ACJA, 2015, Death Sentence and Lethal Injection.

It is no doubt that the Administration of Criminal Justice Act, 2015 boasts of certain innovations and this blog post deals with one of those innovations. Other innovations will be treated in due course in subsequent blog posts. Today, I will be discussing the provisions of Section 402 of the ACJA which deals with death sentence and lethal injection.

Persons who have been found guilty of capital offences are usually sentenced to death. It is settled under Nigerian law that the consequence of a finding of guilt of a defendant by a competent court of law on capital offences attract death sentence.[1] The mandatory nature of the sentence and the way it is being done has propped up a number of issues in the past, including the proper way a court is to pronounce how the judgment is to be carried out.[2] This position has been known to be by way of hanging by the neck according to provisions of Sections 367 (2) of the CPA 273 of the CPC.

The coming of the ACJA, 2015 has however added a new twist to this settled position. Section 402 of the Act provides as follows:

"402 (1) Punishment of death shall be pronounced by the Court in the following form:

"the sentence of the Court upon you is that you be hanged by the neck until you are dead or by lethal injection"

The complexities which have been incorporated under the provisions of Section 402 (1) are in two folds. First, it introduced for the first time, the use of lethal injection into Nigerian Criminal Jurisprudence. Second, it has in a way locked horns with an earlier decision of the Supreme Court in GANO V. THE STATE (1968) 1 ALL NLR 353; (1968) NSCC 285 over the duty of the court to state the exact manner in which a convict should be executed. Lethal injection involves administration of a combination of poisonous substances into a person, usually by way of drugs for the  purpose of causing immediate death. The main application for this procedure is capital punishment, but the term may also be applied in a broad sense to euthanasia and suicide. The lethal injection has stages. it first puts the convict to sleep and then attacks the heart to stop breathing.

The main argument for lethal injection even in jurisdictions where it is being popularly used is that the use of lethal injection obviate the need for pain at all. It was a product of abortionists movements against  death by hanging, electrocution, gas chamber or firing squads which were rather felt and thought to be more painful for the convict. On the other hand, a number of critics have also maintained that the effect of pain in carrying out the death penalty is also part of the justice to the society, thus, the use of pills or drugs as lethal injection seem to be more of 'mercy killing' than the horror or pain that a convict ought to be subjected to.

The discourse of the pros and cons of the lethal injection can be left for another discussion entirely as I will now focus on the legal effects. First, it has been found that even in the United States of America where some states carry out lethal injections or use of drugs to carry out death sentence, certain biological or medical reasons may prevent the use. This could be as a result of a hole in the brain of the convict, which would cause much pain if the drugs are administered or where the drugs that are meant to be used do not comply with the required standards,[3] or even that a wrong drug has been used to replace the prescribed drug when it could not be found[4]. 

With all these complexities that could arise however, the Supreme Court of the United States of America has held in the case of Glossip v. Gloss[5] that death by lethal injection was constitutional and that since the plaintiffs (who were death row convicts) could not prove the use of an alternative drug in the administration of the death penalty by lethal injection, their complaint would not suffice. Thus, giving more validity to the use of lethal injection, even where alternative drugs are being used.

It is necessary to point out here that before the use of lethal injection can be properly managed in Nigeria, it is advisable to have a law regulating the procedure. This is mainly because since the death penalty is a constitutional matter, the procedure too, ought to be constitutional. For instance, a Death Penalty Act which would prescribed the drugs to be used and how it should be administered on the convicts should be enacted by the National Assembly for that purpose. This would enable the convicts to be clearly informed about the execution process.

The other issue which Section 401 has inadvertently fallen into is to lock itself against a decision of the Supreme Court in Gano v. The State (1968) 1 ALL NLR 353; (1968) NSCC 285. By providing for the alternative of death by hanging and lethal injection at the same time, and if a court should pronounce the death sentence as it is in the law, the provision will place the convict on a doubt as to whether he would be hanged to death or whether drugs will be administered on him. It should be noted that as at the time the complaint in Gano's case reached the Supreme Court, the only available means of death sentence was death by hanging. Hypothetically, if the same facts and circumstances in Gano's case should resurface under the present ACJA, 2015, the decision will be different. Credence is given to the holding of Ademola CJN when he held thus:

"We are in agreement with counsel that it is the duty of the judge, under the law, to pronounce the manner in which the sentence was to be carried out, and failure to do so might raise an apprehension that the execution could be carried out by any other means as for example by poisoning, drowning or any other means; but as it is clear that the only mode of execution known to our law is by hanging by the neck till the convict is dead, we are unable to accept that any other mode of execution was contemplated by the judge"

With the introduction of lethal injection now therefore, there would be need for clarity in passing death sentence.

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[1] Hambali Y.D.U. 'Practice and Procedure of Criminal Litigation in Nigeria' (Feat print and Publish LImited: 2012: Nigeria.) p. 660

[2] For instance, See GANO V. THE STATE (1968) 1 ALL NLR 353; (1968) NSCC 285 where the Supreme Court held that it is the duty of a judge  under the law to pronounce the manner in which the sentence is to be carried out.

[3] Conor T. "Judge Knock Outs Lethal-Injection Plans" available at http://www.nbcnews.com/storyline/lethal-injection/judge-kos-montanas-lethal-injection-plans-n439631 accessed on 16^th November, 2015.

[4] Connor T., "All Oklahoma Executions on Hold After Crazy Drug Snafu" available at http://www.nbcnews.com/storyline/lethal-injection/all-oklahoma-executions-hold-after-crazy-drug-snafu-n437621 accessed on 16^th November, 2015

[5] The decision could be found at http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf