Capital Punishment Conundrum: In Nigeria, death penalty no longer serves its purpose

The number of people on death row continues to grow because the Nigerian criminal justice system seems to view the death penalty as a form of deterrence.

Adedeji Sanusi was staying over at a friend’s house in Ilorin, Kwara State, north-central Nigeria, in 2015 when the police burst open the door to arrest his host in connection with an armed robbery case – an offence punishable with death in Nigeria.

Mr Sanusi was arrested alongside his host. His explanation that he was only there for an evening meal was ignored. He was thrown into a cell, with his fate left in the hands of investigators and prosecutors.

“It was an unfortunate situation,” Olawale Abimbola, the prosecutor who handled the case for the Kwara State Government, said.

“He was not part of the gang. Sanusi only visited the gang leader and decided to stay the night after eating rice. It was around midnight when he heard a knock on the door; he asked, ‘Who is that?’ It happened to be the police,” the prosecutor said during an interview with PREMIUM TIMES in his office at the Kwara State Ministry of Justice.

The police later arraigned Mr Sanusi and eight others for armed robbery. However, the prosecutor found no substantial evidence linking him to the robbery and recommended his discharge. The judge rejected the recommendation, stating that Mr Sanusi would only be released at the end of the trial. And so, for four years, he languished in prison until the trial was concluded.

At the trial, all the defendants except Mr Sanusi were convicted. Five were sentenced to death and three received life imprisonment. Mr Sanusi walked free after losing four years of his youth. Nonetheless, he considered himself “lucky” to have a prosecutor who reviewed the evidence and advocated on his behalf.

For many who have had encounters with Nigeria’s criminal justice system, Mr Sanusi’s story is all too familiar. The system often disregards the principle of the presumption of innocence, even for offences carrying capital punishment. Many have not been as fortunate, as the Nigerian criminal justice system and Sharia law continue to issue death sentences at a rate advocates say is alarming.

The case of Kano singer Yahaya Sharif-Aminu, who was convicted of blasphemy for writing a song and sharing it on a social messaging service, highlights the significant flaws in the Nigerian justice system, which makes continuing death sentencing dangerous.

Mr Sharif-Aminu was sentenced to death by hanging in August 2020 by an Upper Shari’a Court in Kano, North-west Nigeria, for an allegedly blasphemous song he composed about the Islamic Prophet Muhammad. The verdict received global attention and criticism.

On appeal, the High Court explicitly stated that the trial at the Shari’a Court did not meet the basic procedural requirements before such a judgement could be handed down and ordered a retrial. Not satisfied with the verdict, Mr Sharif-Aminu approached the Supreme Court to dismiss the case. The case is still pending at the Supreme Court.

However, not many are fortunate, like Mr Sharif-Aminu, to receive global attention and support to advance their case.

In 2002, Sani Rodi was hanged in Kaduna prison by the Nigerian government for murder. He was convicted by the Shari’a Court without legal representation and did not exercise his right of appeal. This raises the question: would he have been convicted if he had legal representation or had exercised his right of appeal?

Investigation reveals that these cases share a common issue: the inability of the Nigerian criminal justice system to guarantee justice, particularly for those who may not have the resources to obtain adequate representation. Often, they are at the mercy of the system.

Under international human rights standards, the death penalty should follow the most rigorous investigation. However, the history of capital punishment in Nigeria is marred by a significant trust deficit in the system.

How Death Penalty is Woven into Nigeria’s Criminal Justice System

Over the years, the number of people on death row in Nigeria continues to grow because the Nigerian criminal justice system views the death sentence as a form of deterrence despite global consensus favouring its abolition. A total of 122 countries have abolished the death penalty for all crimes, while Nigeria remains among the 56 countries still applying it.

As of 30 April, 3,413 people were on death row in Nigerian prisons, according to the Nigerian Correctional Service (NCoS). About 73 of them are women, while 3,504 are men. Many have been awaiting execution for many years, with their fate delayed by the reluctance of state governors to sign the warrants for their execution.

The crimes for which the death penalty is applied in Nigeria are extensive. A convict could receive the death penalty for adultery if convicted by a Shari’a court. Other offences include treason, conspiracy to commit treason, murder, and armed robbery under the Penal Code and the Criminal Code.

Under Sharia law, convicts could be sentenced to death for blasphemy, sodomy, same-sex relationships, rape, and similar offences.

Henry Eni-Otu, the lead partner at the Law Corridor, explained that the current structure of laws on capital offences means that judges will continue to hand down death penalties due to the wording of the laws, even if the crimes do not meet the threshold of “most serious crimes,” which involve intentional killing.

