By Henry Ojelu
There were activities to mark this year World Day Against Death Penalty last week across the globe. In this interview, Mr. Joseph Otteh, the executive director of Access to Justice, AJ, speaks on the call for the abolition of death penalty in Nigeria, prison reforms and the rights of death row inmates among others.
Considering the fact that more countries are yielding to calls for the abolition of death penalty, how relevant is death sentence in our legal system?
Relevance of death sentence in Nigeria legal system does not seem to have changed significantly. I need to qualify that because I don’t want to give the impression that death penalty is relevant in some situation and not relevant in others. I am perhaps re-echoing what some segments of the public often highlight when people talk about very serious offences.
You will observe that whenever we have flash points in criminal behaviour, there is usually a heightened call particularly by those in power for the use of death penalty. So we see in recent years the calls for death penalty due to increase in cases of kidnapping, armed robbery and terrorism. But I really don’t think the contest has changed. I don’t think that in Nigeria, there could ever be a time when we need the death sentence more than another time. I say this not necessary from the position of an abolitionist but from the position of someone who knows how frail, how vulnerable the justice system is and how it is possible to miscarry justice.
So you don’t have to be an abolitionist to say let’s stay away from the death penalty because it is an irreversible penalty. And because it is an irreversible penalty, it is not able to correct the mistakes that our pliable, weak system of justice can produce. Even in advanced countries, you would probably have heard story of people who were sentenced to death and had been in prison for decades and suddenly DNA evidence establishedthat they were wrongly convicted in the first place.
If you had these scenarios in those countries, it is easy to imagine what will happen in a system like ours where you have very low investment in the justice system. Really, I don’t think Nigeria should use the death penalty. Of course, the world has been pro abolitionist because of these reasons and also because of the moral reason that it should not be the business of the state to be taking life but to build life and restore things that have been broken, to restore people who are vile offenders. I think for a lot of people that should be a better objective of the state. You don’t solve one wrong with another wrong. That is the argument of the abolitionist. But besides the argument, there are pragmatic grounds for saying our system should not countenance the use of death penalty.
What should then take the place of death penalty in our justice system?
For many people, particularly for those holding political office, when they clamour for death penalty, you would think that it is because they really think the death penalty would solve the crime. Often times, when they call for death penalty, it is really because they want to join a bandwagon and make it look as though they are really serious about solving those crimes.
The irony is that many times, it is not much about their seriousness with fighting crime as it is with being politically correct with the public. There are two sides to this. The first one is like this. Jesus told those who were accusing a woman in adultery, he who had not sinned, let him be the first to cast a stone. Some of those calling for the death penalty have probably done worst, particularly those holding political offices. They have probably done worst to the society than those people they want to send to the guillotine. The policies they have put in place, the misallocation of funds, their corruption has more impact on the society and hurt more people than the crimes some of these criminals actually commit. When you forcefully demolish the home of a whole community, you deprive them of their livelihood and shelter, many of those people die because of the very harsh realities you have forced upon them.
Are those deaths not avoidable?
Of course they are. When people in office steal from the public treasury, the impact of that theft can actually be much broader on the citizens than those who carry firearm and go to houses to rob people. It is bad to engage in violent crime or any crime for that matter but the point I am trying to make is that those who have gone ahead to enact death penalty are really no saints.
They are not people who have the moral authority in the first place to actually punish those who kill. The second argument is this. There has been quite a number of studies on the efficacy of the death penalty and they isn’t really any clear convincing evidence to show that the death penalty actually succeeds in reducing the crime rate than non-death penalty punishments. There is no scientific proof that shows that if the punishment for kidnapping is death penalty, it wouldn’t have a more deterrent effect than let us say the punishment was 20 or 40 years imprisonment. Empirically you would then ask, if there is no convincing evidence that the death penalty can actually led to a reduction in crime rate, then why use the death penalty. Some people say “an eye for an eye, a tooth for a tooth”. Yes there are some jurisdictions whose criminal system is based on that kind of moral philosophy but it is a very questionable
philosophy. That is why you find that most states in the world, particularly in Europe, there is a huge advocacy and movement to actually go away from the use of the death penalty. Why the state should punish, it ought not to punish in a way that makes it look like punishment is the highest value of what the state should do in that circumstance.
