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42 NIGERIA ‘WAITING FOR THE HANGMAN’ POLICE ARRESTS AND INVESTIGATION Anyone suspected of a capital offence may be arrested by the police without a warrant. 154 The police are obliged to inform any person arrested or detained of the grounds for the arrest in writing within 24 hours. All suspects have the right to remain silent until consultation with a lawyer. If a suspect is arrested for a capital offence the Investigating Police Officer (IPO) must refer the case to the State CID for further investigation before it is sent to the office of the Director of Public Prosecution (DPP) at the State Ministry of Justice for legal advice and subsequent arraignment. The DPP’s office will then advise the police whether or not to charge the suspect. If there is no case to answer, the DPP will send official notification of this decision to the police and the prison authorities, who may then release the suspect. COURT PROCEEDINGS AND JURISDICTION All cases under Penal and Criminal codes that carry the death penalty must be tried by a state High Court or by the Federal High Court. 155 Appeals from the High Court are made to the Court of Appeal. Under Shari’a law, capital offences are tried by the Lower Shari’a Courts, and appeals are to the Upper Shari’a Courts, followed by the Shari’a Court of Appeal. The Supreme Court of Nigeria is the highest court of appeal. After sentencing a prisoner to death, the judge must inform the state governor and send a report of the trial. An accused person may not be tried for a capital offence without legal representation. If an accused person cannot afford the services of a lawyer, the court assigns one. 156 The Legal Aid Council (LAC), funded by the Federal Government, should provide legal aid to those unable to afford a private lawyer. However, the LAC’s services are limited to specific crimes, including murder, manslaughter, assault, stealing, affray and rape. Armed robbery is not included, even though it carries the death sentence. In practice, the LAC is increasingly taking up these cases as well. The draft Legal Aid Act (Amendment) Bill, pending before the National Assembly since 2006 and reintroduced in 2008, would enable the LAC to review cases of prisoners awaiting trial and to inspect prisons, police cells and other detention centres. 157 Under section 118(1) of the Criminal Procedure Act, an accused charged with a capital offence should not be granted bail, unless a High Court judge decides otherwise. 158 PREROGATIVE OF MERCY After a convicted prisoner has exhausted the appeal process and the Supreme Court has confirmed the sentence, the case may be sent to the Advisory Council on the Prerogative of Mercy. This Council can recommend that the sentence should be commuted to imprisonment or that the offender should be pardoned or reprieved. 159 If there is no ground to commute the sentence, the state governor can sign the death warrant for execution. Amnesty International October 2008 Index: AFR 44/020/2008
NIGERIA ‘WAITING FOR THE HANGMAN’ 43 The President and state governors can exercise their right to the prerogative of mercy and release prisoners from death row as provided by the Nigerian Constitution. Under the Constitution, the President, after consultation with the Council of State, may grant a pardon or commute the sentence. State governors may also do so, after consultation with “such advisory council of the State on prerogative of mercy as may be established by law of the State.” 160 CHILDREN, WOMEN AND THE MENTALLY ILL Convicted prisoners who were under 17 at the time of the alleged crime may not be sentenced to death: “Where an offender who in the opinion of the court had not attained the age of seventeen years at the time the offence was committed is found guilty of a capital offence sentence of death shall not be pronounced or recorded but in lieu thereof the court shall order such person to be detained during the pleasure of the President and if so ordered he shall be detained in accordance with the provisions of Part 44 of this Act notwithstanding anything to the contrary in any written law.” 161 Under Shari’a law, juveniles can be sentenced to death. Juvenile offenders are defined under section 95 of the Kano State Shari’a law as offenders who have not yet attained the age of puberty. Section 237 of the Zamfara Shari’a Criminal Procedure Law 2000 states that “no sentence of hudud [Law of fixed punishments] or qisas [Law governing retribution for murder and bodily mutilation] shall be imposed on a person who is under the age of taklif [attaining the age of legal and religious responsibilities].” If a woman found guilty of a capital offence is pregnant, under 368 (2) of the Criminal Procedure Act, she should not be sentenced to death but to imprisonment for life. She can appeal up to the Supreme Court; if the court confirms she is pregnant, her sentence will be commuted to life imprisonment. 162 Section 300 (3) of the Criminal Procedure Code, applicable in the northern states, has a similar provision. Under this law, the governor can also order her release or imprisonment for a specific period. If a judge suspects that an accused is mentally ill, he can order a medical observation in a so-called asylum within prison. A medical officer’s certificate is required as evidence in court to prove mental illness. If the accused is found guilty, the court will report the case to the governor who “may order such person to be confined in a lunatic asylum, prison or other suitable place of safe custody during the pleasure of the Governor.” 163 EXECUTION Execution is by hanging the convict by the neck, by firing squad or by stoning (under Shari’a law). According to the Prison Act, every execution is attended by the sheriff or deputy sheriff, the superintendent, the medical officer and the chief warder of the prison. 164 Index: AFR 44/020/2008 Amnesty International October 2008
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