The 6th World Congress against the Death Penalty was held 21-23 June 2016 in Oslo, Norway at the Opera House. I was privileged to participate in the congress. It was exciting meeting with, debating and sharing knowledge and experience with hundreds of abolitionists from different parts of the world. The two day event was packed full with two plenary sessions, six roundtables, six workshops and nine side events. I was able to participate in discussions on the following topics: Progress and setbacks in Asia lessons learnt; The political use of the death penalty in counter terrorism; Legal, social, and medical perspectives on protecting individuals with mental disorders from the death penalty; The importance of National Human Rights Institutions to the abolitionist cause; The Draft Protocol to the African Charter on Human and Peoples Rights on Abolition of the Death Penalty in Africa; Facing the Challenges of alternatives to the Death Penalty.
It was encouraging to hear at the Congress that China is reforming by reducing crimes to which the death penalty applies. They amended their criminal laws removing 9 crimes punishable by death including: smuggling weapons, ammunition, nuclear materials or counterfeit currency; counterfeiting currency; raising funds by means of fraud; arranging for or forcing another person to engage in prostitution; obstructing a police officer or a person on duty from performing his duties; and fabricating rumors to mislead others during wartime. It is the second time China has reduced the number of crimes punishable by death over the past 5 years.
Some countries in Africa (including Nigeria) and the Middle East appear to be doing the opposite by extending crimes to which the death penalty applies in the guise of fighting violent terrorism, even when there is no proof that the death penalty can stop terrorism. I was not surprised to hear complaints of how Egypt misuses the fight against terrorism to silence the opposition, criminalize human rights related activities and more generally violate human rights. The best way to solve crime is to prevent it or at best apprehend the offender. When a criminal justice system is too weak to resolve crimes and apprehend offenders, the penalties, no matter how severe will have no deterrent effect.
The session that generated so much interest amongst African participants was the session on the Protocol to the African Charter on Human and Peoples Rights on the Abolition of the Death Penalty. The draft protocol was introduced during the first conference on the death penalty in Africa organized by the African Commission in collaboration with Benin Republic in Cotonou, sometime in July 2014; it was supported by many representatives of AU Member States, Members of Parliament, National Human Rights Institutions and Civil society Organizations. The African Commission on Human and Peoples Rights (ACHPR) officially adopted the draft protocol at its 56thordinary session in April 2015 and submitted it to the AU for adoption.
It requires member states to commit to protecting the right to life and abolishing the death penalty while respecting their sovereignty. This protocol is unique because it is indigenous to Africa. It shows the will of African governments to openly deal with the question of death penalty and prove the importance of this issue on the continent. The general trend in Africa is to abolish the death penalty. As of 1 January 2016, the majority of African Union’s Member States have legally abolished the death penalty (19) or apply a de facto moratorium on capital punishment (18); only a minority retains the death penalty (17). Our Federal Government as a matter of fact needs to change course by ratifying this protocol.
The session on mental illness and intellectual disability highlights gaps in most criminal justice systems, especially the distinction between Mental illness (what we call insanity) and intellectual disability. Nigerian law for instance 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 intellectual disability (often referred to as mental retardation or learning disability) and 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.
In its 2014 moratorium resolution, the UN General Assembly, called on states not to impose the death penalty on individuals with mental or intellectual disabilities. The General Assembly’s resolution reinforced long standing principles prohibiting such executions under international law. Nevertheless, few countries have enacted sufficient protections for persons with mental illness or intellectual disability. Lawmakers, judges, lawyers also lack awareness of the varied symptoms of mental illness, and fail to understand the different between mental illness and other disorders.
I was excited to hear that our National Human Rights Commission has taken interest in the campaign for abolition of the death penalty in Nigeria. The question of abolition and related issues such as the right to fair trial and conditions of detention are entirely related to what they do. It is important to engage even further this often neglected player and rally new and often reluctant institutions to the abolitionist cause. Finally, there is urgent need to think very deeply about alternatives to the death penalty. When the death penalty is abolished, what next? The solution cannot simply be life sentence without parole; it should take cognizance of the victims of crime and give hope to condemned persons. My general assessment is that great progress has been made around the world but a lot more needs to be done. It is my hope that at the next congress a lot of the challenges identified would have been resolved and a lot more countries would have abolished the death penalty.
SUPREME COURT JUDGEMENTS ON GOV. POLLS: A GOAL OR OWN GOAL
The Supreme Court surprised bookmakers on 27th January and 3rd February 2016 when it decided the governorship elections in Abia, Akwa Ibom and Rivers states in favour of Okezie Ikpeazu, Udom Emmanuel and Nyesome Wike of the People’s Democratic Party (PDP). Many had predicted the opposition candidates would carry the day. Unfortunately that was not the case.
The apex court disagreed with decisions of the lower courts especially in Rivers and Akwa Ibom and validated returns of the Independent National Electoral Commission (INEC). The Supreme Court has not provided reasons for its decisions but many believe their Lordships may have overruled evidence from the card readers.
The apex court decision is a big win for the PDP but the bigger question is; where do we go from here? Can the PDP or any opposition party going forward be able to defeat incumbent APC in a federal election without card readers? It is not impossible, but certainly will be very difficult.
The card readers we had hoped would empower the voter and create a level playing field for all political parties and candidates. But if the card readers are discountenanced at least until incorporated into the Electoral Act; what happens if the National Assembly now populated by the APC fail to make provision for card readers in the Electoral Act?
The country may be back to square one. A situation where free and fair elections will again be at the benevolence of the President. In my estimation, the PDP may have sacrificed a system that would have guaranteed their comeback to power on the altar of these three states. Our Supreme Court may have also inadvertently truncated a process that would have sanitized our elections. We can only hope and pray the APC led National Assembly take the higher ground by ensuring card readers are incorporated into the Electoral Act.
DEATH PENALTY AND MENTAL HEALTH IN NIGERIA
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.
Instances abound every day in Nigeria where accused persons with serious mental health problems are put on trial without adequate support where they are unable to participate effectively in their own defence. A case in point which adequately captures Nigeria’s disregard for mental health conditions is that of late Mr. Clifford Orji. Mr. Orji, it will be recalled, was arrested on February 3, 1999 at Toyota Bus-stop along the Apapa-Oshodi expressway in Lagos for allegedly preying on unsuspecting passersby as a cannibal. He was paraded before newsmen as “mentally depraved”. The Divisional Police Officer of the police station where he was taken said at the time “from his actions during interrogation, it is obvious the man is mad” He cited three reasons for his convictions: people who live around the area said the man was often naked. Again he was incoherent while responding to questions. And, thirdly, the police picked him naked and provided him with a pair of shorts thereafter. Even before any psychiatric evaluation, it was obvious to the police that Mr. Orji was not normal; which meant that he needed help. But he was still arraigned at the Ebute Metta Magistrate Court and remanded at Kirikiri prison. Despite interventions on his behalf by prison authorities and civil society organizations, the Lagos state government did not provide him any care. Mr. Orji died on August 3, 2012 in Kirikiri prison. He spent 13 years in prison without trial and care.
Shocking reports have also been received of families that collude with the police to remand in prison family members with mental health problems to avoid taking care of them. Federal and State Governments in Nigeria need to extend exemptions to criminal liabilities to include mental retardation and personality disorder especially for capital offenses, and where necessary make adequate provision for legal assistance for accused persons with mental health conditions. Mental health is not a crime. We should Care and Not Kill.