By Adeniji Kazeem

The Minister’s call for Governor’s to sign death warrants for death row inmates is predicated on our criminal justice system that has continued to retain the death penalty as punishment for offences regarded as capital offences.

For instance, by virtue of Section 297(2) of the Criminal Law Ch. C17 Vol. 3 Laws of Lagos State, 2015, any person found guilty of the offence of armed robbery is convicted and sentenced to death. The same Law provides for death as punishment to any person convicted of Murder (Section 223 of the Law). However, by Section 308 of the Administration of Criminal Justice Law Ch. A3 Laws of Lagos State, 2015, the Governor upon advice from the Advisory Council of Prerogative of Mercy may commute the sentence to life imprisonment, any specific period or decide to pardon or grant a reprieve.

In circumstances where the Governor has not exercised the power granted under Section 308 above which is also supported by the provision of Section 212 of the Constitution of Federal Republic of Nigeria, 1999 (as amended), then the only available remedy is to carry out the sentence of the court as provided for in Section 309 of the Law.

But in as much as the Governors may be prepared to carry out the duty imposed upon them by signing death warrant, some of the condemned inmates have been moved from the custodial centers situate in the State territory where they were kept when judgment was delivered to another State. The Correctional Services rely on the provisions of Section 5 of the old Prisons Act (Nigeria Correctional Service Act, 2019) to move condemned inmates from Custodial Centre to another.

I am of the honest view and position that rather than keep the inmates who have been sentenced to death waiting for the hangman, the sentence should be commuted to life imprisonment as envisaged by the provision of Section 308 of the ACJL. In fact, Section 12(c) of the Nigeria Correctional Service Act, 2019 gives the Chief Judge of a State, power to commute the death sentence of any convict who has spent ten (10) years in custody to life imprisonment. All these powers are there for us to explore rather than debating on whether the Governors have signed death warrant or not.

In Kalu v State (1998) LPELR-1655 (SC) the apex court held thus; “… Section 319(1) of the Criminal Code, having regard to the provisions of Section 31(1)(a) of the Constitution, it will be necessary to set out other relevant provisions of the Constitution with a view to reading them together as a whole and thus determine whether the alleged inconsistency infact exists. I will start with section 30(1) of the Constitution which provides as follows: “30(1) Every person has a right to life, and no one shall be deprived intentionally 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”.

(Italics supplied for emphasis) Under section 30(1) of the Constitution, therefore, the right to life, although fully guaranteed is nevertheless subject to the execution of a death sentence of a court of law in respect of a criminal offence of which one has been found guilty in Nigeria. The qualifying word, save, used in section 30(1) seems to me to be the unmistakable key to the construction of that provision. In my view it is plain that the 1979 Constitution can by no stretch of the imagination be said to have proscribed or outlawed the death penalty.

On the contrary, section 30(1) of the Constitution permits it in the clearest possible terms, so long as it is inflicted pursuant to the sentence of a court of law in Nigeria in a criminal offence. In other words, section 30(1) of the Constitution recognizes the death penalty as a form of punishment but only on the condition that it is in execution of the sentence of a court of law in a criminal offence of which an accused person has been found guilty in Nigeria. The plain meaning of this section of the Constitution cannot be derogated from in the absence of any ambiguity whatsoever. It simply guarantees and protects the right to life. But it also recognizes deprivation of life so long as it is pursuant to the execution of the sentence of a court in a criminal offence of which the accused has been found guilty in Nigeria.”Per IGUH,J.S.C (Pp. 41-42, paras. E-G)

It is, therefore, safe to conclude that by our constitutional provisions and judicial authorities, the death sentence remains part of the criminal system and cannot be wished away except by legislation to amend our criminal laws to delete the death sentence as a form of punishment.