Why death penalty no longer deters criminals

As the agitation and armed struggle in the region grew, the vice, originally intended to draw the attention of the world on the environmental degradation by the oil multinationals in the creeks of the region were hijacked by criminal elements.

Not long after, other criminal elements joined the ‘business’ of abduction. Of course, ransom was paid and the abductors got more arms and were emboldened.

The malaise got to a crescendo between 2007 and 2008, when it became a serious enterprise and gradually percolated into the neighbouring South Eastern states. In response to the crisis, the overwhelmed state governors prodded their various houses of assembly to enact laws prescribing death penalty for kidnappers.

In quick succession, states such as Abia, Edo, Bayelsa, Akwa Ibom, Anambra, Ebonyi, Enugu and Imo approved capital punishment for abduction, but such provisions have not stopped kidnapping or any other dangerous crime. Criminals seem not to be deterred by such, instead, the incidence is on the rise.  Worst still, the chief executive officers of those states are unable to apply the law, arising from their unwillingness to sign death warrants for condemned abductors or other criminals.

For instance, worried by the incessant cases of abduction in Lagos, the State House of Assembly on January 5, 2017 passed anti-kidnapping bill and prescribed death penalty for convicts whose victims die in their custody. Abductors, whose victims do not die in their hands, would face life imprisonment.

In Lagos, the criminals had abducted a prominent traditional ruler, the Oniba of Iba, Oba Yushau Oseni. In October last year, some students of the Lagos Senior and Junior Model College, Igbonla, Epe were also abducted. Before then, it was students of the Babington Macaulay Junior Seminary, Ikorodu that were kidnapped in March 2016. Undeterred, the criminals, two weeks ago abducted students of the Turkish School in neighbouring Ogun state.

The bill is now waiting for the governor’s assent. It is titled, “Law to Provide for the Prohibition of the Act of Kidnapping and for other Connected Purposes” and was sponsored by the Speaker of the House, Mr. Mudashiru Obasa. The bill states that any person who kidnaps, abducts, detains, captures or takes another person by any means or trick with intent to demand ransom or do anything against his/her will, commits an offence. It also stipulates life imprisonment for anyone who makes an attempt to kidnap another person, and seven years imprisonment for anyone making false representation to release a kidnapped or abducted person.

It also provides that anyone found guilty of threatening to kidnap another person through phone call, e-mail, text message or any other means of communication would face 25 years imprisonment, among other provisions.

Besides the immediate past governor of Edo State, Adams Oshiomhole and his successor, Godwin Obaseki, no state governor has executed condemned criminals in recent times. Oshiomhole signed the death warrant of two death row inmates in June 2013, while his successor signed his, December 2016, for three inmates.

Though, those executions stoked controversy and provoked the ire of civil society organisations campaigning for the abolition of death penalty, the actions of the governors were still considered a storm in a teacup by protagonists of the death penalty.

The unwillingness of the state governors to sign the death warrants has thrown up the argument that such powers should instead be vested in the attorney generals or chief judges of various states, who may have little political consideration in carrying out the function.

A Port Harcourt based Senior Advocate of Nigeria (SAN), Mr. Beluolisa Nwofor believes the criminals are not deterred because the criminal justice system in Nigeria is too slow in operation. According to him, if one criminal commits a crime January 2017 and he is caught, the trial process may not end until 10 years time.

“And that includes trial at the appellate courts. If a crime committed in 2017 is still on in 2027, there will be no deterrent because other criminals would see that nothing has happened to their colleague. So, that doesn’t deter anybody,” he declared.

Nwofor who said the non-signing of death warrants is the negligence of the various state governors, also pointed out that the governors may not have been signing the death warrants possibly because of appeals by death row inmates. He asked: “How many of the convicts have exhausted their appeals to the Supreme Court and are awaiting execution? If you check their number, you will see that it is infinitesimal. If you check the number of those in death row, who have lost their appeal at the Supreme Court across the country, they are not many.”

He dismissed the argument that attorney generals or chief judges could be vested with power to sign death warrants, but rather propose that consequential orders be made by the apex court for a particular number of days a convict can stay before execution. He argued that chief judges cannot sign death warrants since they preside over the lower courts.

His words: “Once a convict’s appeal is dismissed by the Supreme Court, it should make consequential order that the judgment has sufficient authority to carry out the execution of the condemned person within possibly a month. So you don’t need anybody to sign anything anymore. Once the decision is signed, it becomes sufficient authority for the person to be executed. That is the amendment I propose and it would be most effective. By that, you remove it from political consideration. If you convict a Z party man for murder and his appeal is dismissed at the apex court, the Z governor will not sign his death warrant. And the attorney general who belongs to the same party would not sign it either.”

