Law & Human Rights

May 6, 2010

Death penalty – a dying fashion

By Dupe Atoki

In 1948, when the United Nations General Assembly adopted the Universal Declaration of Human Rights, the first international human rights instrument to proclaim that “everyone has the right to life”, only 7 countries had abolished the death penalty. The Declaration proclaims a “right to life” in an absolute fashion, any limitations being only implicit.

By the late 1950s and early 1960s, abolitionists’ movements emerged, spread across the world campaigning for the abolition of the death penalty. The international trend to abolish the death penalty was also embraced by the African continent, where it coincided with the introduction of multi-party political systems and the empowerment of civil society. At the regional level, human rights instruments were adopted and mechanisms established to campaign for the complete abolition of the death penalty or limit their application. The foremost Pan-African human right instrument is the African Charter on Human and Peoples’ Rights which was ratified by all African States and came into force on the 21st October 1986.

Articles 4 and 5 of the African Charter guarantee the right to life and respect of the dignity inherent in a human being. The African Commission on Human and Peoples’ Rights (The African Commission) the main human rights’ mechanism established under the African Charter to ensure its compliance and implementation passed several resolutions urging states to stay executions of death sentences.

Currently, of the 192 countries on the planet, 111 countries have de facto or de jure abolished the death penalty. In 1990, Cape Verde was the only African country that had no provision for capital punishment in its legislation. Currently, several African countries have abolished the death penalty for all crimes, others have imposed a moratorium on executions; and others still have retained the penalty.

By 2008, 14 countries in Africa had de jure abolished the death penalty, while 10 others had de facto abolished it. Today, about half of the countries on the continent no longer execute prisoners convicted for capital offences. 30 African countries including Nigeria have ratified the Rome Statute of the International Criminal Court (ICC), which provides life imprisonment as the maximum penalty that the Court can impose.

Section 33 of the Nigerian Constitution guarantees the right to life, save in the execution of a sentence of a court order in respect of a criminal offence. It is in this context that the country derives its authority on the use of death penalty.

Former President Olusegun Obasanjo repeatedly declared his opposition to the death penalty and initiated the National Study Group on the Death Penalty with a mandate to conduct a national debate on the issue and to make recommendations to the Federal Government. The National Study Group on the Death Penalty in October 2004, presenting its report to the Federal Government, called on the government to impose a moratorium on executions and commute to life imprisonment the sentences of all death row prisoners whose appeals have been concluded. Furthermore, all executions should be put on hold until the Nigerian justice system can deliver fair trials and due process. As the report puts it ‘’ a system that would take life must first give justice’’.

As a former commissioner with the National Human Rights Commission, the writer has visited several prisons and observed that the conditions under which inmates are held are inhuman, degrading and violate the rights of detainees. Prisons in Nigeria are overcrowded and this, sadly, is due to the overwhelming number of awaiting trial inmates. Data from the Nigerian Prison services show that out of a total number of about 42,000 inmates nationally, 79% have not been convicted as they still await trial. Of this number a little less than 1,000 are on death row.

Following the recent jail break in Kaduna, the governors rising from their Forum recently gave a matching order for the execution nationwide of inmates on death row. In their wisdom this is the panacea to the prison congestion and jail break. However, simple logic or elementary calculation will reveal how much space the elimination of 0.20% inmates will create in the ‘multitudes’ that are in our prisons.

Overpopulation of prisons is the huge stem from which other violations grow. It nourishes crowdedness which breeds diseases mostly infectious and sometimes, terminal; it stretches resources, facilities and other infrastructures, leading to poor clothing, underfeeding, inadequate medical service and general inhumane treatment. Discontent of prisoners arises from inadequacy of these infrastructures and lead to prison riots and other prison incidents.

The recent jail break in Kaduna is a wake up call for government to rise to its regional and international obligations. Data from the Prison Service show that no less than 7 jail breaks have occurred in the country in the last one year. As long as conditions of detention remain inhuman, inmates will strive to escape with the potential of undermining the peace and security of the community and the county as a whole. This, in the writer’s opinion, is the nut that is begging to be cracked. Governors and indeed the Federal Government should engage in an aggregate discourse to ensure a functioning administration of justice. Several Presidential Committees have been set up by past administrations to examine the prison conditions and the overall administration of justice. Recommendations proffered remain unimplemented. Executing inmates on death row in this wise is only palliative, the disease remains untreated. (The gamut of issues surrounding the administration of justice in the country cannot be adequately discus
sed in this write up).

In September 2009, a communication against Libya was filed with the African Commission by a Nigerian NGO _ Social Economic Rights Accountability Project (SERAP). It alleged that over 200 Nigerians are on death row for offences ranging from immigration, murder, drug and armed robbery. The Commission requested President Mummar Gaddafi for a provisional measure to stay execution pending the determination of the communication. Happily, the President obliged and for now there is a hold on the execution of the convicted Nigerians.

If regional instruments to which Nigeria is a signatory can deliver justice to Nigerians living abroad should same not come to play to prevent Nigeria executing its own under its watch? The death sentence is an affront to human dignity. It is inconsistent with the unqualified right to life entrenched in the Universal Declaration of Human Rights and other international and regional instruments to which Nigeria is a party. It cannot be corrected in case of error.

Crime to which the use of death penalty seeks to assuage is rooted in the complex reality of contemporary society, including those social conditions of poverty and injustice which often provide the breeding grounds for serious crimes. More attention should therefore go to addressing the root causes of crime than to enlarging death row. Abolition should send a message that we can still break the cycle of violence; envisage more humane, and more effective responses to the growth of violent crime.  In today’s world of expanded rights, advanced technology and greater respect for human rights and democracy, there should to be no place for capital punishment _ it is no longer fashionable, its abolition is much more honorable. The obligation to so do remains with the state. The Federal government should impose a moratorium on executions and commute to life imprisonment the sentences of all death row prisoners whose appeals have been concluded.

As Justice Chaskalson of the South African Constitutional Court, aptly put it in the historic opinion banning the death penalty: “The rights to life and dignity are the most important of all human rights . . . . And this must be demonstrated by the State in everything that it does, including the way it punishes criminals.”

Dupe Atoki, a lawyer, is a commissioner in the African Union Commission on Human and Peoples’ Rights and the Special Rapporteur on Prison and Places of Detention in Africa.