally rushed to the hospital it was too late to save his life. Incidentally, he was a serving member of the National Assembly. 141 Arthur Onyejekwe v Comptroller Nigerian Prison Services and ors. (unreported) 142 For the protection of our source, I shall not mention names or dates 143 Emphasis mine

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An analysis of this provision shows that the rights to life and liberty enshrined in our Constitution can be breached following a competent order of court. It does not matter that such an order in fact is wrong. The laws have not adequately addressed human error and mistakes experienced in our justice system. The question that is begging for answer is what happens when a person is wrongfully convicted? A competent order of court could be wrong. Availability of evidence, the competence of a defence counsel and the investigations of the police which in most cases are not diligently done are some of the variables that determines who gets convicted. It is prone to error. The law in Nigeria has not made any provision to guarantee the right of wrongfully convicted persons. It has been argued that such inference can be drawn from the guarantee to the right to liberty proclaimed by our Constitution.144 This argument is yet to be tested in court but there are no mechanisms on the ground to address the injustice of wrongfully convicted persons. With respect to capital punishment, the law has not recognized the possibility of executing an innocent man and if such happens, the law is silent on what should come next.

The court of first instance for murder convicted Edmund Okoro; his appeal due to a change in Government and other unfortunate exigencies was not heard until 17 years later. The Court of Appeal sitting in Port Harcourt Nigeria found him innocent145. He had spent 18 years on death row for an offence he did not commit. Today everybody in Nigeria is clamoring that he is entitled to compensation. HURILAWS is taking up his case not just to plead for his cause but also to get a judicial pronouncement on the issue of wrongfully convicted persons in Nigeria. 6. Extra Judicial Killings The Police are given wide discretionary powers by the law in matters of arrest. A Police Officer can arrest any person without warrant when he reasonably suspects a person to have committed an indictable offence.146 In making this arrest, when there is a reasonable apprehension of violence, or an attempt to escape or that restraint is necessary for the safety of persons arrested, then such a person arrested can be restrained147. The Police have exploited these provisions on many occasions.

From facts on the ground and testimonies of victims, some trigger happy Policemen kill suspects for no just cause and hide under the excuse that such a person is trying to escape arrest. In some cases it has been argued that the Police shoot innocent people in order to protect the actual culprits. Arthur Onyejekwe reports that during his detention he witnessed the death of a suspect who was tortured to death and later the police told the public that the suspect was trying to escape from detention. Lawrence Onyo in his testimonies recounts how on several occasions he was taken out of the Police cell and asked to leave the Police station. On each occasion he refused to leave. The police latter informed him that he was lucky and that he would have been a dead man if he had accepted the invitation to walk out of the Police station. Some other suspects have not been as lucky as Lawrence.148 There is no mechanism to enquire into the actual cause of some of these killings; if such mechanisms are there, they are rarely put to use. Nigerians lose their lives every day in the hands of the Police and the Police in many cases cover it up under the excuse that such persons were trying to escape from arrest for a capital offence.

Aside from killings by the Police under the pretext of effecting arrest or checking the escape of prisoners, there have been cases in Nigeria of killings by the Police for unfathomable reasons. In Nsukka in Enugu State South East Nigeria, the Police detained two teenage boys two years ago for an offence, which was not clearly stated. When the parents came to find out what the problem was and possibly bail their kids, the Police informed them that they had been released. The kids were later found dead with some vital organs of their body missing. They had been used for rituals. Information from some of the good cops in the station indicted that the police were responsible for this dastardly act. Today nobody has been prosecuted for the crime and the major culprit who is the Divisional Police Officer, one Mr. Gambo, is still at large149.

The State in Nigeria has been indicted for murder in capital offences pending appeal. In Oyo State Nigeria, the court of first instance sentenced Nasir Bello to death; while awaiting his appeal, he was executed by the State. This act was condemned by the Supreme Court, which reiterated that execution of

144 s35 145 Edmund Okoro and ors v The State case No FCA/PH/170/98 146 s10 CPA 147 s 4 CPA, ss 31and 37 CPC. The restraint envisaged under this section includes the shooting of the suspect especially in capital offences to stop him from escaping. This might result in death and it is permissible under the Act. 148 The complete testimonies of these mentioned individuals will come out soon as a book. 149 The Civil Liberties Organization is championing the fight for justice on this matter. Nigerians are all calling for justice. Further information on this can be sourced from the Civil Liberties Organization’s website.

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sentence by the State must follow the due process of law. The court awarded damages but the truth is that the life of Nasir cannot be brought back150.

Some other militia groups in Nigeria have wreaked untold abuse on the rights of individuals. Under the sponsorship of Anambra State Government in South East Nigeria the Bakkasi Group, a vigilante group established for crime prevention, killed a lot of people. They served as the jury and prosecutor and their judgment was always instant and punishment immediately carried out. There is no specific data on the number of people they killed but I can hazard a guess that more than two hundred people lost their lives during the reign of terror of the Bakkasi boys, including my cousin who was hit by their stray bullet and nothing was done to give him adequate medical attention but rather he was dumped in the Niger river.151 This group has been disbanded. In Lagos State Nigeria, the activities of the Odua People’s Congress are going unchecked. Their torture camps in Mushin Lagos are still flourishing and almost on a daily basis suspected robbers and thieves are killed by this group. The Police allegedly condone their activities in consonance with the Lagos State Government.

