02/07/2020
3. Addressing the Need for Reform.
The natural consequence of the above discourse is the dire need to address certain anomalies. These range from the issues in connection with arrest and police investigation, bail, trial, appeal, prison detention, amnesty procedure, and ex*****on. There is no gainsaying that under common law practice associated with adversarial or accusatorial culture of fact finding, the conduct of investigation belongs to the Police. This is so under the Nigerian justice and police system. Yet, a lot of irresponsibility dots the terrain of the entire arrangement. Thus, the coercive effect of slaps, kicks, knocks on the head and other forms of torture and inhuman treatment is so overwhelming and creates an enabling atmosphere for not only bribery and other sharp practices but also forced confessions, admissions under duress, and so on. This should call for serious doubt with regard to the integrity of any evidence gathered from such fora. How then can one rely on such evidence to justify the imposition of the death penalty in the first place not to talk of using it for a whole score of offences? Again, if the Police stand tall to its responsibility of surveillance, there would be no need for refusal of bail by the relevant courts or granting bail with excessive conditions even in capital cases.
Moreover, what happens at trial does not even fare better.
There are not a few instances of unfairness in the trial procedures experienced in our courts. This is in spite of the provisions of the ICCPR which state that imposition of the death penalty following an unfair trial is a breach not only of the procedural norms but also of the right to life itself. According to United Nations Human Rights Committee (HRC), the procedural guarantees under articles 6 and 14 of the ICCPR must be observed.67 These include the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for defence, and so on. The HRC has also stated that where article 14 of the ICCPR, which provides for the right to fair hearing, is violated during a capital trial, article 6 of the Covenant is also breached.68 The African
67 General Comment 6 (16). 68 Reid v Jamaica (No. 250/1987) para 11.5.
25Commission also notes that the right to life under article 4 of the ACHPR is violated where the right to fair trail is violated.69
Certainly, Nigerian criminal jurisprudence provides for all these procedural guarantees. However
, the problem is that of implementation. Sometimes, it is as a result of incompetence on the part
of lawyers and the judicial officers. This is true as some lawyers are not diligent enough to
prepare themselves even in most serious capital cases. In the same vein, some judicial officers
are beneficiaries of patronage appointments that did not consider qualification, which attitude
cannot breed anything less than pervasive mediocrity in the system. There are some other key
factors such as the demerits of the adversarial system itself which pit the lone individual against
the awesome state apparatus, the problem of poverty and hence limited or no access to
qualitative defence counsel, lack of legal aid or poor quality thereof. There is no doubt that
throughout the world, death penalty is often applied disproportionately to the disadvantaged
people on the lower social scale. This was partly why the US Supreme Court struck down the
death penalties imposed on Furman70 and Gregg,71and held that the death penalty was imposed
discriminatorily against black offenders.
The appeal mechanism is yet another issue worthy of some comments. Article 7 (1) (a) of the
ACHPR provides for the right to appeal to competent national organs against acts violating
fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs
in force.72 Hence, trials which do not allow any avenue of appeal violate the said provision.
Surely, the Nigerian Constitution provides for the right to appeal, which nevertheless can only
apply in a wayfaring democracy. Decades of military dictatorship with its command culture had
often trampled on this right. However, the appeal mechanisms in place are unlikely to have the
effect of reducing the application of the death penalty as envisioned by the ICCPR. For one thing
, the Nigerian judiciary is marred by corruption, among other problems. For another, the
mandatoriness of death penalty in our statute books is also reinforcement to the application of the
{69 Communications
25/89, 47/90, 56/91, 100/83.
70 Furman v Georgia, 408 US 238, 92 S.Ct. 2726, 33L.Ed. 2d, 346 (1972).
71 Gregg v Georgia, 428, US 153 (1976).
72 Communication 87/93, Constitutional Rights Project v. Nigeria (in respect of Zamani Lekwot & Ors) &
Communications 60/91, Constitutional Rights Project v. Nigerian (in respect of Wahab Akamu & Ors), Eight
Annual Activity Report, 1994-5.}
26
extreme punishment in spite of the right to appeal in a country where such rights are rarely exercised due to poverty.
Perhaps, it is only the provision for executive clemency that can ameliorate the anomaly. Yet amnesty, pardon or commutation of death sentence is the sole prerogative of the President or the Governor. Although provision is made for the Advisory Committees on the Prerogative of Mercy , their advice is not necessarily binding on the President or the Governor. As such, it is really up to the President or the Governor to decide on when and who to kill or give amnesty, pardon or whose sentence to commute. This can be abused. It is also unlikely that the President will pardon political offences such as treason.
The above procedural inadequacies most frequently result to loss of life of an innocent party. Thus, it is strongly suggested that considerable restraint be exercised in choice of punishment with a preference for punishment other than death in recognition of our foibles and the possibility of wrongful ex*****on of an innocent which flows from such fallibility.73
The foregoing analysis has also offered us an opportunity to examine other constitutional and statutory problems in relation to loss of life of individuals in criminal justice process. The first to consider is the constitutional derogation from the right to life as it relates to defence of property, effecting a lawful arrest, preventing escape of a person lawfully detained, and suppressing a riot, insurrection or mutiny as provided for in section 33 (2) (a) (b) (c). Whereas killing in selfdefence74 can be excused as a natural protective reaction sequel to the natural instinctive principle of self- preservation, the killing of a human being in defence of property appears rather callous and disproportional. Yet, the courts have at least in one instance, in the case of Musa v The State,75 upheld a homicide committed in just those circumstances. This attitude does not augur well with our traditional sensibilities. Onwubiko notes that “any form of materialism which ultimately leads to the destruction of life is alien and destructive of African tradition”.76
{73 M.L.Radelet, Bedau & Putnam, In Spite of Innocence: Erroneous Convictions in capital Cases, Northereastern Univ. Press, Boston, 1992. Cited in W. A. Adeleke, “The Death Penalty: For & Against”, Vanguard, April 30, 2004, 26.
74 First Limb of section 33 (2) (a) C.F.R. N., 1999. 75 (1992) 2 All NLR 550. 76 O. Onwubiko, African Thought, Religion and Culture, Snaap Press Ltd, Enugu, 1991, 22.
27}
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