“In our criminal jurisprudence, when it comes to sentencing, particularly the death sentence, it is usually mandatory. By virtue of our law, sentencing is always at the discretion of the judges in line with our law. The circumstances of the crime will determine the discretion the judge will exercise, but when it comes to murder, there is no reason – if it is not manslaughter, the moment it is murder or culpable homicide, the court is mandated to sentence you to death. If it were manslaughter, the court can use its latitude,” Mr Eni-Otu said in an interview in his office with PREMIUM TIMES..

“Most of the judges are progressive, but their hands are tied. That is why the numbers are rising in Nigeria,” Maurice Chukwu, a researcher at Amnesty International, said during an interview for this report.

Section 319 of the Criminal Code states that “subject to the provisions of this section, any person who commits the offence of murder shall be sentenced to death.”

Similarly, Section 1 of the Robbery and Firearms (Special Provisions) Act also makes the death sentence mandatory for anyone who robs using firearms or any offensive weapon or who is in the company of anyone so armed. Furthermore, Section 125 of the Shari’a Penal Code prescribes stoning to death for adultery.

“Whoever commits the offence of Zina shall be punished – if married, with stoning to death,” Section 125 of the Code reads.

According to experts, this mandatory sentencing is one reason why Nigeria continues to record a high number of death sentences. Judges must impose the sentence even when discretionary power would be more appropriate.

Examining the Gender Component of the Death Penalty

According to the records of the NCoS, there are 73 women on death row across prisons in Nigeria. However, experts believe there is a connection between violent crimes committed by women and unresolved domestic violence.

Funke Adeoye, the executive director of Hope Behind Bars Africa (HBBA), lamented the lack of focus on the gender component of the death penalty in Nigeria. She noted that available information indicates that women are at a disadvantage when navigating the Nigerian criminal justice system.

Some of the factors cited by Mrs Adeoye include limited legal representation, socio-economic constraints, and the possibility of harsh sentencing due to societal prejudice against women.

“It is imperative to examine the gender dimension of the death penalty in Nigeria. Anecdotal evidence from our work shows that many violent crimes committed by women stem from unresolved gender-based violence. Limited legal representation, socio-economic constraints, and the potential for harsh sentencing are among the distinctive obstacles that women, particularly those from marginalised backgrounds, encounter,” Mrs Adeoye said.

As stated earlier, certain provisions in the Shari’a Penal Code contain elements that many believe are discriminatory against women. However, for Mrs Adeoye and other advocates of death penalty abolition, the starting point is the amendment of Section 33 of the 1999 Constitution.

Why death penalty may not be answer to insecurity in Nigeria

Despite the well-documented evidence of the inefficacy of the death penalty, 26 states in Nigeria have enacted laws prescribing death sentences for kidnapping, cattle rustling, and similar offences. These laws were introduced over the past 15 years.

Similarly, in May 2024, the Nigerian Senate passed a bill that prescribes the death penalty as one of the punishments for drug trafficking in Nigeria. This legislative move raises questions about the rationale behind law-making in Nigeria. Experts question whether the death penalty has ever served as a deterrent.

This bill and several other existing laws derive their legitimacy from Section 33 of the 1999 Constitution, which states that “every person has a right to life, and no one shall be deprived of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”

“If the death penalty were a deterrent, (after the killing of) people like Ishola Folorunsho, Oyenusi, Mighty Joe, Anini, and Osunbor – after all of them were convicted and shot publicly during the military regime, virtually every week – one would have expected that the death penalty that took the lives of those people would have deterred others from committing such offences (robbery) again. But the fact that these offences are still being committed shows that the death penalty has not deterred anyone,” Mike Ozekhome, a Senior Advocate of Nigeria, said during an interview for this report.

Mr Ozekhome’s perspective reflects years of advocacy in Nigeria for the abolition of the death penalty. Two study groups set up by former President Olusegun Obasanjo – the National Study Group on the Death Penalty (2004) and the Presidential Commission on the Reform of the Administration of Justice (2007) – both recommended a moratorium on the execution of the death penalty.

Edun Adegoruwa, another Senior Advocate of Nigeria, stated that aside from the cruelty of the death warrant, there is nothing to suggest that the practice has helped deter crime. Instead, it opens the door to miscarriages of justice and contributes to prison congestion, he said.

A review of Nigeria’s insecurity and the anti-kidnapping laws by the 26 states that support the death penalty shows that, despite these laws, insecurity in many of these states has not diminished. For instance, the five South-east states of Imo, Abia, Enugu, Anambra, and Ebonyi have different laws prescribing the death penalty for kidnapping. However, this region has become the centre of violence due to the activities of groups alleged to be affiliates of the Indigenous People of Biafra (IPOB).

States like Zamfara, Katsina, and Niger have witnessed mass abductions in recent years despite having death penalty laws. Overall, states that enacted these laws in response to certain crimes continue to experience high rates of those crimes.