This is not an exhaustive list of the cases of extra judicial killings in Nigeria. The truth is that Government has not done enough to check this and by extension the right to life guaranteed under our Constitution and other international documents is not being respected in Nigeria. 7. Victims of Crime The general trend in Nigeria is that in the trial of capital offences and indeed in all criminal offences, the court has the duty of implementing what I choose to call the theory of tripartite justice: justice for the accused; justice for the deceased (primary victim) and justice for the society, in the words of Oputa JSC, ‘whose moral ethos has been desecrated by the act of murder152’.

The law recognises the need to give a crime victim a role in the state’s quest for justice. Sadly, this role does not go beyond making the crime victim a complainant in the case or informing him of the progress of the case. Criminal prosecution in Nigeria is the duty of the Government. A private prosecutor could proceed with the case. In Lagos State it is limited to the offence of perjury and non-indictable offences153. Moreover, such a private prosecutor must obtain a fiat from the Attorney General. The Attorney General is empowered by law to take over, institute, and discontinue at any stage any criminal proceedings that may have been instituted by any other authority.154 The emphasis on victims’ rights refers only to procedural matters in the trial of the convict. The attendant psychological and emotional torture experienced by both the primary and secondary victims of crime in respect of capital offences has not been addressed either by law or by practices in Nigeria.

There is no structure in place to address the emotional and economic needs of secondary victims of crime. The tripartite justice practiced in Nigeria shows insensitivity to the plight of the secondary victims of crime. The penal laws did not provide for compensation for victims of crime. This is a grave lacuna in the criminal justice delivery system in Nigeria. Victims of crime must be accorded protection from intimidation and pain occasioned by the act of murder or any other crime. There is no provision with respect to restitution. The proper approach to criminal justice delivery especially capital offences, is the quadripartite approach: justice for the convict; justice for the society; justice for the deceased and justice for the secondary victims (relations and dependants). It is only a balanced justice system of this sort that can guarantee fairness and faith in the criminal justice delivery system. Justice in this context should not just be a mere directive on paper but a practical concept, which must adequately take care of the psychological, financial and moral needs of the victims and society.

CHAPTER FOUR

TRENDS IN HUMAN RIGHTS AND THE DEATH PENALTY

A. The Reawakening 150 Nasir Bello v AG Oyo State (1986) 5 NWLR pt 45 p828 151 Chukwu Ebuka Okereke was killed by the negligence of Bakkasi Boys who refused to give him medical attention when he was hit by their stray bullet. The Government admitted their liability but to date nothing has been done to compensate the family. 152 In Josiah v State (1985) 1 NMLR pt 1, 141 153 Ateke v Afejuku (1996) NSCC 154 ss 174 & 211 of the Constitution. The power relates to Federal and State crimes. With respect to Federal offences it is exercisable by the AG of the Federation and with respect to state offences, exercisable by the AG of that State.

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The history of democracy in Nigeria has been blemished by military interludes. Such military intervention has always visited the nation with flagrant abuse, repression and disregard for human rights. This is exemplified by the draconian decrees, which oust the jurisdiction of the court and allow the Military Government unfettered powers to trample on human rights. The resultant effect of this military dictatorship is that more than ever, the people agitate for the recognition of their rights as enshrined under the Constitution. The struggle by Nigerians to divest themselves of the draconian cloak of military dictatorship heightened the awareness of people with respect to their human rights. The era of the Abacha regime, which lasted from 1993 to 1998, saw the greatest resistance by Nigerians to autocratic rule. The support of the international community and organisations in this era further amplified the awareness of the people as regards to their rights and the need to fight for its enforcement.

Perhaps one can rightly say that the greatest sensitisation ever experienced in Nigeria with respect to human rights was during military regimes. The sensitisation was not initiated by Government policies but by the pressing need on the part of the people to protect themselves from the evils of human rights abuses under the military. The writer is not suggesting that the human rights situation is perfect or that democracy provides an adequate answer to human rights questions, but rather that the structural recklessness experienced under the military dispensation tended to awaken the people and human rights groups to the imperatives of human rights.