The element of rebuilding and restoring is actually something that we think should impact the state responsibility when you are dealing with people who have committed very serious crime.
Why do you think that Nigerian governors are not signing death warrant?
This is actually a contradiction. We have death penalties that are not being enforced. It shows you that those who have the responsibility to enforce these sentences sometimes are worried about the use of the death penalties.
If they are not, all the governor needs to do every morning is ask for the list of all those who have been sentenced to deth and sign all the death warrants. They are human after all and they know that perhaps that is not their foremost responsibility. Aside from Edo state and few others, you rarely find any state signing those warrants. I would advice this proposition. The death row is as evil as death.
These people are in blistering conditions of incarceration, extremely brutal conditions.
Rather than keep people there, not executing them, it is a lot better to commute those sentences to long terms of imprisonment so that they can be treated as ordinary prisoners. When you transition them to ordinary prisoners, they have a life and hope. They come alive again but as long as they are there, they merely exist in the shadows of death and that is not a good place to be. I would advise the governors to take the morality a step further, give those who have been sentenced to death another chance for life. It does not mean that those lives will begin immediately, but at least there are some hopes of redemption for some of them who want to turn around. It may give them the hope that it is possible to make something out of a life that has been condemned.
With the way condemned inmates are treated in Nigerian prisons, one is tempted to ask, do they have rights?
Sure they have rights. This question has been a subject of some litigation in some jurisprudence and the courts have said that they do have rights. Though they are under sentence of death, it is the responsibility of the state to ensure that all other rights that are not affected by that death sentence are respected.
For example, the fact that somebody is on death sentence does not mean the person should be starved or should be kept in solidarity confinement or should not have access to basic health care.
These are rights that death row prisoners ought to enjoy. But the reality is that many of them are treated as if they are dead and completely stripped of every right. They merely exist in the shadows of death. It is interesting that you mentioned this because we just filed a case asking the court to overturn all death sentences that were arrived at using laws that had mandatory death penalty provisions.
You will find out that many people who are in death row were sentenced to death by court or tribunals for which they cannot appeal their death sentences. Many of these people were convicted by the gross violation of their due process right.
There are cases where the court does not have the jurisdiction to say the punishment for the crime. They can’t decide whether the offence should be 30, 40 years or whether being an infant, what the punishment should be. The court is under a mandatory duty to award death penalty. So we are challenging the mandatory use of the death penalty laws.
When you visit death rows, you find cases that tug at your heart. You will find people who were sentenced to death for offences they committed just when they were about to attain the age of maturity. Some of these matters, if they were in other jurisdictions, they will never sentence such person to death because they reason that human beings, particularly when they are young, and vulnerable can do things that they didn’t think very well. There is a woman on a death row, who killed the child of her lover because he didn’t tell her he was married and had a child.
He promised marriage to her only for her to find out he was already married. In a fit of anger or jealousy, she killed the child of the lover. Killing is a horrible thing to do, but there are some circumstances in other climes that would dictate that this kind of person should not be punished with death sentence. She committed this crime when she was young and impressionable and incapable of handling such kind of rage that overwhelmed her when she made those discoveries about her lover. These are the kind of people who are in our prisons serving death sentences.
There is something really immoral about the way the criminal justice system has treated a number of people on death sentence.
Do you think there is need for more prisons in the country considering the problem of congestion and non execution of death row inmates?
The current capacity of our prisons far exceeds the standard prisoner population.
So there is a need for more modern prisons in Nigeria. But when you scratch beyond the surface, you see that perhaps the bigger problem isn’t about the capacity of the prison but that of the criminal justice system’s many flaws that account for a vast majority of those who are in prison, being people who are not even supposed to be there in the first place. So when you have a sustained convicted prisoner-awaiting trial inmate ration of 30-70 percent ratio, then you see that the prison is really not serving the need of those it was built to serve. If the people, who ought to be in prison, are the ones there, perhaps our prisons will not be populated.