NIGERIA: ‘There’s Still a Minority of Accused Persons on Death Row Who Are Innocent’

Former president of the Nigerian Bar Association Olisa Agbakoba  restates his opposition to the death penalty in this interview with Ahamefula Ogbu

Why are some human rights activists kicking against executions in Nigeria?
We had met at the Commission on Human Rights forum in Geneva and agreed on a moratorium on execution whereby the practice had to be on hold for some time. We came back and engaged President Olusegun Obasanjo and extracted an understanding that executions have to be put on hold. Then from nowhere Edo State governor executes. I don’t know whether he was influenced by the circumstances our very good friend who was part of the human rights community, Comrade Olaitan, was killed and therefore he took it personal. The thing is that he can execute and he has done what he did and is entitled to do so. He has the power to do so but, sometimes, society depends on national or international conventions. Though it is not in the constitution, but it is accepted. So on that score I am unable to understand why it was necessary for Adams Oshiomhole to have ordered the warrant  of execution.

But some state assemblies are passing laws prescribing death penalty for certain offences like kidnapping; how does the  moratorium affect that?
The governor of a state certainly has power if the house of assembly prescribes a penalty for an offence in which death penalty is attached. There is  no question about that under the criminal code of Edo State, the governor has power to sign warrant of execution. He was right to do so legally but in view of the international status of the discussion, whether the death penalty has any real effect, I criticise the signing of the warrant as my personal opinion. The death penalty can be institutionalized and you can introduce a death penalty for a man who has no driver’s license and merely because you are a house of assembly and you pass a law then you say the governor has power to carry out a lawful execution merely because it was passed by a house of Assembly. But that is what we call nolle mala prohibiter, that means an issue is prohibited merely because he house says it is prohibited, but there are laws that are said to be bad in themselves. So that takes us to a matter that is not subject of this interview – a theory in jurisprudence between the school of law and what is just. So it depends on how you see it.

Law has many faces. Ribadu had a very strong view on corruption and he was prepared to sacrifice due process in order to get at corrupt people. I wasn’t prepared to do so as President of the NBA. I felt that even though he can see them with stolen money, he is required to go through due process because one day one innocent man may be affected. So one of the reasons death penalty is not accepted is because many people have been hanged innocently.

So it is a balance, you can never get a wholly correct answer. It is up to the person to say whether he likes it or not. In England, in the west generally except America, death penalty is abolished but America is one of the most guilty states in the world and China for death penalty, yet it is one of the most developed countries in the world professing human rights. Adams Oshiomhole says executing a person is not a violation of his right because he was also looking at the person who has been killed by this murderer who you want saved. So it is a highly complex issue that you are actually dealing with. There are lots of moral, emotional, religious, cultural factors that shape how death penalty is viewed. Even when I argued the case in the Supreme Court, cultural issues came up; as we proceeded, religious issues came in. So it is a very difficult subject, but my main worry was this: why did Adams Oshiomhole suddenly sign that death warrant even though he has power to do so? That is the main question and I think only him can answer that.

But some of these people have been on death row for 10 years…?
(interrupting) And so what? What is the meaning of one staying on the death row for 10 years for no fault of theirs. So the proper thing is to execute them?

People argue that the man in London who advocates that death penalty should be abolished may not contend with the kind of crimes we are facing here and that the situation and developmental state of our country requires that death penalty be imposed as a deterrent. Isn’t that a valid point?

That is a good question, but my question remains this: is there any evidence that because there is death penalty it has served as a deterrence to armed robbery? In fact, when Civil Liberties Organisation did a study at a time on rising crime, we established that as a result of the death penalty being imposed, armed robbers were violent. They grew from being petty thieves to being  violent criminals that would kill because they knew that if caught they will be executed. So, death penalty does not in fact, contrary to your notion, deter anything. Has it stopped corruption? It has not. What will stop corruption is a strong rule of law process whereby there is a clear perception that if you are engaged in corrupt practice you will go to jail. If you feel that death penalty will stop corruption, you are wasting your time. It will not. So if deterrence is the argument I disagree in the context of a developed society. What of those governors that stole money and are walking the streets? You and I know them, why not let’s start by shooting them?

