A2J and Avocats Sans Frontières File Suit Challenging Constitutionality of the Mandatory Death Penalty

Access to Justice (A2J) and Avocats Sans Frontières France (Lawyers Without Borders France), have filed a public interest lawsuit against the Attorney-General of the Federation, challenging the constitutionality of the mandatory death penalty.

In the Originating Summons, they are asking the High Court of the Federal Capital Territory, to determine whether Section 1(2) of Robbery and Firearms Act, is consistent with the 1999 Constitution.

The provision prescribes the mandatory death penalty, for armed robbery. A2J and Avocats Sans Frontières France, will contend that the provision, broadly speaking, violates due process safeguards in the Constitution.

Mandatory death penalty provisions, account for most death sentences in Nigeria.

In the locus classicus case of Unuoha Kalu v The State, the Supreme Court upheld the constitutionality of the death penalty in Nigeria, having found that the right to life is not absolute under the Nigerian Constitution.

In this lawsuit, however, the Plaintiffs want the court to clarify when a judicial decision to impose the death penalty may be considered unconstitutional, or when a law that requires the imposition of the penalty may be deemed unconstitutional. These questions were neither raised nor determined in the Kalu case.

If they succeed, the lawsuit would prompt a review of sentencing jurisprudence in Nigeria, and, as regards the use of the death penalty, annul mandatory death penalty provisions. The Plaintiffs hope that this case, will give courts a greater role in determining when the death penalty can be imposed for capital offences.

But, beyond that, however, the lawsuit could expand our jurisprudence, on the degree to which punishment can be allowed to invade constitutionally protected fundamental rights in Nigeria. This would be an important watershed in Nigeria, one that the Plaintiffs hope would make punishments more sensitive to distinctions in offence gravity, and moral blameworthiness.

Generally, there is need for sentencing reforms in Nigeria, and this lawsuit may be one step in that direction. Penalty has evolved, in a manner that fails to ensure relative proportionality within the same, or between different genres of crime.

Under the Robbery and Firearms Act, for example, an armed robber will be sentenced to death for holding a lethal weapon during or immediately after a heist, even if he did not “use” it. The Judge lacks discretion, to vary the sentence. Under Terrorism (Prevention) Act as amended, however, the maximum penalty that a Judge can impose for committing, facilitating, assisting or inciting terrorist acts, is a death sentence. The Judge has the discretion, to impose a lesser sentence, depending on the circumstances.

Although both laws deal with crimes that have similar potentially fatal consequences, their approaches to penal severity, are considerably different.

The difference becomes exacerbated, when it is considered that murdering an internationally protected person attracts a life sentence, under the Terrorism Act. Under the Criminal or Penal Code, murder attracts the death sentence.

There are other instances of inconsistencies, in how our criminal law approaches sentencing. Take for example, criminal misappropriation and theft. Both are crimes against property, but the privileged or whitecollared thief who misappropriates billions of public funds, gets a maximum two-year sentence under the Penal Code, while the petty thief gets a maximum five-year sentence, for stealing under the same Code.

These differences, engender wide inequalities in sentencing. Punishments are either too severe or too lenient, and do not always fit the crime. Nigeria needs to overhaul its sentencing system.

For Access to Justice and Avocats Sans Frontières France, the lawsuit is one frontier in addressing these inequalities. It represents an effort to promote “justice” in the sentencing system, so that sentences do not continue to reproduce and mirror the social and legal injustices that have led to the commission of many of the crimes, in the first place.A Human Rights Advocacy Group, Access to Justice(A2J), has joined numerous other Nigerians, to fault the statement by President Muhammadu Buhari, subordinating rule of law to national security.