Gov. Adams Oshiomhole
Chino Obiagwu who led the legal team of the Edo 4, argues that their execution last week by hanging is contrary to the current state of the law in Nigeria
The execution of the four prisoners in Benin City last Monday was not only cruel and gruesome, but also unlawful. It smacked of abuse of power, arbitrariness and executive recklessness.
The late Chima Ejiofor, Daniel Nsofor, Osarenmwinda Aiguokhan and Richard Igagu were executed while their two appeals were pending at the Court of Appeal and a petition at the African Commission on Human and People’s Rights. The actions of Governor Adam Oshomhole and his Attorney-General hinted at total breach of their oaths of office to uphold the law. Similarly, the rash conduct of the Comptroller of Prisons in carrying out the executions despite pending appeals in court was clearly illegal and ill-motivated in such magnitude as to attract possible criminal culpability.
The Edo State Attorney-General and Commission for Justice tried to mislead the world by claiming in the media that the executed prisoners had exhausted their rights of appeal. His simplistic excuses did not distinguish between the prisoners’ appeals against their conviction and sentence and their appeal against their case filed to stop their executions, of which judgment was delivered in the morning of the day they were killed.
The hurriedness of the execution suggested a highhanded and dodgy premeditation of the outcome of the judgement. The gallows were cleaned the previous night and the Oko prison yard was by dawn surrounded by a large contingent of armed security men. The hasty murderous plot was in the attempt to beat any possible notice of appeal that could be filed by the prisoners’ lawyers against the judgment. I was leading the prisoners’ legal team. We had anticipated speedy execution of our clients if we lost the case. As envisaged, the Oko prison authorities wanted to execute the prisoners before we could file an appeal. But we beat them to it, or we thought we did. We had prepared, the previous day, the notices of appeal and motion for stay of execution in anticipation of a possible unfavourable judgment, considering the body language of the court.
Immediately the judgment was concluded barely before noon, we were at the Registry filing the notice of appeal. Before the news of the judgement reached the Ministry of Justice and the prison that the case was dismissed, we had filed the appeal and the motion on notice for stay of execution of the judgement pending determination of the appeal. Copies were immediately served on the Edo state Attorney-General. Our team was at the prison premises to serve the Assistant Comptroller of prison but was denied access. The prison’s Legal Officer and all officials contacted refused to accept service of the processes. We then started calling all possible contacts in the human rights community that could reach Governor Oshomhole or the Comptroller of Prisons to inform them that an appeal had been filed and served on the Attorney-General, as well as a motion for stay of the execution. Meanwhile, information from the prison yard confirmed that the executioner had arrived and the wardens were already cleaning and oiling the gallows. We intensified our efforts to draw attention of those responsible to the appeal court processes.
As news from the prison yard of imminent execution remained strong, we reached out to some of our diplomatic contacts with passionate requests to reach out to the presidency or minister of interior. Our friends in the prison service refused to answer calls.
It was clear that we were losing the battle. Before 4 pm, barely three hours after the judgment, the five prisoners were picked up from their cells, their hands bound behind, an indication of the long gallant stumble to the gallows. Soon, a priest and a doctor whose callings were to save lives rather than take them, emerged from the shadows of the gallows. Other death row inmates froze in fearful distress, not knowing who else was on the death list. None had anticipated that the execution warrants of Chima, Thankgod and Richard were in the bloodbath pack.
It was only the warrants of Daniel and Osarenwinda that were known to have been signed by Governor Oshiomhole in October last year. By 6 pm, it was all over. Nigeria’s nearly decade-long moratorium had been shattered. A few hours later, the Edo AG admitted to Amnesty International and to the media that he was served with the appeal papers before the killing but it was not his business to stop the executions but the prison’s.
It was clear that we were losing the battle. Before 4 pm, barely three hours after the judgment, the five prisoners were picked up from their cells, their hands bound behind, an indication of the long gallant stumble to the gallows. Soon, a priest and a doctor whose callings were to save lives rather than take them, emerged from the shadows of the gallows. Other death row inmates froze in fearful distress, not knowing who else was on the death list. None had anticipated that the execution warrants of Chima, Thankgod and Richard were in the bloodbath pack.
It was only the warrants of Daniel and Osarenwinda that were known to have been signed by Governor Oshiomhole in October last year. By 6 pm, it was all over. Nigeria’s nearly decade-long moratorium had been shattered. A few hours later, the Edo AG admitted to Amnesty International and to the media that he was served with the appeal papers before the killing but it was not his business to stop the executions but the prison’s.
The 5th prisoner prepared for execution, Thankgod Eboh, was not killed because he was sentenced to firing squad by a tribunal without the right of appeal. He had earlier been bound and taken to the gallows along with the executed four and he watched the entire drama of death. He was returned to his cell drenched in blood and sweat. It was not clear if actually he was returned because he was sentenced to firing squad or because the gallows technically failed after the 4th execution as was initially strongly suggested by unconfirmed Information from the prison yard. Oko prison gallows had not been used or serviced in three decades. Thankgod was convicted by the Robbery and Firearms Tribunal in Kaduna for an offence committed in Kaduna state. Edo state governor had no business signing his warrant even if he is a native of Edo state or serving a jail term in Edo state. The governor appeared to have crossed the threshold. Again, AG Edo state claimed in the media that some of the execution warrants were signed by Oshiemhole’s predecessors, but he did not also say that governance is continuous.