The world is fast growing into a global village, the ever-improving trend in human rights issues the world over is not lost on the practices in Nigeria. The Constitution of 1999 has more provisions on human rights than the 1979 Constitution. The establishment of a National Human Rights Commission was for the first time guaranteed by the Constitution. This portrays a positive growth in human rights practices. This growth is influenced by various international conventions on human rights, which are models for every nation. The activities of non-governmental organisations in promoting and protecting human rights are some of the reasons for improved human rights orientation. The truth of the matter is that the human rights situation in Nigeria is better than it is used to be. It is pertinent to point out at this juncture that in Nigeria’s 43 years of independence more than 25 years were spent under military dictatorship. In Nigeria today, the number of NGOs working in the area of human rights is not readily ascertainable because of the large number of such organisations. Today, the thrust of human rights has shifted from the traditional orientation of human rights to developmental rights and an enlarged interpretation of the right to life, which now incorporates the rights to live a good life. Economic rights are now a major area of interest to NGOs. Civil societies are now involved in drafting policies that will build a solid human rights structure instead of just criticizing Government. This new trend is underscored by the participation of civil society in policy formulation, legislative advocacy and ever growing engagement of Government in human rights issues.

B. Abolition Struggle. The Military Regime as we earlier stated engaged in the violation of human rights which sometimes resulted in the imposition of capital punishment for offences with retroactive effect; establishment of special tribunals which cannot be exonerated from bias and swift application of death sentence without any referral structures. Prior to 1970 the Penal Code and the Criminal Code had provisions with respect to capital punishment. The Robbery and Firearms Decree of 1970 for the first time made armed robbery a capital offence punishable by death. It also introduced public execution by firing squad. Under the military, many other capital offences were created. Of much notoriety was the Drug Trafficking (and other related matters) Decree155, which had a retroactive effect and saw to the death of three young men who were arrested for drug trafficking when it was not a capital offence. Ken Saro Wiwa and five others were convicted for murder by a special military tribunal, which was very biased. There was no right of appeal and they were killed hours after the sentence was passed. The international community condemned this state murder but nothing could bring back the lives of these men. Many other Nigerians lost their lives for offences and a trial process, which leaves much to be desired. In spite of the public outcry nothing could bring back those lives. The impunity of military killings was one major factor that heightened the realization of people to the effect that the trial process in capital offences is not transparent enough and errors in the process can lead to loss of lives and that cannot be reversed.

Aside from the inadequacies visible in the Military era, the post military era also has a defective justice system, which cannot adequately effect a proper justice delivery service. The justice consumers and key players alike agree that the criminal justice system in Nigeria is not transparent and fair enough to determine the question of who dies or lives. The inadequacies of the justice system also informed the reasoning that the death penalty should be abolished since the institutions that enforce it cannot reasonably

155 Decree No 20 of 1984

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be said to be insulated from mistakes. Our analysis of the criminal justice institutions portray a defective structure and practices which need to be overhauled The introduction of the death penalty for armed robbery in Nigeria, which was targeted at reducing the increasing cases of armed robbery in the country, did not result in any remarkable reduction in armed robbery cases. This calls into question the often-touted theory that capital punishment serves as a deterrent. According to an UN survey,

Research has failed to provide scientific proof that executions have a greater deterrent effect than life imprisonment and such proof is unlikely to be forthcoming156.

This assertion is exemplified by the story of capital punishment application in Nigeria with respect to armed robbery. This realisation was another facilitating factor that saw to the quest for abolition. In Nigeria one rarely sees the execution of rich people. From research conducted by HURILAWS, the application of the death penalty affects mostly the poor, illiterate and people who are not connected to Government officials. This trend portrays discrimination against a certain class of Nigerian citizens. The unfairness of this practice made human rights activists realize the folly of death penalty application.

The realization of the divergence between our cultural practice and imported western capital punishment was another facilitating factor. The arguments on death penalty must not be removed from the cultural practices of Nigerians before the advent of the colonialists. In our tradition, life is sacrosanct. The whole idea of communalism as practiced by, not just Nigerians but the majority of the indigenous African tribes stems mainly from the practice of ‘being your brothers keeper’. The concept of capital punishment as practiced through the instrumentality of our faceless justice system is opposed to our cultural justice system which is and has always been a deliberation of brothers, transparent enough to protect justice and humane enough to show brotherliness. It is not in our character to take life for reasons that are defective. Banishment has always been the more popular punishment for grave offences. Capital punishment as practiced in Nigeria is an importation that is greatly opposed to our traditional way of life.

The death penalty in Nigeria has been used as a political tool to quell oppositions. The death of Ken Saro Wiwa, an environmental rights activist who got on the bad books of the then military government because of his fight for the respect of the environmental rights of the Ogoni people in the Niger Delta, a major oil producing community in Nigeria was a painful realization of the evils of death penalty application. On the strength of the above, the campaign against the death penalty application was gradually building. The human rights communities first channelled efforts in the area of justice sector reforms. This brought about massive jail delivery programmes aimed at releasing prisoners who were wrongly detained. There was an effort to initiate reforms in the key institutions of the criminal justice sector.

A major stride was made in the abolition struggle when HURILAWS in the case of Onuoha Kalu v State157, questioned the constitutionality of death penalty application under the 1979 Constitution. This case generated much furore in the country. The Supreme Court invited all the Attorney Generals of the states and other reputable legal practitioners as amica curiae. The Supreme Court pronounced that the death penalty was constitutional and suggested that it can be reformed through legislative advocacy. Another historical case is the case of Peter Nemi v State158 where it was canvassed that death row inmates have fundamental rights and the abuse of such rights should be a mitigating factor in the application of the death sentence on such people. The effort of HURILAWS in this case, which was novel, saw the court affirming that the fundamental rights of death row prisoners must be respected. Presently HURILAWS is in Court questioning the constitutionality of the modes of execution in Nigeria in the light of section 34 of the Constitution, which guarantees that no person shall be subjected to inhuman and degrading treatment.

