Death penalty

by the CJTF. The report adds that in January 2017 children associated with the CJTF had been observed providing security in military-run IDP camps in Borno State.⁴⁸²

Later in the year, the CJTF pledged to stop children from ‘joining or fighting for the group, and to identify and release any members who are under the age of 18’.⁴⁸³

2.5.4.6 CJTF as targets by Boko Haram

Boko Haram has reacted violently to the CJTF’s surveillance activities.⁴⁸⁴ Between 2014 and mid-2017, 680 CJTF members were killed.⁴⁸⁵

According to Amnesty International, members of the CJTF ‘increasingly became targets for Boko Haram. Boko Haram fighters have attacked communities where a Civilian JTF militia has been formed, killing anyone they suspected to be members of the Civilian JTF, and in some cases all young men and boys in these communities’.⁴⁸⁶

One source indicates that dismantling CJTF might become a problem, as its members and civilians who supported it are now Boko Haram’s targets.⁴⁸⁷

• fabricating false evidence leading to the conviction to death of an innocent person;

• aiding suicide of a child or lunatic;

• armed robbery (under the Robbery and Firearms Decree 1984).⁴⁹³

Under the Nigerian Criminal Procedure Act, the age to be tried as an adult is 17 years or over⁴⁹⁴; if the person convicted for murder and sentenced to death has ‘in the opinion of the court (…) not attained the age of seventeen years at the time the offence was committed has been found guilty of murder such offender shall not be sentenced to death but shall be ordered to be detained during the pleasure of the President.’⁴⁹⁵

Death sentences can be executed either by hanging⁴⁹⁶ or shooting (firing squad).⁴⁹⁷ Examples

In September 2017, the Nigerian Senate approved a bill that applies capital punishment for kidnapping if it results in the death of the victim.⁴⁹⁸

Amnesty International reported that in July 2017, ‘state governors agreed to either sign execution warrants or commute death sentences as a way of addressing overcrowding in prisons’. The source reported that in August 2017, ‘the Ogun state government announced that it would no longer maintain an informal commitment to refrain from authorizing executions’.⁴⁹⁹

According to Amnesty International, in 2016 Nigeria executed three persons by hanging in Benin Prison (Edo State). It registered 527 deaths sentences, representing a huge surge when compared to previous years, bringing the total number of people sentenced to death in the country to 1 979. The authorities pardoned 33 prisoners, exonerated another 32 and commuted a total of 105 death sentences.⁵⁰⁰

In December 2014, 54 Nigerian soldiers were convicted to death by shooting, after a military court found them guilty of mutiny.⁵⁰¹ In September 2014, 12 soldiers were also sentenced to death by court-martial in Abuja, for mutiny and attempted murder of a commanding officer in Maiduguri.’⁵⁰²

In 2013, Nigeria executed four persons who had been sentenced to death.⁵⁰³

2.6.1 Sharia penal code and the death penalty

Under the various Sharia penal laws applicable to the 12 northern Nigeria states, death penalty is applicable when convicted by one of the following offences:

• zina (adultery);

• rape;

• sodomy;

• incest;

493 HURILAWS, Basic Country Report Nigeria, n.d., available at: url.

494 Nigeria, Criminal Procedures Act, art. 2, 1990, url

495 Nigeria, Nigeria Criminal Code Act, art. 319 (2), 1990, available at: url

496 Nigeria, Criminal Procedures Act, art. 367 (1), 1990, url

497 Nigeria, Robbery and Firearms Decree 1984, available at: url

498 Daily Trust, Death penalty for kidnappers, 20 January 2017, url; AI, Amnesty International Report 2017/18, Nigeria, 24 February 2018, url

499 AI, Amnesty International Report 2017/18, Nigeria, 24 February 2018, url

500 AI, Death Sentences and Executions in 2016, 11 April 2017, url

501 BBC, Nigerian soldiers given death penalty for mutiny, 17 December 2014, url

502 BBC, Twelve Nigerian soldiers sentenced to death for mutiny, 16 September 2014, url

503 Economist (The), Politics this week, 29 June 2013, url

• witchcraft and juju offences.⁵⁰⁴

According to Hurilaws, under Sharia law, children under 18 years old can be sentenced to death. The age of adulthood is flexible: ‘the age at which a person becomes responsible for his or her acts, often taken at the age of puberty [taklif].⁵⁰⁵ Children under 18 are therefore possibly subject to death penalty.’⁵⁰⁶ Similarly, another source indicates that ‘no sentence of hudud⁵⁰⁷ or qisas⁵⁰⁸ shall be imposed on a person who is under the age of taklif.’⁵⁰⁹

