HURILAWS Statement on 12th World Day Against the Death Penalty

LAGOS, Friday, October 10, 2014: Nigeria has applied the death penalty for more than 50 years with no serious attention paid to mental health. Mental health is a critical factor to consider at every stage of the death penalty process from before a person commits a crime through governments execution of the convicted person, and even post execution, as the death penalty affects the mental health of the families concerned.

Nigerian law recognizes insanity when proved as an exemption to criminal liability for capital offenses. However, it is unclear on other forms of mental health problems like mental retardation or personality disorders. Mental retardation is a condition in which a person’s mental capacity has not developed during childhood and adolescence leaving the person less able to adapt to independent life and decision making. Personality disorder is not a mental illness that can be treated with drugs or therapy but rather constitutes a behavioral condition in which the affected person can lack empathy and understanding of others and can disregard social and legal conventions.


Dr. Olisa Agbakoba, SAN has challenged the decision of the Nigerian Army General Court Martial that convicted and sentenced 12 soldiers to death by firing squad for mutiny and other offences on 16th September, 2014.

In Suit No. FHC/ABJ/CS/708/2014 filed by the human rights lawyer at the Federal High Court, Abuja Division, on behalf of the 12 condemned soldiers, the decision of the Court Martial is being challenged on the ground that the composition of the Court Martial is unconstitutional and contrary to Section 36(1) of the Constitution which guarantees a fair trial to accused persons by a tribunal constituted in such manner as to secure its independence and impartiality.


Justice A.R Mohammed of the Federal High Court Abuja has this morning declared unconstitutional the Executive interference with judicial funding. The Court held that the continued dependence of the judiciary on the Executive Arm for its Budgeting and funds release violates Section 81 (2) and Section 84(1), (2), (3), (4) and (7) of the 1999 Constitution of the Federal Republic of Nigeria.

If you recall on 07th February, 2013, Dr Olisa Agbakoba SAN (the Plaintiff), approached the Court to challenge the present appropriation practice whereby the Judicial Arm of Government is dependent on the Executive Arm of Government for judicial estimates and funding. In the case, Olisa Agbakoba v (1)Attorney General of the Federation, (2) The National Judicial Council & (3) The National Assembly. Dr. Agbakoba SAN sought the following reliefs which were all granted by the Court:

1.       A Declaration that by Section 81 (2) and Section 84(1), (2), (3), (4) and (7) CFRN 1999 the remuneration, salaries, allowances and recurrent expenditures of the Judiciary, being constitutionally guaranteed charges (or "First Charge") on the Consolidated Revenue Fund of the Federation, DO NOT form part of the estimates to be included in the Appropriation Bill as proposed expenditures by the President as is the present practice.

2.         A Declaration that by virtue of the constitutional guarantee of independent funding of the judiciary under Section 81 (1), (2) and (3) (c) and Section 84(2), (3), (4) and (7) of the Constitution of the Federal Republic of Nigeria 1999 (CFRN 1999), the 2nd Defendant ought NOT to send its annual budget estimates to the Budget Office of the Executive Arm of Government or any other Executive Authority as is the present practice BUT ought to send the estimates directly to the 3rd Defendant for appropriation.

3.         A Declaration that by virtue of Section 81 (3) CFRN 1999, any amount standing to the credit of the Judiciary in the Consolidated Revenue Fund of the Federation ought NOT be released to the Judiciary in warrants or other means through the Federal Ministry, the Budget Office, the office of the Accountant General of the Federation or any other person or authority in the Executive Arm as is the present practice, BUT to be paid directly in whole to the 2nd Defendant for disbursement.

4.         A Declaration that the continued Dependence of the Judiciary on the Executive Arm, represented by the 1st Defendant for its Budgeting and Funds Release is directly responsible for the present state of under-funding of the Judiciary, poor and inadequate judicial infrastructure, low morale among judicial personnel, alleged corruption in the Judiciary, delays in administration of justice and judicial services delivery and general low quality and poor out-put by the Judiciary.

5.         A Declaration that the present practice on Judiciary funding by the Defendants, which is DEPENDENT on the Executive Arm in budgeting and release if funds IS in violation of section 81 (2), (3) (c) and 84(2), (7) CFRN 1999 and therefore unconstitutional, null and void.

6.         Perpetual injunction against the Defendants from all practices on Judiciary funding which run contrary to Sections 81 (2) (3) and 84(2) (7) CFRN 1999, to wit, submitting Judiciary's estimates to the Executive instead of directly to the 3rd Defendant and release of the Judiciary's fund in warrants by the Executive instead of directly to the 3rd Defendant for disbursement.

7.         A Consequential Order, restraining the 1st and 3rd Defendants from appropriating the funds for the Judiciary in the Annual Appropriation Act.

8.         A Directive that the 2nd Defendant shall prepare the Judiciary's annual estimate as charged upon the Consolidated Revenue Fund of the Federation and submit it to the Accountant General of the federation for Constitutional Transfer to the 2nd Defendant.

This is a major victory for the Judiciary.

Babatunde Ogungbamila
HEAD LITIGATION; Olisa Agbakoba & Associates

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