By Richard Akinnola
In 1955, a young lawyer in company of a friend, strolled casually into a restaurant to have some soft drinks after the day’s hard job. They had hardly settled down when a police sergeant in mufti slouched in. He immediately recognized one of the gentlemen drinking Fanta and he stood at attention and gave him full force’s compliment.
The surprised lawyer wondered who he was. The man identified himself as a policeman who was one of those who investigated a murder case which this lawyer had unsuccessfully prosecuted earlier in the day, leading to the acquittal of the accused persons.
There had been a brutal murder of a woman along the old Benin/Ore Road, in the outskirts of Ijebu-Ode in Ogun State. It was an intricate case that had to be transferred to Ibadan, then Headquarters of the Criminal Investigation Department (CID) which had jurisdiction over Ijebu-Ode. The police investigating team prepared its report which implicated three men. A Preliminary Investigation (PI) was taken and the Magistrate committed the matter to the assizes for trial before Justice Stewart.
However, at the trial, the accused persons pleaded alibi in their defence, claiming they were out of town on the day of the murder. They secured the services of a very brilliant lawyer. Chief David Oguntoye, who made a mince meat of the prosecution’s case.
And after a no-case submission, the judge discharged and acquitted the accused persons. The prosecutor of the case was the man drinking Fanta in the restaurant, while one of the police investigators was the one that came in to salute the prosecutor, telling the prosecutor that he was happy over the outcome of the case earlier in the day.
When asked why by the lawyer, the policeman confessed that the accused persons had nothing to do with the murder, stating that the accused persons were known burglars and that the police suspected that on the day of the murder, they had gone about with their normal duties of burglary, far away from the the scene of the murder. But because they could not have told the police the true story of their whereabout, their alibi was punctured. But for their brilliant lawyer, they would have been sent to the gallows.
The prosecuting lawyer who was in the restaurant was Dr. Akinola Aguda. That singular event totally altered his views on capital punishment. “That case sent a shock through me for the simple reason that I might have become a part of machinery leading to the execution of three persons for an offence which they didn’t commit had they not been lucky to have the services of a brilliant lawyer. From that day onwards, I began to think that capital punishment might not be a good punishment after all, since once carried out, a reversal may become impossible.” Dr. Aguda told me in one of our usual chats.
Few years earlier in 1953, Dr. Aguda was in the court of Justice J.I.C. Taylor, which was the first time he would witness a death sentence passed by a judge. “I had gone to this court as a lawyer for a different case when I witnessed the scene. The convict, a woman was found guilty of killing his boy friend, a white man;
“As soon as Justice Taylor came to the conclusion of his judgment that the woman was guilty, he returned into his chambers. By the time he came back, he had put on a black cap, having removed his wig. In those days, when you wanted to pass a death sentence, the judge puts on a black cap, although I never used it during my time. It is usually a very moving scene and one could go into tears”, the renowned jurist told me.
The argument for and against death sentence has been as old as the offence itself. For the proponents of its retention in the statute books, they feel that whoever commits an offence as asinine as murder does not deserve to live.
But for those on the other side of the divide, death penalty does not serve as a deterrent factor and therefore counter-productive, cruel and inhuman.
In Nigeria, the two most prominent offences that carry death penalty as punishment, are murder and armed robbery. While in some other countries, gas chamber, electrocution, beheading and stoning are instruments of execution.
As a direct consequences of the social dislocation after the Nigerian civil war in 1970, incidents of armed robbery became pronounced, leading the promulgation of Robbery and Firearms Tribunal Decree by the then Head of State, General Yakubu Gowon. This decree prescribed death sentence for the offence of armed robbery after trial by the Robbery and Firearms Tribunal.
However, the snag in this law is the removal of the right of appeal after trial by the Tribunal. Section 8(2) of the Decree stated: “No right of Appeal to any court in Nigeria granted by any enactment or law as aforesaid shall apply in respect of the conviction of an offender or in respect of any sentence imposed by a Tribunal constituted under this Decree.” It is however different under a democratic dispensation where defendants are charged before the high court, with right of appeal to the Supreme Court.
It has often been argued that the infallibility of judges handing down these death sentences makes it imperative for its abolition. This had led to its abolition in 44 countries, while 16 other countries have it in their statute books without using it. (It’s possible the number has increased).
In Nigeria, the first public execution on Saturday, April 24, 1971 was trailed with controversy, as one of the executed robbers, a former Naval Officer, Sub-Lieutenant Williams Alders Oyazimo, proclaiming his innocence unto the point of death. Oyazimo was executed along with Babatunde Folorunsho and Joseph Ilobo at Lagos Bar Beach after being condemned to death by the Robbery and Firearms Tribunal for robbing one Alhaja Taibatu Opene of a record player and loud speaker.
If Oyazimo’s case was emotional, the case of Chief Murtala Alabi, was no less moving. On May 17, 1991, the whimpering and open display of emotion with tears freely cascading down the cheeks of Chief Alabi’s relations after a death sentence was handed down to him by the Tribunal, could melt even the stone hearted.
