Death sentence: Is a trial judge bound to pronounce specific manner of execution? (1)

By S.O. Akobe

Nigeria is one of the many Nations of the world where Capital Punishment still holds sway. Despite calls by many proponents for the abolition of Capital Punishment across the globe, Capital Punishment is still in vogue in Nigeria. By capital punishment, we mean death sentence passed by a court of law on an offender who has been found guilty of a capital offence. Capital punishment or death sentence is constitutionally recognized in Nigeria. Section 33 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that, “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria” (Emphasis mine).

For an offender to be sentenced to death, the law creating the offence must have specified death as the punishment thereof as contemplated under section 36 (12) of the Constitution. Under the Nigerian Criminal Jurisprudence, the following offences attract death penalty to wit: Murder/Culpable homicide punishable with death, Treason, presiding over a trial by ordeal resulting death, and Armed Robbery. It is interesting to note that some States in Nigeria have also enacted laws which make the offence of kidnapping punishable with death. Thus, where a defendant or an accused person as the case may be, is found guilty of any of these listed offences, such a defendant or an accused person must be sentenced to death by the court, as no degree of allocutus plea can change the verdict of being condemned to death.

On how death sentence should be passed and/or pronounced by a trial court, we shall consider the Supreme Court decision on the issue as well as the provisions of the Administration of Criminal Justice Act, 2015 (which is in pari materia with that of the Administration of Criminal Justice Law of Kogi State, 2017), the Criminal Procedure Act, the Criminal Procedure Code, and the Armed Robbery and Firearms (Special Provisions) Act CAP. R11, LFN, 2004. The Administration of Criminal Justice Act, 2015 (hereinafter simply referred to as ACJA, 2015) applies to criminal trials in all federal-established courts as well as all the courts in the FCT. The Criminal Procedure Act (hereinafter referred to as the CPA) and the Criminal Procedure Code (hereinafter referred to as the CPC) apply to criminal proceedings in all the courts in the South and North respectively, especially in the States that are yet to enact their own Administration of Criminal Justice Law as was commendably done by Kogi State in 2017.

Now, for the South, section 367(1) of the CPA provides: “The punishment of death is inflicted by hanging the offender by the neck till he be dead”.

Section 367 (2) of the CPA further provides that, Sentence of death shall be pronounced in the following form The sentence of the court upon you is that you be hanged by the neck until you be dead and may the Lord have mercy on your soul” (Emphasis mine).

For the North, section 273 of the Criminal Procedure Code provides that, “When a person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead” (Emphasis mine).

Though not a procedural law, section 1(3) of the Robbery and Firearms (Special Provisions) Act CAP. R11, LFN 2004, provides that, “The sentence of death imposed under this section may be executed by hanging the offender by the neck till he be dead or by causing such offender to suffer death by firing squad as the Governor may direct”.

Now, coming to the ACJA, 2015, section 402 (1) of the Act provides: “Punishment of death is inflicted by hanging the convict by the neck till he is dead or by lethal injection”.

Section 402 (2) of the said ACJA, 2015 further provides that, Sentence of death shall be pronounced by the court in the following form: “The sentence of the court upon you is that you be hanged by the neck until you are dead or by lethal injection” (Emphasis mine).

The above cited provisions of the ACJA, 2015 are in pari materia with the provisions of section 400 (1) (2) of the Administration of Criminal Justice Law of Kogi State, 2017.

From the provisions of all the laws cited above, it is very clear that the following means or modes of execution of death sentence are legally recognized in Nigeria:

(a) By hanging in the neck (as provided in the CPA, CPC, Armed Robbery and Firearms (Special Provisions) Act, the ACJA, 2015, and the ACJL of Kogi State, 2017);

(b) By Lethal Injection (as provided for by the ACJA, 2015, and the ACJL of Kogi State, 2017); and

(c) By Firing Squad (as provided for by the Robbery and Firearms (Special Provisions) Act)..

The above means of executing death sentence having been stated, the next crucial question is whether it is mandatory for a trial court to pronounce the particular means or manner by which a convict who has been found guilty of a capital offence must die or executed? In other words, if a trial court finds a defendant guilty of a capital offence, is the trial court bound to follow strictly the provisions of the above cited laws (whichever is applicable) when passing or pronouncing death sentence on the defendant? Put in another way: What is the effect of non-compliance with the provisions of the above cited laws on a death sentence passed on a convict by a trial court? The Supreme Court of Nigeria was faced with this question or issue for determination in the case of Gano v. The State (1968) 1 ALL NLR 353; (1968) NSCC 285. In the said case, the Appellant was found guilty of the offence of culpable homicide punishable with death contrary to section 221 of the Penal Code. The trial judge in sentencing the Appellant to death simply stated thus, “Sentence of death passed”. On appeal to the Supreme Court, it was contended for the Appellant that the trial judge violated the provision of section 273 of the Criminal Procedure Code which requires that a judge while pronouncing death sentence on a convict “shall direct that he be hanged by the neck till he is dead”. Based on this, the Appellant urged the Supreme Court to hold that the death sentence pronounced on him by the trial court cannot be carried out, and that the said sentence is incurably bad as the trial judge had become functus officio on the matter. In its judgment, the Supreme Court held as follows:

“It is clear that the learned judge has failed to incorporate in his judgment the statutory direction. We have been asked to say that as the judge gave no direction as to what manner the sentence of death was to be carried out, as he was obliged to do by law, the sentence could not be carried out, and the learned judge is functus officio. We are in agreement with counsel that it is the duty of the judge, under the law, to pronounce the manner in which the sentence was to be carried out, and failure to do so might raise an apprehension that the execution could be carried out by any other means, as for example by poisoning, drowning or any other means; but as it is clear that the only mode of execution known to our law is by hanging by the neck till the convict is dead, we are unable to accept that any other mode of execution was contemplated by the judge” (Emphasis mine).

Going further, the Supreme Court held thus: “We are, however, not unmindful of the fact that after passing sentence of death on a convict, the judge after the sentence passed by him has been confirmed, issues a warrant in the prescribed form and the Superintendent of Prisons who has had no advantage of reading the judgment has no choice but to execute the sentence in the manner laid down in the form, namely hang the convict by the neck till he is dead, and there can be no objection taken by the Superintendent that the warrant is not consistent with the judgment. Thus, the omission in practice makes very little difference to the carrying out of the order of execution”.

Having held as quoted above, the Supreme Court concluded that the omission by the trial judge to pronounce the manner in which the sentence of death was to be carried out was a mere accidental slip or clerical error which is within the competence of the trial judge himself to correct. The Supreme Court accordingly, dismissed the appeal and directed that the matter be brought to the attention of the trial Judge (Hague A.J.) “to add to his judgment of 14th June, 1968, in this matter the words ‘The accused shall be hanged by the neck till he is dead’ “. The case was therefore, referred to the trial judge to incorporate in his judgment the statutory direction contained in section 273 of the CPC.

To be concluded