The execution of death sentences under Sharia law include hanging, stoning (rajm) and crucifixion (salb). The latter two are applicable only to Muslims. Stoning is applicable in cases of zina (adultery), rape (if the offender is married), incest (if the offender is married) and homosexual sodomy, whereas crucifixion (salb) is the punishment for armed robbery (hirabah) resulting in death when property is actually taken.⁵¹⁰

Adbul Raufu Mustapha, associate professor of African Politics at the Oxford Department of International Development published a study titled ‘Exploring 15 years of Sharia implementation in northern Nigeria’, where it is found that the ‘Islamic criminal law was not being imposed on non-Muslims against their will, and serious punishments such as amputations and stoning to death were rarely being imposed – and where they were imposed, were not being executed’. The study also indicates that the record keeping of court sentences is very poor and information is lacking.⁵¹¹

According to Elizabeth Peiffer, attorney and author of a study on death penalty and its interpretation under traditional Islamic law in Nigeria, although the 12 northern states adopted Shari'a’s penal code and criminal law, the ‘rigidity’ of its application ‘varies greatly from state to state’. Shari'a law applies only to Muslim citizens, and non-Muslims in the northern states are tried by common law courts or customary courts.⁵¹²

As most Nigerian Muslims are Sunni⁵¹³, they follow the Maliki school of jurisprudence, which is considered to be ‘fairly flexible’ due to the sources of it uses: urf, the useful public practice, and maslaha, the public good. According to Peiffer, ‘Shari'a courts decide cases on a case-by-case basis, without the use of precedent’ and, contrary to secular law, the ‘Maliki school of jurisprudence provides that a person is presumed guilty until innocence is proven’.⁵¹⁴

2.6.2 Offences subjected to death penalty in the Sharia law

Peiffer indicates that the implementation of Sharia law in northern states ‘has resulted in harsher punishments and less discretion for judges’; Zina (adultery), for example, ‘previously punishable by flogging, now carries a mandatory death sentence, by stoning’.⁵¹⁵

504 HURILAWS, Basic Country Report Nigeria, n.d., available at: url

505 Taklif means the age of puberty of a person, url

506 HURILAWS, Basic Country Report Nigeria, n.d., available at: url

507 Hudud [plural of hadd] means offences or punishments that are fixed under the Sharia and includes offences or punishments in Section 57 of Sharia Penal Code, url. The concepts of Hadd and Hudud can be seen here: Brown, Jonathan A.C., Stoning and Hand Cutting—Understanding the Hudud and the Shariah in Islam, 12 January 2017, url

508 Qisas means punishments inflicted upon the offenders by way of retaliation for causing death of or injuries to a person url

509 CILS, Harmonised Sharia Criminal Procedure Code, 2007, url

510 Cornell Law School, Cornell center on the Death Penalty Worldwide, info current as of 19 June 2014, url

511 Mustapha, Abdul Raufu, Exploring 15 years of Sharia implementation in northern Nigeria, October 2016, url, p. 5

512 Peiffer, Elizabeth, The Death Penalty, 2005, available at: url

513 Harvard University, Harvard Divinity School, Religious Literacy Project, Islam in Nigeria, n.d., url

514 Peiffer, Elizabeth, The Death Penalty, 2005, available at: url

515 Peiffer, Elizabeth, The Death Penalty, 2005, available at: url

According to the author, ‘apostasy, a hadd⁵¹⁶ offense for which the penalty is death, is not included in the Shari'a penal codes, probably due to the diversity of religion in Nigeria’.⁵¹⁷ Contrarily, other sources indicate that indeed apostasy is a crime with a mandatory death sentence in the northern states in Nigeria, although there are no recent reports of its actual execution.⁵¹⁸ One source indicates that

‘conversion to Judaism or Christianity is explicitly permitted’.⁵¹⁹

516 Singular of Hudud. The concepts of Hadd and Hudud can be seen here: Brown, Jonathan A.C., Stoning and Hand Cutting—

Understanding the Hudud and the Shariah in Islam, 12 January 2017, available at: url

517 Peiffer, Elizabeth, The Death Penalty, 2005, available at: url

518 Cornell Law School, Death Penalty Database, Nigeria, last updated 19 June 2014, url; Chicago Tribune, Leaving Islam is not a capital crime, 2 April 2006, url; Premium Times, Dons disagree on abolition of death penalty in Nigeria, n.d., url

519 Cornell Law School, Death Penalty Database, Nigeria, last updated 19 June 2014, url