Rev. King v. State: Death Penalty under renewed searchlight

Embattled Emeka Ezeugo, aka Rev. King

By STEPHEN UBIMAGO

If ever the Supreme Court reaches a decision to uphold the judgment of the Lagos Court of Appeal, which on February 1 had affirmed the death sentence passed by a trial court on Chukwuemeka Ezeugo, a.k.a. Rev. King, of the Christian Praying Assembly, he then will be one of the latest cases of convicted felons in the country whom the hangman’s noose will be dispatching to the great beyond as punishment for his offence under s. 319 of the Criminal Code that prescribes death penalty.

On January 11, 2007, Justice Joseph Oyewole, then of the Criminal Division of the Lagos High Court, Ikeja, but currently chief judge of Osun State, had sentenced King to death by hanging on six count charges of the murder of one Ann Uzoh and the attempted murder of five other devotees of his church. The judgement was upheld by the Court of Appeal sitting in Lagos on February 1.

However, once the appellate court affirmed the trial court’s verdict, Barrister Olalekan Ojo, counsel to Ezeugo, did not mince words in impugning the grounds of the affirmation of the judgment, against which he promptly indicated the determination of the defence to appeal at the Supreme Court; thereby taking advantage of the residue legal corridor left to save the life of his infamous client.

Ojo filed five grounds of notice of appeal.

In the said grounds of appeal, Ojo said the appellate court erred in law in refusing the convict’s application to call additional witnesses to tender reports of forensic experts so as to show that there is no way the man, allegedly Rev. King, who ignited the matches that burnt the deceased to death, couldn’t have been torched since she was said to have been soaked in petrol, a highly inflammable matter.

Ojo maintained that the appellate court erred yet again, considering that the reason it gave in its judgment for refusing to grant the application for leave to call more witnesses was merely because the report of the forensic experts had not earlier been tendered in evidence at the trial court.

On another ground, according to him, it was wrong not to have treated the statement of the deceased as “Dying Declaration,” which is admissible in evidence under the Evidence Act as an exception to the “Hearsay Rule” to the effect that Rev. King neither bathed her with petrol nor did he ignite the matches that ended up consuming the said Ann in flames. On the contrary, the deceased maintained, the burns she sustained were from a generator explosion.

But watchers haven’t ceased to express doubts as to whether the move by the defence to find absolution for King at the apex court will achieve its objective, saying it seems an effort in futility given the antecedents of Justice Oyewole for thoroughness.

According to Ibrahim Lawal, senior special assistant to Governor Rauf Aregbesola of Osun State on Legal and Judicial Reform, “Most of Oyewole’s judgments have been affirmed on appeal and even the few ones that had been sent back for retrial, were eventually decided the same way he had initially adjudged them.”

If Lawal’s observation is anything to go by, then the Supreme Court’s affirmation of the judgment passed at the trial, and upheld at the appellate, court could inevitably be a fait accompli.

Rev. King’s fate may have been decided. He may indeed be destined to die by hanging!

But the voices pushing for the abolition of the death penalty as a punitive measure of criminal justice are growing and winning traction the world over.

Among members of the human rights community, especially, it is maintained that capital punishment is a violation of fundamental rights.

“The death penalty is the ultimate denial of human rights. It is the premeditated and cold-blooded killing of a human being by the state. This cruel, inhuman and degrading punishment is done in the name of justice,” says Amnesty International, a global NGO with over 3 million membership focused on human rights.

“It violates the right to life as proclaimed in the Universal Declaration of Human Rights. AI opposes the death penalty in all cases without exception regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner.”

The United Nations (UN) has also voiced its disavowal of the death penalty. It has continued to call on States that maintain the death penalty to establish a moratorium on the use of capital punishment with a view to abolition, and in the meantime, to restrict the number of offences which it punishes and to respect the rights of those on death row. It has also called on States that have abolished the death penalty not to reintroduce it.

Interestingly, October 10, 2010 was declared the World Day against the Death Penalty. The World Coalition to Abolish the Death Penalty, a coalition of 108 NGOs from around the world, had set that date as the 8th World Day against the Death Penalty.

According to the abolition advocates, the justice system can never be mistake-free; hence it is inevitable that an error will be made in a capital case and an innocent person will unduly end up being executed.

Speaking in this connection, Innocence Project, a US-based litigation and public policy organisation dedicated to exonerating wrongfully convicted individuals through DNA evidence, indicated that the innocence of at least 17 death-row inmates has been demonstrated since 1993.

According to them, one such exoneree, who had served 11 years in prison, came within five days of execution; while another exoneree, who had spent 17 years in prison, came within nine days of execution before receiving a stay.

Still in the US, application of the death penalty show a pattern of bias for race and class.

Blacks and Latinos are said to make up more than 55 percent of the current death row population, despite comprising only about 25 percent of the U.S. population. Besides, the vast majority of people on death row are poor.

The abolition advocates have also argued that the death penalty is not an effective deterrent, insisting that life imprisonment will protect the public from repeat offenders.

In sum, capital punishment as it is applied in the United States is racist, arbitrary, and fallible. It doesn't work to deter crime either, the abolition advocates maintain.

But there is a more fundamental contention, which has been canvassed to reinforce the position of supporters of abolition.

In the aftermath of World War II, an "international bill of rights" was drafted under the UN charter called the Universal Declaration of Human Rights (UDHR).