A Lagos based criminal lawyer, Austin Abhulimen hailed the death penalty provisions. Death penalty for the crime of kidnapping, he said, is appropriate.“You may think it is not deterring others from committing the same offence, I tend to disagree because how do you measure deterrent? There are many young boys who would have engaged in kidnapping today, but for the death penalty. When they think of what would happen to them when they are caught, they think twice. It is only those who are neck-deep in crime that would see the penalty and still go ahead and commit the crime.

“Those who are desperate and take that kind of risk, by my experience are usually caught. There is hardly any of those dangerous armed bandits that sprang up that reigned for two years without being caught by my experience. So, I think it is very necessary and it is good. Other states that are yet to pass the laws may also follow.  In Anambra, if one is caught, he is executed and his property is demolished and the land taken over by the government.”

He expressed concern that state governors are not signing death warrants. According to him, it is unknown why they shy away from doing that. He, however, added that whether the convicts are executed or not, they nonetheless, are kept in condemned criminal cells. Abhulimen, in addition supported the idea that state attorney generals could be empowered to sign death warrants.

The 2nd vice chairman of the Nigerian Bar Association (NBA), Mr. Monday Onyekachi Ubani in his contributions said the governors would be in a better position to state why they are not signing death warrants because Oshiomhole did so as the governor of Edo State and nothing happened.

According to him, under Nigeria’s criminal jurisprudence, there are capital offences that require death penalty and those laws have not been abrogated. Offences like armed robbery, murder and treason, he noted, carry death penalty. He suggested that the reason might be that most of those convicts may have appeals pending. “You know how long our judicial process can be, so if they are on appeal, you don’t expect them to be executed. I think that may be one of the reasons. Apart from that, if the appellate courts options have been exhausted, I don’t know why the governors are developing cold feet.

Ubani also pointed out that the attorney generals cannot sign the death warrants, unless it is delegated to them by the governors. In his own view, a law can be made to empower the attorney generals or the governors to delegate the function to them.

“I don’t have any problem with the laws prescribing death penalty as long as we have not removed it from our jurisprudence. Though, there are strong campaign internationally for the abolition of death penalty, those countries have got it right and the level of heinous crime in those climes are very rare,” he said. He called on government to try and improve the economic fortunes of citizens to mitigate the rising cases of crime in the society.

For him, the reason why death penalty is not deterring criminals is that they are blinded by the quest to meet the need of the time. “My position is that if somebody commits heinous crime, he must also suffer heinous penalty,” he declared. But the Senior Legal/Programme Officer of the Human Rights Law Service (HURILAWS), Mr. Collins Okeke disagrees with the prescription for death penalty. He is of the view that it would not deter criminals and therefore would not work.

He said: “For more than 50 years federal and state governments in Nigeria have continued to extend crimes to which the death penalty applies. The moment a crime assumes notoriety or begins to overwhelm law enforcement agents, governments’ response has been to impose the death penalty for such crime(s).

“When kidnapping became the trend in Southeast and South-south Nigeria, most affected state governments prescribed the death penalty. The Federal Government responded to the surge in terrorism in the Northeast and Northwest by imposing the death penalty. There is even a clamour that death penalty be made to apply to official corruption, vandalisation of oil installations, and oil bunkering.

“What advocates of death penalty fail to understand is that the death penalty does not keep society safe. It may pander to the outrage of society, but it does not abate or remove the crime or offence, which should be the interest of government. The best way to solve crime is to prevent it or at best apprehend the offender. When a criminal justice system is too weak to resolve crimes and apprehend offenders, the penalties no matter how severe will have no deterrent effect. This is why I advocate far reaching institutional and procedural reform of Nigeria’s criminal justice system.”

Okeke noted that the Nigerian criminal justice system has challenges that question the morality of any application of the death penalty. It is public knowledge, he said, that the police have a confidence and integrity challenge. According to him, they lack the capacity to effectively investigate crime.

“There are no forensic labs, equipment or facilities to accurately or scientifically tie crimes to suspects.  Most allegations/charges for crimes that attract the death penalty are based on confessional statements, most of which are obtained through torture and other unlawful practices. The judiciary has become somewhat complicit when they admit these confessional statements and continue to make pronouncements of death knowing these limitations exist in the system.