Assuming that there is an understanding from the federal level on a legislation that execution should be put on hold and the states have their own laws prescribing the opposite, my understanding is that when the constitution clashes with any other law within the country, it overrides it. Can the states go above the prescription of the federation to stop execution to execute?
No, the federation has no power to say let’s put it on hold because the Nigerian federation runs on three levels. Powers given to the federal government is on the exclusive list; powers given to states is on the residual list then there is a third list called concurrent list where the federal government and the states share power. So the federal government has few criminal offences committed against the federation; most of the offences are state offences. To answer your question, President Jonathan cannot as a matter of policy order any state not to execute because the governor signs death warrant pursuant to the criminal code of the state. Adams Oshiomhole would have signed the death warrant pursuant to the criminal laws of Edo State, not the federal government. So the federal government cannot stop him if he wants to do so. I restate that Adams Oshiomhole has the legal authority clearly to order the execution or to reprieve the person  and nobody can stop him. Once a judge of a high court of Edo State has passed a death sentence, the only person that can stop it is the governor by way of reprieve or an appeal court overturning it. The Court of Appeal can say no the judgment was wrong or the Supreme Court. But once the Court of Appeal  has finished and the Supreme Court has finished and upholds the judgment of  the high court, there is nobody else that can stop him from being executed except the governor.

Now the argument is that before you reach the Supreme Court, you would have spent 15 to 20 years on death row so why stay there to crowd the prison, why not execute him but how do you blame a man for taking advantage of an appeal process that is corrupt, that is meant to be very slow? When he has taken advantage of the appeal process you then say lets execute him and make less of the prisoners, come on it is so ridiculous. If a person who had a death sentence passed on him in say January 2000 by 2004 has finished his appeal, then I can understand it, but a person  who spends 20 years in an inefficient judicial process fighting for his life is now said to have slowed the process and therefore left to be killed. That is another reason why death penalty is opposed because the man is trying to fight for justice rightly or wrongly and I can tell you that a very good percentage of the people on death row committed the offence, but there is also a minority of them on death row who did not do what they did and they were executed.

I can tell you a case that did not warrant a death penalty. A boy was promoted in the Nigerian Ports Authority in the 80s and they were drinking spirits to celebrate. When they were  drunk, he chased the girlfriend of another person and the guy just kicked him, not knowing he had what we call in law “egg shell body” – weak body. He fell down  and died. He had death sentence passed on him and was executed. How does that innocent act lead to the death of a person? How can the execution of another person bring the person back that was killed? So there are so many jurisprudential, sociological reasons why many of us will never support death penalty.

This moratorium you spoke about, I understand it was President Jonathan that prodded the governors to sign the death warrants. How do you see it, one President saying let’s put it on hold and another saying let’s execute?
That is what I am saying. It is a very funny situation on the federation. On the one hand, Jonathan deals with prisons, he has jurisdiction on the prisons budget and when he looks at the budget of the prisons and sees it is very high, he would be wondering, why is it very high and when he is told well you see, all these men on death row are occupying space and he will say sign the death warrant for them now. That is part of the context. But in truth, he doesn’t have authority over the legal status of the prisoners who have been found guilty and that is another very contradictory aspect of our federalism. The state governor has power over the body of the person, the president of Nigeria has power over the custody of the person. So you see how silly our federation is? The state governors have power over the body, Jonathan has power over custody. That is why Jonathan was concerned that a lot of money is being spent and he may not have known the history of all the issues. But he will say innocently: if a man has finished his chance in the court, what is he waiting for? So he advised the governors to sign death warrants because they are going nowhere anymore.