According to the abolition advocates, since Article 3 of the UDHR – a provision that is replicated in other multilateral instruments like the African Charter on Human and Peoples Rights (ACHPR), which has been domesticated into the country’s body of laws – provides that “Everyone has the right to life, liberty and security of person,” the death penalty may no longer enure without offending that provision.

For one, it makes right to life the most fundamental human right, since it constitutes the basis of access to other rights, which may be enjoyed by man.

By implication, it extinguishes the state’s right to take the life of any of its citizen for whatever reason, the “abolitionists” maintain, stressing that capital punishment also retain the additional disadvantage of being permanent or irrevocable.

Opponents of the abolition school of thought, however, have hit back to say that since members of the school have deliberately shut their eyes from the broader picture, they inevitably have sunk into the fatal error of claiming that the right to life is absolute.

They also maintain that advocates of abolition have arrogantly refused to accept that no right meant to be enjoyed by man is absolute; and that any law worth obliging compliance would allow for a derogation clause to that effect.

Thus s. 33 (1) of the 1999 Constitution, they say, rightly provides that, “Every person has a right to life, and no one shall be deprived intentionally of his life, save in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty in Nigeria.”

In this connection, an Abuja-based lawyer Garba Irunoje, has accused the “abolitionists” of being fixated on the corrective object of the penal justice system, forgetting that it also makes allowance for retributive measure in terms of the “Just Desert Theory.”

According to the “Just Desert Doctrine,” guilty people deserve to be punished in proportion to the severity of their crime.

Capturing this argument succinctly, Jesus Christ, founder of the Christian faith says, “He who lives by the sword, shall die by the sword,” to the extent that no pontificating on justice can be more meaningful to a religious mind or an ordinary reasonable man than that he who wilfully takes another’s life, must have his own life denied him as well.

Irunoje puts it thus: “Retribution, and the penal measure aimed at approximating it by a sentencing court, seems to me as more akin to justice than the corrective object of punishment, which forms the heart of the arguments of advocates of abolition. And our courts are regarded as temples of justice, not merely vehicles for applying correction.”

He maintains further that “It is ironic that societies with laws that allow private citizens to own guns for self-defence, the basis of which thousands of its citizens are killed on a daily basis, are the ones seeking to deny the state the right to apply the death penalty to the deserving.”

Besides, the argument goes that by executing convicted murderers, capital punishment could serve as deterrence to potential murderers from wantonly killing people. And that deterrence is most effective when the punishment happens soon after the crime. A child, for example, learns not to put his finger in the fire, because the consequence is instant pain.

For the level of cultural refinement attained by most members of the Nigerian society, which of course is rather low, it has been said that the death penalty is warrantable for practical reasons.

For example, killing with abandon is so prevalent in many parts of the country that it appears, for many, human life in Nigeria retains no inherent value higher than that of cattle.

Hence the death penalty is a fitting answer for the murderous tendency that abounds in the country. Indeed nothing could be more offensive than the grant of a mere prison term, be it life or otherwise, to a cold-blooded serial killer, a measure the likes of Barrister Ironoje deems as rewarding criminality.

According to Fola Jesse Ojeme, a lawyer and coordinator of Justice Warehouse, an advocacy group, “A clear example of how little regard is paid to human life in Nigeria is the latest clamour, especially from the North, that amnesty (absolute pardon) should be granted Boko Haram, the deadly Islamist terror group.

“It speaks volumes that rather than frontally visit the full weight of an efficient justice system on the Islamist sect, whose terror acts, which falls within the statutory definition of murder and high treason for ostensibly levying war against the state, which has led to the death of thousands of Nigerians, the government of President Goodluck Jonathan appears to be yielding to pressure to grant the said amnesty.”

There is however a sense of cautionary note sounded in the argument by the “abolitionists” that the death penalty is irrevocable.

However, instead of deeming this as enough reason to abolish capital punishment, its supporters contend that it only makes sense to limit its application to cases of murder pursuant to s. 319 and high treason pursuant to s. 37 and 38 of the Criminal Code.

Besides, the inherent safeguards that protect the defendant from judicial arbitrariness in the adversarial system being practiced in Nigeria that says an accused person is prima facie innocent until proven guilty by a competence court after the prosecution has painstakingly discharged the burden of proving his offence beyond reasonable doubt, must be applied exhaustively.

Moreover, the fair hearing principles of nemo judex in causa sua and audi alterem partem as codified in s. 36 of the 1999 Constitution also finds extensive application in Nigerian courts, the object being to protect the defendant from being badly tried and unduly convicted.

This is complemented by the fact that the Nigerian judicature is made up of a hierarchy of courts designed to guarantee that justice is done; for in case the defendant is dissatisfied with the ruling of a trial court, redress could be sought in a higher, appellate court.

Indeed this is the route currently being taken by Rev. King as a way of meticulously engaging the corridors of justice open to him in Nigeria.

Given these safeguards in the country’s penal justice system, supporters of the death penalty say the cautionary note as sounded in the abolitionists’ refrain that death penalty is irrevocable has in fact been adequately taken care of by the nation’s justice system.

Of course, the possibility that a person could suffer conviction for an offence he or she did not commit cannot be completely ruled out, since no human institution, least of all the criminal justice system of any nation, is perfect, as it is always a work in progress.

However, it will be unrealistic to say that since there are no absolute safeguards against the conviction of an innocent person, then the death penalty should be totally abolished.

It therefore goes without saying that such a contention may be tantamount to expecting the country’s criminal justice system to miraculously rise above the ken of human limitations and become a perfectly running machine.