In light of the advice of the Supreme Court, HURILAWS drafted and submitted to the National Assembly, a Death Penalty Moratorium Bill159. The passage of the bill will enable the Government to embark on an urgent review of death penalty cases in Nigeria and the cases of death row inmates. It calls for a moratorium on the death penalty pending this review and subsequent recommendations to the Government. Civil society is pushing for the passage of this Bill.

These and other activities of the human rights community paid off to a large extent. The Presidency recently inaugurated a death penalty study group to conduct public hearings, research and make recommendations to the Government on the application of death penalty in Nigeria. The Presidency has inaugurated another committee to look into the cases of death row inmates all around the country and make

156 Roger Hood Death Penalty: A Worldwide Perspective (Oxford University Press 2002), 230 157 Onuoha (n 41) 158 Peter Nemi (n 42) 159 A copy of the Moratorium bill can be sourced from www.hurilaws.org

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adequate recommendations thereto. The stand of the human rights community is that the study group should recommend abolition of death penalty. It is believed that the advocacy campaign and public enlightenment embarked upon by the civil society will go a long way in influencing the recommendation of the study group.

C. Public Opinion and Belief, and the Application of the Death Penalty A recent opinion poll conducted by Darr Communications, owners of Africa Independent Television and Ray Power FM showed that 70 percent of Nigerians are in support of capital punishment. This popular support for death penalty application is predicated on a number of reasons. Chiefly amongst this is the erroneous belief that the application of death penalty serves as a deterrent. This assumption, on scientific evaluation, turns out to hold no water.

The natural inclination to revenge is another important factor that contributes to the people’s tilt towards capital punishment. Human beings in most cases pay back evil with evil. There is the animalistic push to inflict pain on people that hurt us. This trend is manifest in almost every part of the world where secondary victims of capital crime clamour for the application of death penalty on the convicted persons.

Religion plays another important role in the attitude of the public to capital punishment. While most Christians are inclined to support the abolition of the death penalty, Muslims have stated that they see it as a direct assault on their religion, which they claim, is very much in support of the death penalty. This orientation that the death penalty is a fundamental dictate of their religion has proved to be one of the major impediments towards achieving abolition of the death penalty.

The enumerated inadequacies of our criminal justice system are not known to the average Nigerian. People are yet to understand that not everybody that is held by the police is a criminal. There is this insensitivity by Nigerians to what happens in the criminal justice system especially with respect to the courts and prisons. For a whole lot of Nigerians, prisoners are evil.

In summary more than 70 percent of Nigerians believe in the effectiveness of the death penalty and that a person who kills should be killed on the grounds of retributive justice. The various other elements of punishment, which has to do with rehabilitation and integration, are not the concern of most Nigerians when it comes to capital offences. It is important to state at this juncture that the activities of ethnic militia were really barbaric and Nigerians applauded their crude delivery of punishment by way of extra judicial killings. A lot of people are of the opinion that this is so because of the very dastardly activities of the robbers. The point here is that Nigerians believe to a large extent in the effectiveness of the death penalty.

D. Obstacles in the Effective Application of International Standards. 1. Domestication and ratification procedure The major obstacle to the effective application of international standards in Nigeria is the long process required to incorporate and domesticate international treaties. From our discussion, it is only when these treaties are domesticated that they can be enforced in our courts160. The process for domestication is really cumbersome. Aside the passage of the law by the National Assembly under section 12(1) of the Constitution, the Constitution stipulates in section 12(3) that such a bill passed under the concurrent list with respect to ratification of treaties shall not be presented to the President until such law is ratified by a majority of all the Houses of Assembly in the Federation.161 This ordinarily will take a long time to achieve and there is even a possibility that such a project will be abandoned midway. 2. Lack of political will The political class in Nigeria have always adopted a lukewarm attitude in issues of fundamental rights. It does appear that the Government is unwilling to empower the people to know and enforce their rights because such empowerment increases the risk of litigation against the Government. Various instruments which relate to better enjoyment of fundamental rights to which Nigeria is signatory, have not been domesticated. The Government has not put in commensurate effort to see to their passage. Sadly even the national laws that relate to human rights are sometimes abused by the administration. There is no sincere effort to implement the local legislation. This lack of political will is also extended to the implementation of international standards.

