Court restrains govt from executing five by hanging

A Lagos High Court Judge,Justice Mufutau Olokoba,has nullified the death sentence passed on five persons.

This declaration followed an originating summons filed by Mr Norrison Quakers (SAN) in 2008, against the Attorney-General of Lagos State on behalf of the five condemned persons, who were convicted at various occasions and for various offences between 1984 and 1995. They were to die by hanging or firing squad.

The judge, who described the mode of execution of the said punishment as an infraction on the right to human dignity of the condemned persons, granted a perpetual injunction restraining the respondents (Lagos State Government) from executing the condemned persons by hanging or firing squad

The applicants had, in the summons, sought the relief of the court to declare: the prescription of mandatory death penalty for offences such as armed robbery and murder a contravention of their right to dignity of the human person as well as not to be subjected to inhuman or degrading punishment under Section 34(a) of the Constitution of the Federal Republic of Nigeria, 1999; that the Criminal Code or Robbery and Firearms (Special Provisions) Act of the Federation 1990 in the circumstances of the applicants’ case unconstitutional, null and void.

An order of the court nullifying the mandatory death sentence by hanging or firing squad imposed on them pursuant to Section 319 of the Criminal Code Law of Lagos State, Cap C18 vol.2 and Section 1(2)(a), (b) and 3 for the offence of armed robbery under the Robbery and Firearms Act (Special Provisions) Cap 398 vol. XXII Laws of the Federation 1990 and Section 367 of the Criminal Procedure Law of Lagos State, Cap C18 col.2 as unconstitutional.

Reports from expert psychologists, pathologists and forensics from the University of Lagos (LUTH), Federal Neuro-psychiatrist Hospital, Yaba and Lagos State University Teaching Hospitals (LASUTH) were filed to support the claims of the applicants that death sentence inflicts mental torture on prisoners.

In his written address, Quakers proposed that the court should determine whether the imposition of mandatory death sentence on the applicants for murder and armed robbery violated their rights to dignity as enshrined in Section 34(a) is inconsistent and in conflict with the provisions of 34(1)(a) of the Constitution since the mode of execution is cruel and degrading; whether the applicants’ continued stay or confinement on death row under threat of execution for a long period of time is inherently cruel, inhuman and degrading and whether the National Assembly can legislate or prescribe the sentence of death as contained in the provisions of Section 33(1) and (2) of the 1999 Constitution.

He argued that although the Constitution in Section 33(1) sanctions death penalty, the modes of execution by hanging or firing squad as provided in sections 367 of the Criminal Procedure Law 1(2)(a), (b) and 3 of the Robbery and Firearms Act, violate 34(1)(a) of the 1999 Constitution since it involves torture and inhuman treatment.

The applicants’ counsel opined that the very pronouncement of the sentence of death by hanging or firing squad imposes mental torture on the convict which extends to the period between the pronouncement and the actual execution; and the actual execution itself is barbaric, inhuman, degrading and violative of Section 34(1)(a) of the 1999 Constitution.

Counsel to the state in a counter- affidavit urged the court to disregard the medical reports by experts submitted as exhibits by the applicants on grounds that they do not relate to the applicants and was merely an academic work.

Citing Ogugu vs the State where the Supreme Court held that death penalty per se does not under any circumstance amount to inhuman or degrading treatment but the manner or way a condemned prisoner is kept or executed, he urged the court to dismiss the application as the applicants have adduced no iota of evidence illustrating the way and manner in which they had been treated which amounts to inhuman and degrading.

In his ruling, Olokoba held that mental torture was an inevitable consequence of death sentence on the victims.

“My view on the first part of the argument is that it is an inevitable consequence of the sentence of death. It is a common human reaction to such pronouncement. I do not think there is a man or woman who upon hearing that he has been sentenced to death would shout for joy or would not experience mental torture.

“Once the sentence is pronounced the reaction is one of sorrow, anger, despondency and extreme fear as stated in the further affidavit of Francis Moneke sworn to on October 2, 2008 which itself contains the facts disclosed to him by Professor J.O. Obafunwa, Provost of the College of Medicine, University of Lagos and also contained in the affidavit of the respondent dated March 17, 2009.

“Since the death penalty itself is constitutional any reaction to its pronouncement by the convict is necessarily concomitant to it and cannot invalidate the law providing for it,” he said.

Addressing the constitutionality of the methods of execution provided by the Criminal Procedure Law and the Robbery and Firearms Act, Olokoba said it was a violation of the right to human dignity of a person as provided by Section 34(1) of the 1999 constitution... READ FULL STORY

Code of Conduct Bureau: Help us help the President be transparent

On Sunday 24th June 2012, President Goodluck Ebele Jonathan, in his monthly media chat stunned the entire country when he brazenly stated that he will not make his asset declaration public. For him, publicly declaring his assets and liabilities was a matter of principle and he had elected not to so declare. Some have argued that the Presidents attack was on ’public’ declaration of assets and liabilities. Others insist his assault was on s.140 of the 1999 Constitution. I want to agree more with the former. I find it hard to believe the President was or could have been sworn into office in flagrant disregard of a clear constitutional requirement. However, these are strange times. Nothing is impossible in our country.

The President indeed does have a right to elect not to make his asset declaration public.  But the Code of Conduct Bureau has a duty to make the Presidents Declaration available to citizens.

S.140 1999 Constitution provides thus: ’’ a person elected to the office of President shall not begin to perform the functions of that office until he has declared his asset and liabilities as prescribed in this Constitution…….’’

S. 1 (3) (c ) Part 1 Third Schedule 1999 Constitution  empowers the Code of Conduct Bureau ‘’to retain custody of such declarations and make them available for inspection by citizens of Nigeria on such terms and conditions as the National Assembly may prescribe…’’

What this means is that declaration of assets and liabilities is obligatory. The President has no choice but to declare his assets and liabilities (to the Code of Conduct Bureau). The challenge over the years has been assessing these declarations of assets and liabilities in the custody of the Code of Conduct Bureau.  The Constitution empowers the National Assembly to draw up ‘terms’ and ‘conditions’ for public scrutiny and inspection of such declarations by public officers. These our legislators have consistently failed to do for obvious reasons.

There is however some hope - the Freedom of Information Act. It is an act of parliament and clearly contains ‘terms’ and ‘conditions’ for access to information. S.1 (1) establishes this right. It provides as follows:

Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access or request information, whether or not contained in any written form, which is in the custody or possession of any public official, agency or institution however described, is established.

It is our hope that the Code of Conduct Bureau will in compliance with Freedom of Information Act heeds the demands of interested citizens and makes available the Presidents declaration of his assets and liabilities. The President clearly needs our help and we must help him to be transparent.

Collins Okeke
Legal/Program Officer

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