Nigeria’s Debate on Capital Punishment: Sign Execution Warrants or Impose a Moratorium?
June 21, 2019—The Cornell Center on the Death Penalty Worldwide recently updated Nigeria’s country report. Led by Research Associate Paulina Lucio Maymon, this update comprehensively captures the most recent developments in Nigeria’s use of capital punishment and marks a significant contribution to achieving transparency in death penalty laws and practices. As the largest economy in Africa, Nigeria is an influencer in the whole region. It is estimated that by 2047, Nigeria will become the world’s third largest nation, surpassing the population of the United States.
The Death Penalty in Nigerian Law: The World’s Longest List of Capital Offenses
Nigeria is one of only ten countries in Africa to have carried out executions in the last ten years, leading to its classification by the UN as a retentionist death penalty state. No other country in the world punishes a longer list of offenses with death. Unlike other countries whose laws provide for numerous capital offenses, such as China or Iran, there has been no recent trend to restrict the scope of the death penalty in Nigeria. On the contrary, state legislatures regularly propose new death penalty laws for kidnapping, cultism, and other offenses. Most recently, Katsina State approved capital punishment for cattle rustling. By the end of 2018, Nigeria’s death row of at least 2,000 inmates was the largest in Sub-Saharan Africa. According to Amnesty International, at least 46 new death sentences were imposed in 2018 and 621 in 2017.
Our new death penalty report sheds light on Nigeria’s exceptionally complex legal system. Nigeria operates under a federal system comprised of three legal traditions: customary law, Shariah law, and English common law. It contains 37 jurisdictions (36 states and the Federal Capital Territory (FCT), Abuja), each of which passes its own penal laws defining crimes and penalties, in addition to federal criminal law. Twelve northern states have incorporated Shariah law into their criminal laws, introducing new capital offenses based on religious principles, particularly on issues of sexual morality such as same-sex relations, incest, and adultery.
Numerous crimes, including non-lethal crimes, are death-eligible in Nigeria. These include murder, armed robbery, rape, “cultism,” kidnapping, terrorism-related offenses, and treason. In the Northern Region, where Shariah law is applied, adultery, apostasy, incest, same-sex sexual relations, and witchcraft also carry the death penalty. Nigeria continues to impose mandatory death sentences, which leave judges with no discretion to impose a lesser sentence if the defendant is convicted. Mandatory death sentences violate international human rights law and are on the decline around the world.
Unlike most jurisdictions, Nigerian law provides for more than one method of execution. Lethal injection, hanging, and shooting are the prescribed methods of execution, but lethal injection has not been used since its introduction in 2015 by the Administration of Criminal Justice Act. In the Northern Region, Shariah law prescribes beheading, stoning, and crucifixion as methods of executions for certain offenses. Nigeria last executed three individuals by hanging for armed robbery in 2016. The executed men reportedly had appeals outstanding, and may therefore have been executed in violation of Nigerian and international law.
Some recent legislative reforms, however, offer signs of improved compliance with international human rights standards. Since the enactment of the 2015 Administration of Criminal Justice Act—a unified procedural law applicable in all federal courts with respect to federal criminal offenses—no person under the age of 18 may be sentenced to death. Previously, only children under age 17 were excluded from capital punishment, in defiance of international norms. The law also ensures that pregnant and nursing women cannot be executed in Nigeria. The Act also makes it mandatory for courts to assign a state-funded defense lawyer to indigent capital defendants at trial.
The Death Penalty in Practice
The gap between black letter laws and their practical implementation is conspicuous in Nigeria, as in many other death penalty states. Our research indicates that capital defendants rarely receive adequate legal representation due to lack of resources and systemic failures. Poor and indigent defendants struggle to access legal representation, particularly at the appellate level. In-country experts note that few attorneys specialize in criminal defense and that the government sometimes appoints inexperienced attorneys to represent those facing capital charges. Prisons and death rows are overcrowded in the entire country. Prison overcrowding is partly due to a dearth of lawyers for accused and convicted persons. As of May 2019, a total of 49,875 inmates, or 68% of the total inmate population, was awaiting trial.
Furthermore, human rights organizations have documented numerous allegations of torture or other ill-treatment in police custody. It is common for police officers to extract confessions during pre-trial detention when prisoners have no access to a lawyer. Suspects are often arrested arbitrarily and detained incommunicado. They are not informed of their rights, have no access to lawyers, and may be detained for years without trial. The majority of those awaiting trial come from disadvantaged backgrounds.
At the same time, Nigeria has signaled potential for change through the implementation of positive legal reforms to improve fair trial procedures. For instance, in December 2017, President Muhammadu Buhari signed the 2017 Anti-Torture Act, which criminalizes acts of torture and other cruel, inhumane, and degrading treatment. A torture conviction can carry up to 25 years in prison. The 2015 Administration of Criminal Justice Act introduced provisions on humane treatment during arrest and gave courts enhanced authority to suspend sentences, prescribe community service, and grant parole.
Signals for the Future
Since 2017, an internal debate has been taking place in Nigeria on how to reduce the death row population and address prison congestion: Should governors sign execution warrants or commute death sentences? While some governors have argued in favor of carrying out executions, Attorney General Abubakar Malami has asked state governors to act in line with section 212 of the Nigerian Constitution, which gives governors the power to review cases and grant mercy. In 2018, according to Amnesty International, 32 death row inmates had their sentences commuted and 16 were granted pardons.
On the international stage, Nigeria has been signaling a change in its attachment to capital punishment. In 2007 and 2008, Nigeria voted against UNGA Moratorium resolutions, which call for the establishment of a moratorium on the use of the death penalty. Since then, however, including in last year’s moratorium vote, Nigeria has registered an Abstention vote on UNGA Moratorium resolutions. In its 2018 Universal Periodic Review, Nigeria reported to the U.N. Human Rights Council that the federal and state governments were negotiating the adoption of an official moratorium on capital punishment. The result of these negotiations remains to be seen.
View the complete country update here.