160 Abacha v Fawehinmi (n 15 ) 161 There are 36 Houses of Assembly in Nigeria.

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3. Attitude of security officials The attitude of security officials in Nigeria especially the Police is a major problem in effective implementation of human rights in the country. In its recommendation, the Police Summit on Policing and Crime in Nigeria162 recognised the absence of discipline and respect for human rights within the Police force. The absence of adequate training is a major contributory factor to lack of professionalism amongst the Police. This lack of professionalism contributes to the abuse of human rights. In our earlier discussion, the Nigerian Police exhibit inefficiency and disregard of the wording of the law. This is one of the reasons why it is hard to implement international standards. The Police are one of the key agencies for the maintenance of law and order. The Police have not been able to balance the enforcement of law and order and the protection of human rights. The Police play the role of a repressive agency. The composition and structure of the Police makes it ill equipped to follow global trends in human right enforcement. 4. Lack of awareness The bitter truth is that many Nigerians do not know what their rights are. This lack of awareness extends to international trends in human rights application. Since the people do not have adequate knowledge of these rights, they cannot adequately push for their enforcement. The people are principle partners in reform efforts. Thus their lack of grounding in issues of human rights has not helped implementation.

Criminal justice institutions are yet to be very liberal in enforcing human rights. Perhaps the structural inadequacies have not helped the implementation of international standards of human rights.

E. Impediments to Challenges to the Death Penalty. 1. Religion This is about the greatest impediment to the abolition of the death penalty. Muslims in Nigeria have repeatedly emphasised that the abolition of the death penalty will be perceived as a direct affront to their religion. It is their contention that their religion provides for the application of the death penalty and such provisions are immutable. Against the backdrop of constant religious crisis in the country, it portends a grave danger to abolish the death penalty without resolving the religious questions raised by the Muslims. 2. High rate of crimes The ever-increasing rate of crime attributable to the harsh economic realities of our time is a source of major concern for Nigerians. Nigerians are desperate for solutions. It is perceived by many that the implementation of the death penalty will arrest this trend. The political class is not so willing to abolish the death penalty because of the attendant fear that people will hold them responsible for any increase in crime. 3. The Constitution The Constitution permits the implementation of the death penalty and the process of amending the Constitution is both expensive and cumbersome163. This process discourages the amendment of the Constitution even when there are extenuating factors to call for such amendment. 4. Public Awareness Nigerians are still under the impression that the death penalty is an adequate deterrent to commission of crime. They are yet to be educated on the fact that the theory is not valid. This conception permeates the strata of Nigerian society and is a major bulwark to the abolition of the death penalty. 5. Lack of funds The cost of litigating death penalty cases and prosecuting the massive awareness needed to change the orientations of Nigerians with respect to the death penalty is very high. To adequately challenge the death

162 Organized by the Nigerian Police in collaboration with the Network for Police Reforms at Sheraton Hotels Abuja 26th – 29th April 2004 163 s 9 of 1999 Constitution

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penalty, much needs to be done in terms of awareness and effective challenge of the death penalty. The absence of funds militates against the abolition effort.

V. THE NEXT STEP The application of the death penalty in Nigeria raises a lot of questions and challenges. Of much importance is finding the ‘why’ of violent capital offences. It is pertinent to note at this point that from HURILAWS research, 80 percent of capital crimes in Nigeria have a financial undertone. By implication they are carried out for financial gains. This underscores the prevalent financial situation in the country coupled with unemployment occasioning hunger and disenchantment in the land. Wealth is glorified in society and the rich are seen as untouchables. By implication the economic and value system in the country is a major contributor to the increase of capital offences in Nigeria. I will quickly add that the solution to the high rate of crime does not lie in the barbaric extinction of miscreants who represent the failings of today’s Nigeria but in good leadership, which guarantees economic empowerment.

The justice institutions in Nigeria need overhauling not just in their application of the death penalty but in the entire justice delivery system. Our analysis portrays a system that is defective in form and in practice. There is a disconnection between what the law says and what is applicable. The human element is another identifiable factor in the problems of the death penalty application and indeed the criminal justice system.

Government is identified as an unwilling partner in the reform process. Government has not adequately played its part in the growth of our justice delivery system. This inefficiency on the part of Government has drastically slowed the pace of reform. There is need to complement the effort of the civil society by the Government.

The fact that so many variables are involved in determining who dies or lives, cannot lead on to support the application of the death penalty; in the sense that the ultimate result of trials may not in fact be correct. My own summation is that criminal justice delivery as applied in Nigeria with respect to capital punishment is not fair enough. There is enough room in the interim to adequately reform the relevant structures to ensure justice and ultimately in the long run to abolish the death penalty.

The ultimate abolition of the death penalty will require concerted effort on the part of civil society and abolitionists and also an adequate answer to the imperatives of a death penalty alternative. By this I propose urgent transformation of the justice sector to contain the challenges of a death penalty alternative in the area of prison decongestion, adequate facilities, transparent court process and an accused friendly justice system. I must mention at this point that the Sharia penal regime in its totality must be reformed to bring it in tandem with our Constitution and international obligations. In the interim, the Death Penalty Moratorium Bill presently in the National Assembly should be passed into law to enable Government to conduct a proper review of death penalty application in the country.

