A death penalty can simply be defined as the punishment for capital offences as held in Ogwuche v. Federal Republic of Nigeria (2021) 6 NWLR (Pt. 1773) 540 SC. Under the Nigerian Criminal Law jurisprudence, the settled principle of law is that death penalty is constitutional in Nigeria as stated in Kalu v State (1998) 13 NWLR (Pt. 583) 531.
Having laid the foundation, today’s article seeks to answer the question of whether or not a state Governor, exercising the prerogative of Mercy, can reduce a death penalty to life imprisonment and the effect of such amelioration on the Courts.
These two related questions came up for determination in the case of Adekunle v. A.-G., Ogun State (2018) 9 NWLR (Pt. 1623) 1 SC. In that case, the appellant had earlier been charged with offence of murder, tried, convicted, and consequently sentenced to death at the Ogun State High Court. His appeal to the Court of Appeal was dismissed and the subsequent appeal to the Supreme Court was also dismissed, whereby the conviction and sentence, passed on the appellant by the trial High Court and affirmed by the court below was affirmed by this court on the 10th day of June 2006. The applicant was then awaiting execution of the judgment of the court which did not happen having spent six (6) years in detention.
Displeased that the situation, he applied to the High Court of Ogun State for the enforcement of his fundamental rights to freedom from torture, inhumane and degrading treatment as guaranteed by Section 34 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) and Articles 3,4,5,6, and 8 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, Cap. 10 Laws of the Federation of Nigeria, 1990. In the said application, the appellant had sought some of the following reliefs:
- a declaration that the punishment for murder is death and does not include the prolonged period in detention before the execution of the death sentence.
- a declaration that the prolonged detention of the applicant since he was convicted and sentenced to death on 13/10/2000 awaiting execution – a period of more than 6 years constitutes another form of punishment i.e. long period of imprisonment under trauma and anguish of imminent death, for the same offence apart from the punishment of death and therefore deserving judicial remedy for the earlier sentence of death.
- an order for the unconditional release of the applicant from prison or alternatively an order that the death sentence be converted to a term of imprisonment not exceeding 6 years including the period he was detained awaiting execution of his sentence.
Replying to the suit, the respondent – the Attorney General of the State – raised a preliminary objection and stated that the Governor of a state has the power to reduce an inmate’s punishment. He relied on Section 212 of the Constitution which enables the Governor to exercise this power. He further stated that the then Ogun State Governor, Otunba Gbenga Daniel, had exercised the prerogative of mercy and commuted the appellant’s death sentence to life imprisonment. Learned Attorney General also contended that the appellant reprehensibly failed to disclose the fact that the Governor has taken favourable action and commuted the appellant’s death sentence to life imprisonment and submitted that the whole appeal is now hypothetical, moot, and academic and should be dismissed.
Giving the judgment, the Supreme Court held that “After an accused person has been tried and sentenced to death and his appeal is ultimately dismissed by the Supreme Court the death penalty hangs on his head until the execution is carried out…. also Where the State exercises its power to commute the death sentence to life imprisonment, there is nothing the court can do“
Similarly, in Effiom v. State (1995) 1 NWLR (Pt. 373) 507, the Supreme Court per OGWUEGBU, J.S.C. (as he then was) at page 618, para. C: held that “… the Governor may exercise his powers of the prerogative of mercy by commuting the death sentence to that of life imprisonment under section 192 (now 212) of the Constitution.”
As a result, the effect was that the preliminary objection succeeded and the appeal was struck out became it had become academic. A suit is Academic where it is thereby theoretical, and of no practical utilitarian value to the plaintiff even if a judgment is given in his favour. Once a suit no longer has live issues for determination, such a suit is academic and a court should on no account spend judicial time or engage in Academic exercise. A.P.C. v. Enwerem (2022) 15 NWLR (Pt. 1853) 389
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