There are three circumstances in the killing of the Edo Four that impugned the legality of the entire execution. The first is the point mentioned earlier of their execution while their appeals were pending. There are two appeals pending at the Court of Appeal and one petition pending at the African Commission on Human and People’s Rights seeking orders to stop their executions. None of the cases had been heard and determined.
The first appeal arose from a case filed in May 2011 by 815 condemned prisoners against all the state governors when the governors announced after a National Council of State meeting in Abuja that they would resume signing execution warrants. LEDAP filed the case at the Federal High Court Lagos (GODWIN PIUS & 814 OTHERS v GOVERNOR OF ABIA STATE & 37 OTHERS). Orders sought in the suit included to halt any signed execution warrants and commutation of their death sentences to life imprisonment or term of years because going ahead to execute the prisoners after long custody on death row under agony of suspense of imminent execution was cruel and inhumane. Also, the case canvassed that mandatory death sentence provisions of the penal laws under which the prisoners were sentenced are arbitrary and usurped the inherent judicial sentencing powers of the courts, among other reasons. The suit was defended by some state governors and by the Comptroller of prison who was the 38th Defendant. In April 2012, the Federal High Court dismissed the suit, whereupon the prisoners filed an appeal at the Court of Appeal Lagos. No date has been fixed for hearing of the appeal. All the parties have been served with the notice of the appeal.
The second case pending at the Court of appeal Benin City arose from the judgment of the Federal High Court delivered on the day the prisoners were executed. In October 2012, Governor Oshiomhole drew the worlds’ attention to six condemned prisoners from Edo state. It was initially rumoured that he signed the warrants of all six, but it later turned out that he pardoned or commuted the sentence of three but signed the execution warrants of the other three. There were no declared criteria for this arbitrary exercise of power. The prisoners sued the Governor and the Comptroller of Prison at the Federal High Court Benin City for order setting aside the execution warrants, stopping their execution and commuting their death sentences to terms of imprisonment. In the suit, the prisoners contended that to execute them after over 16 years of trauma and suspense of imminent death would amount to cruel, inhuman and degrading treatment prohibited by Section 34 of the Constitution. Both defendants in the suit (Edo State Governor and Comptroller of Prisons) vigorously defended the case. In December 2012, the court invited the Nigerian Bar Association, Mr. Femi Falana SAN and the Civil Liberties Organisation to each file amicus curia to assist the court in reaching a decision. Elaborate briefs and oral arguments were canvased by all sides and the court’s friends. Judgement was deferred three times. Each time judgement was coming up, the prison premises would be surrounded by a large contingent of armed security officials and the gallows would be washed. From that moment, all death row prisoners across Nigeria began to tremble in agony of imminent death. Finally on June 24, judgment was delivered dismissing the suit and immediately the notice of appeal and motion for stay of execution were filed and served on the AG Edo State. Yet, the execution went on.
The third pending case is at the African Commission on Human and People’s Rights (Communication No. 452/13 LEDAP & ORS v NIGERIA). In this petition, all the prisoners on death row in Nigeria in April 2013 through LEDAP filed a petition to the Commission contending that mandatory death sentence provisions of the law under which they were convicted were contrary to Nigeria’s obligations under the African Charter on Human and People’s Rights. The Commission has admitted the petition and communicated to the parties. One of the interim reliefs sought was for suspension of any execution pending the determination of the petition.
Finally, the execution was in clear defiance of a subsisting judgement of a court of law prohibiting cruel use of hanging of long death row inmates. In the case of AJULU v ATTORNEY GENERAL OF LAGOS STATE, the Lagos High Court late last year in a case argued by Mr. Norrison Quaker SAN of the Legal Resources Consortium (LRC) held that mandatory death sentence provision of the Criminal Code and Robbery and Firearm (Special Provisions) Act, and the mode of execution by hanging were inhuman and degrading and therefore unconstitutional. The state did not appeal against this salutary decision and therefore it is good law of the land. The execution of the Edo Four by hanging was contrary to the current state of the law in Nigeria.
The perilous events of the Edo Four recapped what happened three decades ago in NASIRU BELLO v AG OF OYO STATE, where the Supreme Court reproached the military ruler of Oyo state for killing Mr. Bello while his appeal was pending in court. Mr. Oshiomhole was then a young aspiring labour leader. He joined other ‘progressives’ in condemning the execution. Today, his Excellency executed four men while their two appeals at the court of appeal and one African Commission petition were pending for determination. Under Nigerian laws, an appeal and application for stay of execution should restrain further action until the appeal is determined. By executing the prisoners, government has demonstrated gross disregard to the rule of law and respect for the judicial process. We have filed a suit at the Federal High Court Abuja for the court to determine the pertinent legal issues concerning the carrying out of the executions while the appeals of the prisoners were pending in court as well as decision on any breach of the legal and professional responsibilities of officials involved.
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