Government must learn to live up to its responsibilities. There should be a new wave of orientation on the part of Nigerians on the sacrosanct nature of human life and the fallibility of the court process. This can be achieved by a massive awareness programme, sharing of information and constructive engagement of Government. It only when this is done that we can achieve that glorious dawn when the right to life is respected for what it is: a right inalienable in whatever form.

APPENDIX 1

INMATES CHARGED WITH CAPITAL OFFENCES AND MANSLAUGHTER AWAITING TRIAL IN ALL THE STATES OF NIGERIA AS OF SEPTEMBER 5 2003

NIGERIAN PRISONS SERVICE STATE: ABIA AWAITING TRIAL: INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Arochukwu 1 11 12 2 Aba 115 94 209 3 Umuahia 51 85 136

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Total 167 190 357 NIGERIAN PRISONS SERVICE STATE: FCT AWAITING TRIAL: INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Kuje 61 13 74 2 Sulaja 0 Total 61 13 74

NIGERIAN PRISONS SERVICE STATE: ADAMAWA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Yola 31 30 61 2 Mubi 3 Numan 4 Jada 5 Gombi 6 Guyak 7 Shelleng 8 Hong 9 Mayobelwa 10 Karlahi 11 Michika 12 Dumne 13 Gulak 14 Jimeta 92 73 165 15 Ganya Total 123 103 226 NIGERIAN PRISONS SERVICE STATE: AKWA IBOM AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Uyo 110 155 265 2 Ikot Abasi 2 10 12 3 Abak 30 48 78 4 Ikot Ekpene 34 42 76 5 Eket 15 51 66 Total 191 266 497 NIGERIAN PRISONS SERVICE STATE: ANAMBRA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Awka 127 63 190

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2 Onitsha 20 168 188 Total 147 231 378

NIGERIAN PRISONS SERVICE STATE:BAUCHI AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Bauchi 129 47 176 2 Azare 0 3 Ningi 0 4 Darazo 0 5 Shira 0 6 Katagun 0 7 Misau 0 8 Jama’are 0 Total 129 47 176

NIGERIAN PRISONS SERVICE STATE:BENUE AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Makurdi 234 112 346 2 Oturkpo 12 13 25 3 Gboko 11 9 19 4 Medium

Security Makurdi

0

Total NIGERIAN PRISONS SERVICE STATE:BORNO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 MSP maiduguri 138 41 179 2 Bama 0 3 Biu 0 4 Gwoza 0 5 Kumshe 0 6 Kukawa 0 7 Gamboru ngala 0 8 Damasak 0 9 Kwayakusar 0 10 Askira 0 11 Mongoro 0 12 Shani 0 13 Maiduguri new 0 Total 138 41 179

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NIGERIAN PRISONS SERVICE STATE: CROSS RIVER AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Calabar 62 105 167 Total 62 105 167

NIGERIAN PRISONS SERVICE STATE: DELTA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Warri 204 70 274 Total 204 70 274 NIGERIAN PRISONS SERVICE STATE:EBONYI AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

TOTAL

1 Abakaliki 95 130 225 2 Afikpo 9 25 34 TOTAL 104 155 259 NIGERIAN PRISONS SERVICE STATE: EDO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Oko 257 92 349 2 Auchi 6 30 36 3 Benin 30 8 38 4 Ubiaja 12 19 31 TOTAL 305 149 454 NIGERIAN PRISONS SERVICE STATE:EKITI AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Ado Ekiti 128 23 151 Total 128 23 151

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NIGERIAN PRISONS SERVICE STATE: ENUGU AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Enugu 170 58 228 Total 170 58 228 NIGERIAN PRISONS SERVICE STATE: GOMBE. AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Gombe 89 73 162 2 Biliri 0 3 Cham 0 4 Bajoga 0 Total 89 73 162 NIGERIAN PRISONS SERVICE STATE: IMO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Owerri 272 279 551 2 Okigwe 45 56 101 3 Orreh Farm 0 Total 317 335 652 NIGERIAN PRISONS SERVICE STATE: JIGAWA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Hadeja MSP 12 6 18 2 Gumel MSP 5 11 16 3 Kazaure 4 4 4 B/Kudu FC 0 5 B/Kudu SAT 0 6 Ringim 0 7 Gwaram 0 8 Jahun 0 9 Garki 0 10 Dutse 0 13 12 25 Total 30 33 63 NIGERIAN PRISONS SERVICE STATE: KADUNA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

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1 Kwoi 0 2 Manchok 0 3 Makafi 0 4 Soba 0 5 Birnin Gwari 1 1 6 Gwantu 0 7 Mando 0 8 Kafanchan 0 9 Kaduna 254 91 345 10 Zaria 3 3 Total 257 92 349 NIGERIAN PRISONS SERVICE STATE: KANO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Central Prison 276 128 404 2 Goron Dutse 4 5 9 3 Wudil 4 Gwazo New Satellite 5 Bichi Satellite 6 Rano Satellite 7 Tudun Wada Satellite 8 Sumaila Satellite 9 Kiru Satellite 10 Dawakin Tofa Satellite Total 280 133 413 NIGERIAN PRISONS SERVICE STATE: KATSINA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Kankia Satellite 2 MSP Funtua 2 3 5 3 MSP Daura 1 1 2 4 Jibia S/Prison 0 5 Katsina Central 142 67 209 6 Malumfashi 3 3 7 Daura Old 1 1 8 Musawa 0 9 Mani Satellite 0 10 Dutsin-ma Satellite 2 2 Total 145 77 222 NIGERIAN PRISONS SERVICE STATE: KEBBI AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Birnin Kebbi 81 52 133 2 Yauri 0

