Signing death warrant is governors’ duty — Agbaje

Human Rights lawyer, Fred Agbaje

Human Rights lawyer, Fred Agbaje, in this interview with ALLWELL OKPI, says it is a breach of constitution and an impeachable offence if governors refrain from signing convicts’ death warrant

President Goodluck Jonathan recently urged governors to sign convicts’ death warrants. Can governors, according to the law, choose not to sign?

I must say it is strange to me in the sense that Nigeria is full of a mixture of good and bad. How can somebody who knows the duties and the functionalities of the office of the governor of a state, contests for it, wins election, then turns around and says he’s not going to implement some of decisions of the court of law? It is an aberration of the rule of law and, in fact, it is an impeachable conduct. Impeachment conducts include any act that violates the constitution. If you swore to respect the rule of law, discharge your duties faithfully and in accordance with the constitution. When a court sentenced a criminal to death sentence, you cannot turn around to say, ‘it is against my religion to sign the death warrant.’ My question is, didn’t you know you had a religion or conscience when you contested the governorship? Don’t forget that the governors are the chief executive officers of their states. Their refusal to sign the death warrant amounts to opposing the constitution. It amounts to fraudulent manoeuvre of the electorate, who have given them their mandate to govern. You cannot at that moment realise you have a conscience and the convicts have constitutional right to life. What kind of right to life is that? Once a court of competent jurisdiction convicts a person to death, as far as I’m concerned, that conforms to the law. It’s a betrayal of the electorate and I believe an aggrieved electorate can go to court and demand a judicial release of mandamus to compel the governor to carry out his constitutional responsibility. Part of that constitutional responsibility is to reduce crime in the state; to encourage people to be law-abiding; to stem the culture of impunity; and to encourage the police to do their work better. If a governor says no to these, that means he is encouraging such and is not fit to be in office one more day. Can a soldier, who upon signing for the military, renege from war front? Or avoid corpses in war front? Or can a medical doctor avoid surgery and blood without being guilty of violating the Hippocratic oath?   Let me add that the governors, who are refraining from signing convicts’ death warrant, as required by law, are executive cowards and they want to portray the judiciary in bad light.

But there’s the argument that signing the warrant or even transmuting a death sentence to life imprisonment, and outright pardon all depend on the governor’s discretion.  

Those propounding such theories are equating executive powers to judicial power. No governor can tamper with the judgment of a court, except under the guise of prerogative of mercy. You make a fool of the courts when you fail to execute their decisions. You will be against the judiciary. Under the principle of rule of law and the doctrine of separation of power, once a court takes a decision, it becomes binding. If you are not satisfied, you appeal. But if the Supreme Court has ultimately decided that a convict must be condemned to death, the governor has no excuse, unless there is a prerogative of mercy. The governor has no right to unilaterally turn judicially-pronounced death sentence to life imprisonment. There is no executive discretion in a judicial or constitutional matter.

Are you saying the constitution does not permit a governor to pardon a convict sentenced to death?  

No. The governor can pardon through the committee for prerogative of mercy. If the committee of prerogative of mercy advises the governor to pardon a particular convict, who has been convicted for armed robbery, the governor can in that situation pardon the person.

Looking at the human rights considerations that have led some countries to abolish death sentence, do you think Nigeria should adopt that too?  

Those countries that are replacing death sentence with life imprisonment have laws to back such. For example, some states in the United States have abolished death sentence. In Britain, death sentence has been outlawed, what you have is life sentence. This can happen because there are laws in those countries.  But here, our National Assembly and state Houses of Assembly are busy guzzling taxpayers’ money. Have they passed any law to convert death sentence into life imprisonment? They have not. That is why the judge will tell you that his hands are tied because the law does not give them discretion. I’m in support of the advancement of human rights, particularly the preservation of life. But you must do it in accordance with the existing laws. Even the constitution that gives the right to life says that life can be taken under certain conditions, especially through a judicial process. Therefore, right to life is not absolute. So, my brothers in the human right community like me must be realistic. We must not say things that are impracticable. We must not say things that will allow some governors to abdicate their constitutional responsibility. We must not embark on actions that will make the judiciary look foolish, particularly, when a court has decided on a matter and the matter has gone on appeal. We must not ridicule the judiciary. Those governors want to buck-pass their constitutional ineptitude to the judiciary that has done its job.

Do you think Nigerian laws should be changed to abolish death sentence and replace it with life sentence?

It is high time Nigerian laws were changed. However, I’m saying it feebly, because of the human right instinct in me, that it should be changed so that we can have life sentence in place of death sentence. Until that law is in place, the existing law must take its course. However, don’t forget that the person that was killed in the course of armed robbery, or a victim of kidnapping, who is dead, deserves justice. We must not look at justice from the perspective of the accused person, who has terminated another person’s life unconstitutionally. Justice is a four-way thing. There must be justice to the accused, who is standing in the dock; justice to the victim, who is dead and buried as a result of wanton destruction of life by the accused; justice to the larger society, whose norms have been desecrated by the criminal act of the accused; and above all justice to the whole world. Those who are saying that the accused that has been convicted in a murder case should be pardoned should also consider the man in the grave that was killed. Does he not deserve justice? I don’t care if we go back to the Bible days, when the law was ‘an eye-for-an-eye.’ If you kill you must be ready for the consequence. That is the fundamental essence of criminal punishment. That is the jurisprudence of criminal law. In the realms of criminal law, especially comparative criminal jurisprudence, every person is deemed to understand the consequences of his actions. If you kill, you must understand that the law will come after you and you will go in for it. That is the only way there can be sanity in the society; that is the only way the culture of impunity can stop. Otherwise, it will continue.