Can you talk a little bit more on the convention where the moratorium agreed on?
The United Nations Human Rights Commission was set up and it brings together a number of international instruments. There was an instrument on human and political rights, the international instrument on human and political rights. The initial one does not contain the policy on abolition of death penalty but in the course of campaigning and advocating for the abolition of death penalty, many countries began to accept that it should be abolished, so an optional clause was put into the international convention that any state that likes to abolish the death penalty was free or permitted to do so optionally. We now came and said that we don’t want death penalty at all and in the course of the meeting in Geneva, they said alright let there be a moratorium in place on executions so that no person may be executed. Although the moratorium is not enforceable, it is just a resolution that no one will be executed pending when we can look at these matters carefully because it is a very huge issue. You look at it from the international level, that of the UN to African Union, African Human Rights Commission, it takes decades to talk about conventions, to make an African state a permanent member of the UN or he is ready to obey the resolutions of the UN has taken decades. So the moratorium matter has in my view even died, it is not in force. But the main question is what pushed Adams Oshiomhole, because he has had the power and this is not his first time in office; he is on his second term. I am sure we don’t know the number of people on death row in Edo but they will be more than one; but why did he decide to execute now and not when he came in? That is a question that needs to be answered.

Taking into consideration the security situation in the country, religious and otherwise, do you think that executions would not be justified in Nigeria?
I think it will not be justified. The fact that there is a failure of a system is not the answer for a problem. Besides that, we do not have a strong system of policing and law enforcement. It is not enough to say anybody who commits a crime, cut off his head. Even with Boko Haram, it is obvious that death penalty has not deterred them. If at all, it has made them to be suicide bombers, and that is because those who have studied death penalty which is a very big subject, have seen that it does not stop anybody from committing a crime, whether it is corruption, kidnapping or whatever. A kidnapper who knows that if he is caught, he will be killed is likely to kill his victim.

But you will agree with me that in India, executions have deterred crime?
I disagree with that.

Some Indians that produced fake drugs and shipped to Nigeria were executed but their Nigerian counterparts are still here doing more harm?
The situation for the execution in India having effect is because when the law is applied, it is a latent issue you are dealing with. In China if you misbehave, even though it is a corrupt country, if you misbehave and you are found, you will be severely punished, whether it is by execution or imprisonment or whatever. I was in Enugu prison when Abacha was in power and I went there as a political prisoner and I met with  a number of people on death row and part of the conversation I had with them showed that death penalty does not deter; what deters is strong application of the law across the board. Why do we have basic crimes going on? It is because people know the laws are not strong, and the policemen will take bribe and therefore nobody is afraid and if you commit a crime in the US or in the UK on India or China, you are assured that the law will deal with you severely. But if you commit a crime in Nigeria, whether it is a crime that attracts death penalty or does not attract death penalty, both of us know that in most cases the police will let you out if you can buy your way out. It is happening, big men who are buying their way out of the criminal justice system. That is the reason why India works because any crime you commit, you will be punished according to the dictates of the offence committed.

So stronger laws and adherence to rule of law rather than death penalty will achieve more than executions?
Strict adherence to rule of law so that people will know that if you commit an offence you will be punished. Why were people afraid of Ribadu? Not because of death penalty but because if you commits an offence and he catches you, you are in big trouble. That is a strong system and system that works. If you break the traffic light in the UK, you are in very big trouble but if you break it in Nigeria, you can park by the corner and discuss with whoever you are discussing with and you will get off. That is to say we don’t have system of strong laws where people are afraid of police. They will not be afraid of what the police can do, but because the police can enforce the law. If someone puts N100,000 in his pocket today, he can practically go round Nigeria with five corpses in the boot of his car. So that is the point, if you have  much chance of being caught when you commit an offence you will caught you won’t even think of it. Impunity is the problem and not when you catch some offenders you will say let’s kill them. I am a very strong opponent of execution. Strengthen our laws, that is the way to go.

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