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3 Badugu 1 1 4 Argungu 0 5 Kangiwa 0 6 Zuru 19 19 7 Jega 0 8 Wara 0 0 Total 81 72 153 NIGERIAN PRISONS SERVICE STATE: KOGI AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 2 3 4 Total 210 43 253 NIGERIAN PRISONS SERVICE STATE: KWARA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Ilorin 53 35 88 2 Lafiaji 0 Total 53 35 88 NIGERIAN PRISONS SERVICE STATE: LAGOS AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Maximum 60 31 91 2 Medium 158 7 165 3 Ikoyi 234 393 627 4 Badagry 1 1 5 Female 11 54 65 Total 464 486 949 NIGERIAN PRISONS SERVICE STATE: NASSARAWA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Lafia 159 40 199 2 Nassarawa 2 2 3 Keffi 6 4 10 4 Wamba Total 165 46 212

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NIGERIAN PRISONS SERVICE STATE: NIGER AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 MSP Minna 62 10 72 Total 62 10 72 NIGERIAN PRISONS SERVICE STATE: OGUN AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Abeokuta 105 62 167 2 Ijebu-Ode 29 35 64 3 Ilaro 13 36 49 4 Sagamu 11 25 36 Total 158 158 316 NIGERIAN PRISONS SERVICE STATE: ONDO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Akure 259 48 307 2 Ondo 2 6 8 3 Owo 14 14 4 Okitipupa 1 8 9 Total 262 76 338 NIGERIAN PRISONS SERVICE STATE: OSUN AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Ile-Ife 26 20 46 2 Ilesha 126 63 189 Total 152 83 235 NIGERIAN PRISONS SERVICE STATE: OYO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Agodi 131 131 2 Oyo 1 1 Total 0 134 134

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NIGERIAN PRISONS SERVICE STATE: PALTEAU AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Jos 129 88 217 2 Langtang 0 3 Shedam 1 3 4 4 Pankshin 3 3 5 Wase 0 6 Lakushi P.F.Centre 0 Total 130 94 224 NIGERIAN PRISONS SERVICE STATE: RIVERS AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Degema 1 1 2 Ahoada 4 58 62 3 P/Harcourt 564 400 964 Total 5 459 1027 NIGERIAN PRISONS SERVICE STATE: SOKOTO AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Sokoto 11 69 80 2 Wurno 0 3 Tambawal 0 Total 11 69 80 NIGERIAN PRISONS SERVICE STATE: TARABA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Jalingo 44 75 119 2 Serti 3 Gembu 1 1 4 Bali 5 Mutumbiya 6 Karim Lamido 7 Baisa 2 2 8 Takum 9 Gassol 10 Zing 1 1 11 Lau 12 Wukari 2 4 6

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Total 46 83 129 NIGERIAN PRISONS SERVICE STATE: YOBE AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES S/NO Prison Armed

Robbery Murder/ Manslaughter

Total

1 Potiskum 154 55 209 2 Gashua 2 1 3 3 Nguru 4 Damaturu Sat. 5 Damagum 6 Dapchi Sat. 7 Gadem 8 Dapachi Sat. Total 156 56 212 NIGERIAN PRISONS SERVICE STATE: ZAMFARA AWAITING TRIAL INMATE POPULATION BY TYPES OF OFFENCES (as at 5th September 2003)

OFFENCES

S/NO Prison Armed Robbery

Murder/ Manslaughter

Total

1 Gasau 84 88 172 2 Gunmi 3 Kaura 4 Maru 1 1 5 Talata Mafara 2 2 Total 84 91 175

APPENDIX 2. Persons on Death Row in Nigeria as of July 2003 STATE M F TOTAL Adamawa 1 - 1 Akwa-Ibom 28 - 28 Bauchi 3 - 3 Benue 1 - 1 Borno 3 - 3 Cross-River 8 - 8 Delta 37 - 37 Edo 29 2 31 Enugu 52 1 53 Gombe 3 - 3 Jigawa 4 - 4 Kaduna 50 - 50 Kano 5 - 5 Katsina - 1 1

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Kebbi 6 1 7 Kogi 3 - 3 Kwara 1 - 1 Lagos 16 - 16 Ogun 106 1 107 Plateau 40 1 41 Rivers 60 4 64 Taraba 10 - 10 Yobe 6 - 6 Zamfara 4 - 4 Total 476 11 487 (Source : PRAWA, November 2003)