He slouched unsteadily out of the dock, staring impassibly at the ceiling with one eye, having lost the other one in detention. He had been condemned to death despite the fact that the trial did not conclude before his counsel withdrew, alleging bias on the part of the Tribunal. Despite this, the Tribunal proceeded with the case without a defence counsel and sentenced Chief Alabi to death.
No case aptly illustrates the bias of some judges or tribunals in robbery cases as one related by eminent lawyer, Chief Afe Babalola (SAN) in one of his reminiscences. Chief Babalola and one of his colleagues, including Chief Richard Akinjide, in the 70s were defending some robbery accused persons before a judge who seemed to have made up his mind to convict the accused persons.
Said Babalola: “Very often, the judge refused to write answers that we considered favourable to our clients. And when we insisted that he should write them down, his reply was: ‘You can come here and write it.’ He would drop his pen and fold his arms. The matter was so serious that at a stage, Chief Akinjide had to say: ‘Each of us here is qualified to be where you are. The only difference is that we have not taken the Oath of Office. It is not because we are not qualified to take the Oath of Office but we prefer to be where we are.’
Babalola continued: “Perhaps the most important area of the trial which I want to highlight is how the judge dealt with the principal prosecution witness and his counsel. The prosecution was to rely on him as the principal witness. To the surprise of police, the witness denied having anything to do with the accused persons when he went into the witness box. The prosecution was disappointed. His testimony was different from the statement allegedly made to the police.
“The prosecution applied to the court to declare him a hostile witness. The trial judge agreed with the prosecution, adjourned further hearing and ordered that the Witness be charged and tried before the armed robbery tribunal immediately. And the trial judge was also the chairman of the Armed Robbery Tribunal.
“A young lawyer appeared for this witness-turned-accused before the Armed Robbery Tribunal, presided over by the judge. When the case was called, the young lawyer told the judge that in view of the position already taken by the judge about the credibility ot the accused person the previous day, he would suggest that the judge should not participate in the trial.
“In his reaction, the judge ordered the young lawyer to take off his wig and gown and go into the dock. He charged him with contempt, found him guilty and sentenced him to a term of imprisonment. The lawyer went from court to Kwara state Prisons cell. The judge nevertheless tried the accused and found him guilty. The witness turned accused was shot the following day”.
The gory spectacle of public executions took a new turn on May 24, 1994 with the public execution in Kano, of the first female robber to be publicly executed in Nigeria. Madam Elizabeth Oleru was executed along with his son, Samuel Akpata and two other armed robbers at the Kano Race Course. They were all condemned to death by the state’s Robbery and Firearms Tribunal headed by Justice Umar.
The infallibility of a judge’s verdict has often been the pivot of argument against death penalty. There have been instances
where some accused persons were condemned to death but won their appeal at the appellate courts. If they had been tried by the Tribunal where there was no right of appeal, they would have been executed.
There was the chilling case of Messrs Clement Onyewuenyi and James Ibeawuchi. They were both arrested on July 8, 1977 for alleged armed robbery. First, they appeared before a Robbery and Firearms Tribunal but when the civilian government took over in 1979, their case was transferred to the High Court.
Justice G.Ojiako in June 1983 sent them to the yawning chasm of death. But because they were convicted at the High Court, they quickly lodged an appeal at the Court of Appeal which on December 7, 1990, quashed their death sentences. If they had been convicted by the tribunal, they would have been executed.
The case of the “Birmingham 6” who were freed after 16 years imprisonment also comes in handy. They had been found guilty by a British court and sentenced to life imprisonment for allegedly bombing two Birmingham pubs in 1971, which resulted in the death of 21 people.
In 1991, they were found to be innocent and let off the hook. They were lucky because Britain had abolished death penalty in 1965. Perhaps, they could have been executed before their innocence was established.
To compound all these, is the long period in which the convicts await for the hangman. This has led to the novel case of Peter Nemi who was on death row for 10 years but was asking the court for a reprieve, stating that he had been subjected to inhuman and degrading treatment, contrary to the Nigeria’s constitution.
Mr. Nemi has won the first of his legal battles at the court of Appeal, leaving the Federal High Court to make the final pronouncement on the substantive case.
Dr. Akinola Aguda, writing in a paper titled: “Law as a means of social hygiene,” posited: “Revelry on the taking of human life or whatever offence, is nothing but a sign of moral bankruptcy and decadence on the part of the revelers. The punishment of death is pernicious to society from the examples of barbarity it affords.”
This is in consonance with the views of the widow of Martin Luther King Jnr., the Black Civil Right activist. While relations of some victims of murder seek for the punitive pound of flesh, some turn the other cheek. Mrs. Coretta Scott said after her husband was assassinated in 1968: “As one whose husband and mother-in-law have both died the victims of murder and assassination, I stand unequivocably opposed to the death penalty. An evil deed is not redeemed by an evil deed of retaliation.”
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