There are indications that the recent directive by the Federal Government to state governors to take action on the 2,359 death row inmates may not lead to their executions.
The Attorney General of the Federation (AGF), Abubakar Malami (SAN), had at the National Economic Council (NEC) meeting presided by Vice President Yemi Osinbajo on July 19, asked the 36 state governors to act in line with Section 212 of the 1999 Constitution on the number of inmates sentenced to death as a means of decongesting prisons, which have about 73,631 inmates nationwide.
The Solicitor General of the Federation and Permanent Secretary in the Ministry of Justice, Dayo Apata, said the advice by the AGF centred on a review of the situation of the death row inmates using available legal options such as prerogative of mercy or remitting the sentences and not necessarily executing them.
He said during the nationwide tour as part of the prison decongestion directive of the president, the AGF found that some governors were very reluctant to act on the death row prison inmates either due to religious, social or other reasons, while others were taken to states other than where they were sentenced.
He said this category of inmates were constituting security risk at prisons by committing crimes right in the prisons.
"Since the governors were not forthcoming for reasons best known to them, the AGF now presented a memo before the National Economic Council that they should review and also suggested other avenues, since the people have been in detention for many years without anything being done about them," he said.
"He only made suggestions about maybe those who have been transferred to other states, that maybe they should bring them back so that the governors can take absolute control of the powers conferred by the law or maybe they can review them by way of prerogative of mercy, remitting the death sentence, and not going ahead to execute them," he said.
Section 33 (1) of the 1999 Constitution provides for the death sentence. Also, offences of murder, treason, treachery, and armed robbery are punishable with death. The applicable sections are Section 221 of the Penal Code and Section 319 of the Criminal Code.
However, state governors under Section 212 of the 1999 Constitution have the prerogative of mercy under the advice of the State Advisory Council to review or commute the death sentence to other forms of punishment.
Meanwhile, several human rights organisations had criticised the advice to the state governors on the death row inmates.
The Executive Director of Citizens United for the Rehabilitation of Errants (CURE), Sylvester Uhaa, said it was worrisome that the country was planning the executions as a way of reducing the prison population in the country, noting that they constitute only two percent of the prison population.
Also speaking, the director of Avocats Sans Frontiere France (ASFF) otherwise known as Lawyers Without Borders, Angela Uwandu, advised the Federal Government to adopt the existing international moratorium on death sentence as a way of showing that it has "respect for the sanctity of human lives."
The Executive Director of Prisoners Rehabilitation and Welfare Action (PRAWA), Dr Uju Agomoh, suggested the use of other forms of punishment and the adoption of the pre-trial reforms in the Act on Criminal Justice Administration, which provides for non-custodial measures like community service, probation and parole as means of decongesting prisons.
"This cannot be the way to decongest our prisons. The high proportion of persons who are in prison is actually attributable to pre-trail detainees. If anybody in Nigeria wants to decongest the prison, the first place to look at is the number of persons in pre-trial detention as well as reducing the duration spent in pre-trial detention, so we need to encourage speedy trial," Agomoh said.
The senior special assistant to the Executive Secretary of National Human Rights Commission (NHRC), Lambert Opara, said although Section 33(1) of the Constitution provides for the death sentence, there is need for "constitutional amendment to remove the death penalty in our statute books."
However, the Executive Director of Human Rights Writers Association of Nigeria (HURIWA), Emmanuel Onwubiko, said the death penalty remains part of Nigerian laws and advocated the amendment of the law especially, to include death penalty for terrorism-related offences involving death of persons.
"The constitution recognises capital punishment and since we operate on the basis of the constitution and the person sentenced has the opportunity to appeal the judgment to the Supreme Court, I don't see anything wrong with carrying out the executions," he said.