“My position is consistent with the recommendations and findings of the Federal Government’s National Study Group on Death Penalty. The Group recommended, ‘…an official moratorium on all executions until the Nigerian Criminal Justice System can ensure fundamental fairness in capital cases and minimize the risk that innocent people will be executed,” he said.

He appealed to the federal and state governments to reconsider their policy on the death penalty as what ‘we collectively need to stop is crime, not lives.’In the same vein, the national coordinator of Legal Defence and Assistance Project (LEDAP), Mr. Chino Edmund Obiagwu emphasised that all prisoners, including those sentenced to death, retain all the fundamental rights endowed on all citizens by the 1999 Constitution.

This, he said, was re-emphasised by the Court of Appeal in the case of Peter Nemi v Attorney General of Lagos State in 1994. “The Supreme Court of Nigeria also held in Nasir Bello v Attorney-General of Oyo State that a prisoner cannot be legally executed while his case is pending in court. In so far as an appeal against the sentences of the death row prisoners in Nigeria are pending in court, to the knowledge of the prison authorities and the government who participated in the high court proceedings before the appeal, there is no legal justification for any executions,” he said.

Obiagwu noted that Nigerian government had declared at its 2009 and 2014 Universal Periodic Reports (UPR) to the United Nations Human Rights Council that she has put in place a moratorium on the use of the death penalty. “The December 23, 2016 execution of these three prisoners, as well as, similar execution of four prisoners on June 21, 2013 by the same Edo State government have undermined Nigeria’s declarations to the international community for death penalty moratorium,” he argued.

He therefore called on the National Assembly and State Houses of Assembly to rather amend the Criminal Code and Penal Code, as well as, the Robbery and Firearms (Special Provisions) Act, to remove death sentence as punishment for crimes and replace it with life imprisonment or term of years sentence.

He recalled that Nigeria had revisited her death penalty laws through a Panel of Expert that was setup to review the use of death penalty. “This panel, headed by Professor Bamgbose, former Director General of Nigerian Institute of Advanced Legal Studies (NAILS), issued a report stating the dangers of the continued use of the death penalty in Nigeria. The Panel had enthused that ‘a State that cannot give justice should not take life.’

“Nigerian government had not lived up to any of these promises to the world. It has continued to execute death row prisoners and has never had a moratorium. There was no document or policy paper declaring moratorium on executions or on death sentencing. The Federal Government has not made any official commitment to discourage states from using the death penalty,” he stated.

He explained that in May 2012, state governors met in Abuja and announced they would commence executions as a way to decongest prisons. According to him, the proposition was illogical because Nigeria’s prisons are over-populated by only awaiting trial prisoners.

His words: “Upon that threat to kill them, all death row prisoners in 11 maximum security prisons filed a suit at the Federal High Court against all state governors to stop any execution. The case is pending at the Court of Appeal Lagos. Despite the ongoing suit, prisoners continued to be executed. At the same time, the Federal Government has discarded the report of the Bamgbose Panel of Experts, completely ignoring its commitment to the UN.

“Not only that, it has executed prisoners since then, in 2013 and 2016. It has expanded the range of non-homicidal crimes punishable by death sentence. It has also continued to apply death penalty as mandatory punishment, despite the fact that all over modern democracies, the mandatory use of death sentence has been abolished because it constitutes a legislative usurpation of the judicial functions of sentencing.

Obiagwu regreted that Nigeria’s legislature has ignored calls by civil society to abolish the use of death sentence or to restrict it to only crimes resulting in death of the victims. “In many instances, it introduced death penalty for kidnapping (Edo, Akwa Ibom, Anambra, Imo, Abia, and Delta) and for adultery, sodomy (12 Sharia states),” he stated.

He argued that for the fact that there are few convictions and death sentences for kidnapping, adultery or sodomy, it showed that the severity of punishment is not deterrence to crime. “What discourages potential criminals from committed crimes is the high possibility of being apprehended while committing the offence. Nigerian governments at state and federal levels should focus on improving police capacity to arrest and prosecute criminals, rather than increasing the possibilities of injustice through the wide-range use of the death penalty. In death penalty practices, there is always a high risk that an innocent person will be wrongly convicted and executed, a dangerous prospect in any modern society.

“Life imprisonment is a humane and civil alternative to death sentence. Life sentence forecloses any possibility of killing an innocent soul. Nigeria should embrace change, and walk its talk on death penalty moratorium,” he charged.