BIBILOGRAPHY Amnesty International (February 2004): The Death Penalty and Women under Nigeria’s Penal System. AI Index AFR 44/001/2004 Amnesty International (2002): Nigeria: Security Forces, Serving to Protect and Respect Human Rights? AI Index AFR 44/023/2002 Human Rights Watch (1991): The Price of Oil: Corporate Responsibility and Human Rights Violations in Nigeria Oil Producing Community Iman: The Stipulated Punishments (hudud) in Sharia and Their Significance (unpublished paper) July 8 2002 Roger Hood: (2002) Death Penalty: A World Wide Perspective, Oxford University Press Obilade A O (1977): Nigeria Legal System, Sweet & Maxwell Okonkwo and Naish (1990): Nigeria Criminal Law 2nd Edition, Spectrum Publishing Ibadan Nigeria The International Covenant on Civil and Political Rights The International Covenant on Social and Economic Rights Convention on the Rights of the Child Convention on the Elimination of all Forms of Discrimination Against Women 1999 Constitution of the Federal Republic of Nigeria The African Charter on Human and Peoples’ Rights, Ratification and Enforcement Act Laws of the Federation of Nigeria 1990 Supreme Court Ordinance No 6 0f 1914 Criminal Code Ordinance 1904 Proclamation No 5 of 1900 Criminal Procedure Act Chapter 80 Laws of the Federation of Nigeria 1990

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Criminal Procedure Code Chapter 81 Laws of the Federation of Nigeria 1990 Criminal Code Act Chapter 77 Laws of the Federation of Nigeria 1990 Penal Code Act Chapter 345 Laws of the Federation of Nigeria 1990 High Court Laws of Northern Nigeria 1960 Sharia Penal Code Law of Zamfara State 2000 Sharia Penal Code Law of Sokoto State 2000 Sharia Penal and Criminal Procedure Code of Kaduna State 2000 Sharia Penal Code Law of Kano State 2000 Robbery and Firearms Decree No 5 1984 Counterfeit (Special Provisions) Decree No 22 of 1974 Special Tribunal (Miscellaneous offences) Decree No 26 of 1984 Drugs and Other Related Matters Decree No 10 of 1985 Armed Forces Decree No 105 of 1993 Children and Young Persons Law of Lagos State The Qur’an TABLE OF CASES

A G ABIA V A G FEDERATION (2002) 6 NWLR (PT 763) P 264

A G OGUN V A G FEDERATION (1982) 1 SC 40

ABACHA V FAWEHINMI (2000) 6 NWLR (PT 660) P 228

ABELE V TIV N.A (1965) NNLR 425

ADAM V A G BENDEL STATE (1986) 2 NWLR 44

ADAMU V STATE (1991) 4 NWLR (PT 187) 530

ADEGIKE V ADEBISI (1992) 5 NWLR (PT 146) 578

AJAYI & ANOR V ZARIA N.A (1963) 1 ALL NLR 169

AREMU V C.O.P (1980) 2 NCR 315

ARIRI V ELEMO (1983) SCNLR 1

ARUNA V STATE (1990) 6 NWLR (PT 1550 127

ASANYA V STATE (1991) 1 NWLR (PT 180) 422

ATEKE V AFEJUKU NSCC (PT 45) 828

BAYO JOHNSON V A G LAGOS STATE (2002) 8 NWLR (PT 768) 192

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CHUKWUEKE V STATE (1991) 7 NWLR (PT 205) 604

EYU V STATE (1988) 2 NWLR (PT 78) 602

GAJI V STATE (1975) 5 SC 60

GARBA & ORS V UNIVERSITY OF MAIDUGURI (1986) 2 SC 128

GARBA V STATE (1999) 11 NWLR (PT 627) 422

GUBBA V GWANDU N. A (1947) 12 WACA 141

ISHOLA V STATE (1969) NMLR 259

MODUPE V STATE (1988) NWLR 130

NASIR BELLO V A G OYO STATE (1986) 5 NWLR

NASIR V STATE (1999) 2 NWLR (PT 589) 87

OBIDIOZOR V STATE (1987) 4 NWLR (PT 67) 48

OKOJIE & ORS V STATE (1989) 1 NWLR (PT 100) 642

OLUGBUSI V C.O.P (1970) 2 ALL NLR 1

ONUOHA KALU V STATE (1998) 12 SCNJ

PETER NEMI V A G LAGOS STATE (1996) 6 NWLR (PT452) P 42

R V AJEGE (1935) 2 WACA 353

R V OGO (1961) ALL NLR 70

R V OGOR (1961) 1 ALL NLR 70

R V OLADIMEJI (1964) NMLR 31

R V UZODINMA (1982) 1 NCR 27

SAMUEL BOZIN V STATE (1985) 2 NWLR (PT 8) P 465

SANMABOW V STATE (1967) NMLR 314

TULU V BAUCHI N.A (1965) NMLR 343

UDO V STATE (1988) 3 NWLR 316

UDOFIA V THE STATE (1988) 7 SCNJ 188

YESUFU V STATE (1972) 12 SC 143

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