Amnesty International, in a recent report, examined this relationship and concluded that there is “an increase in general insecurity, unlawful killings, and kidnappings for ransom despite the introduction of the death penalty for crimes of banditry, kidnapping, cattle rustling, and cultism.”

“We hope that the death penalty is abolished so that we will not be relying on the good discretion of the judges and the governors not to sign the execution warrant,” Mr Chukwu said.

Arguments for the death penalty

Some argue that the lack of execution of death warrants is the primary reason for the ineffectiveness of the death penalty as a deterrent. Abdulahi Beki, an assistant director at the Kwara State Ministry of Justice, stated that governors have rendered the death penalty ineffective by failing to sign execution warrants.

“Death sentences have not really curbed criminality because the convicts know that the government will not sign their execution. In 2018, in Ilorin alone, we had over 53 convicts on death row whose execution warrants have not been signed. Some of these cases have gone through the appeal stages, yet they contribute to prison congestion,” Mr Beki said.

“My first conviction was in 2010; the individual is still there. Having gone through all the processes of prosecution and with the Supreme Court affirming the conviction, he is still there. The convicts know that despite the convictions, they will not be executed, and one day, they might find redemption. This encourages those outside.”

Mr Beki, sometimes referred to as Asarailu by his colleagues – an Arabic term meaning ‘angel of death’ – has secured 15 death sentence convictions over the past 15 years. He argues that the government’s failure to sign execution warrants endangers the lives of prosecutors.

While many Nigerians support the abolition of the death penalty, there are instances where extreme cases prompt public support for it. For example, the gruesome murder of Hanifa Abubakar, a five-year-old girl in Kano, sparked widespread outrage. Former First Lady Aisha Buhari publicly supported the execution of the suspect, Abdulmalik Muhammad Tanko, and the then-governor, Umar Ganduje, expressed willingness to sign the death warrant upon completion of the judicial process.

Nigeria’s experience with terrorism has also influenced public opinion. Many oppose the federal government’s policy of rehabilitating and reintegrating terrorists, believing that releasing individuals who have committed heinous crimes does not provide justice for victims.

However, Messrs Adegoruwa and Ozekhome argue that long sentencing or life imprisonment is sufficient for justice. Mr Ozekhome stated, “I do not believe in the death penalty. I rather believe in long periods of jail time, where by the time the person comes out, he is a vegetable, neither useful to himself, his family, nor society. When people see the man who was once killing people now withering away, I think that serves as a better deterrent than a bullet.”

Mr Beki disagrees, arguing from the victim’s perspective. “If you are a victim of capital punishment, you have lost someone, and our religious texts say ‘an eye for an eye and a tooth for a tooth’. There cannot be better justice for someone who has killed another person than the death sentence. That is my personal view. If you kill, be prepared to be killed. The person who is at the receiving end will not see justice otherwise,” he said.

Mr Becki further advocated for the expansion of the death penalty to cover corruption.

Meanwhile, the United Nations and Amnesty International consistently argue against the reliability of the criminal justice system. A 2015 UN report indicated that “whether the offence is murder, a drug-related crime, or terrorism, the scientific evidence for deterrence is unreliable, inconclusive, and, in many instances, simply wrong.”

Mrs Adeoye of HBBA proposed a middle ground, suggesting that while some heinous crimes, such as terrorism, may sway public sympathy, the existing legal system in Nigeria does not inspire sufficient confidence to justify the death penalty.

“I must state, first of all, that international law, particularly Article 6 of the International Covenant on Civil and Political Rights (ICCPR), does not entirely prohibit the death penalty. It states that the death penalty is permitted only for the ‘most serious crimes’ and mandates that it be imposed following a lawful and fair trial process. This is a significant challenge in a country like Nigeria, where criminal justice institutions are notoriously weak and plagued by inadequacies,” she stated.

This position was also supported by Samuel Olukade and Emmanuel Okorie of HBBA, who cited instances in other jurisdictions, such as the US, where the use of DNA evidence has led to the review of cases for some death row inmates.

According to Messrs Samuel and Okorie, Nigeria’s legal framework makes it almost impossible to introduce additional evidence after the trial courts. They believe this limitation hinders the fulfilment of a “fair trial,” even in cases of “heinous crimes,” as outlined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR).

Overall, Nigeria appears to be in a predicament regarding death penalty laws, relying on governors to maintain a false “moratorium on the death penalty,” though concerns remain about the reliability of governors in preventing miscarriages of justice.

Popular opinion seems to favour the abolition of the death penalty in favour of a system that guarantees human rights, justice, and fairness for everyone.

This report was produced through the ‘Makwaayane’ Project being implemented by Hope Behind Bars Africa, with support from Cornell Center on the Death Penalty Worldwide