Should judges be empowered to sign death warrants of condemned prisoners owing to state governors’ refusal to carry out the task?, lawyers say no, yes. AKEEM NAFIU reports
The growing call by some concerned Nigerians for an urgent constitutional review to divest state governors of the power to sign death warrants of condemned criminals has elicited mixed reactions from some senior lawyers.
Those pushing for the constitutional review argued that in the face of persistent refusal of state governors to carry out their constitutional duty of signing death warrants, judges should be empowered to carry out the task. The call has however elicited mixed reactions from some senior lawyers.
While some argued that judges should be made to sign death warrants in order to decongest the prisons, others submitted that the governors should just be given a time frame in which to sign same . The demand for the constitutional review stems from the outright refusal or prolonged delay by many state governors in signing death warrants, effectively leading to the overcrowding of prisons and frustration of justice.
In Nigeria’s current legal framework, Section 212 of the 1999 Constitution (as amended) and corresponding provisions in the Criminal Procedure Act (CPA) and Criminal Procedure Code (CPC) empower governors to sign death warrants.
Section 212(1) provides as thus: “The Governor may… grant any person concerned with or convicted of any offence created by any law of that State a pardon, either free or subject to lawful conditions; or… substitute a less severe form of punishment for any punishment imposed on that person for such an offence”.
In practical terms, even after an individual has been convicted and sentenced to death by a competent court, execution cannot be carried out without the governor’s consent. Sadly, many governors, due to political, moral or religious reasons, have often shy away from this responsibility, thereby creating a judicial impasse.
In effect, while the court can convict and sentence, the ultimate decision to carry out the execution rests with the governor. The relevant provisions in the Administration of Criminal Justice Act (ACJA), particularly Section 12, also tied executions to the governor’s assent.
Outcry over prison congestion
The acting Comptroller General of the Nigerian Correctional Service (NCoS) Sylvester Nwakuche, had while appearing before the Senate Committee on Interior revealed that no fewer than 3,688 prisoners are on death row across its various facilities in the country. Nwakuche lamented the failure of state governors to sign death warrants of inmates on death row, saying it has further compounded the challenges faced by the NCoS.
He said: “Inmates on death row are now 3,688 from 3,590 in September 2024. State governors are part of our challenges. They refuse to execute inmates on death row; neither do they commute their death sentences to life imprisonment.
“If they commute death sentences to life imprisonment, it is easier for us to distribute them to rural correctional facilities which are not as congested as those in urban correctional facilities.
“This is because the issue of congestion is a major urban phenomenon. Our correctional facilities in urban centres are more congested than those in rural areas. If we commute them to life sentencing, we will be able to distribute them equitable”.
Previous calls
The National Human Rights Commission (NHRC) had on multiple occasions raised concerns about the inhuman conditions of inmates on death row, many of whom have been left in limbo due to governors’ failure to sign execution orders.
What we need is a reform that compels governors to act within a time frame
A former Executive Secretary of NHRC, Prof. Bem Angwe, in 2016, publicly urged the federal government to review relevant laws so that judges or the President can sign death warrants instead of governors who may be unwilling or morally opposed to capital punishment. Similarly, a rights group, Legal Defence and Assistance Project (LEDAP) has long advocated for either the abolition of the death penalty or an overhaul of the signing process.
In several press releases and legal advocacy campaigns ( between 2018 and 2021), LEDAP called asked government to review constitutional provisions that tie executions to governors’ consent. Similarly, in 2020, a senior NCoS official was quoted during a media tour as calling for a legal amendment that would empower Chief Judges to take final action where the governors fail to do so in a timely manner.
While the NBA national leadership has not made an official resolution on the issue, state chapters like NBA Benin and Lagos have openly criticized the current structure and recommended constitutional amendments to remove governors from the execution process.
At a 2022 criminal justice symposium hosted by NBA Benin Branch, participants unanimously resolved to push for legislative reforms allowing judges to complete the execution process without waiting for executive action.
In the same vein, some retired judicial officers have publicly criticized the political nature of the death warrant signing process. Justice Ishaq Bello, former Chief Judge of the FCT and chair of the Presidential Committee on Prisons Reform, advocated during the 2018–2020 reforms that the judiciary be empowered to close capital cases fully once all appeals are exhausted.
Ironically, some governors have equally asked to be excused from the responsibility of signing death warrants. Governor Babajide Sanwo-Olu of Lagos, during a judicial stakeholders’ forum in 2020, stated that signing a death warrant is a “grave moral burden” and that there should be institutional reforms around how capital punishment is administered.
Similarly, former Governors Akinwunmi Ambode and Godwin Obaseki have admitted to avoiding the process due to religious and ethical concerns, further strengthening public calls for reform. Religious bodies like the Christian Association of Nigeria (CAN) and the Supreme Council for Shari’ah in Nigeria have also weighed in at different times.
Human rights concerns
While many support the amendment to expedite justice, others raise concerns over human rights. Amnesty International and several local rights groups have repeatedly called for Nigeria to abolish the death penalty, describing it as inhumane and irreversible in the face of judicial error.
Convener of a rights group, Justice for All, Michael Edun, had while speaking at a round table in Abuja, equally said: “We are talking about making it easier to kill people.
But we forget that Nigeria has a justice system fraught with corruption, inefficiency and abuse. “The question is not who signs the warrant, but whether we should still be executing at all.”
Situation in other countries
In most common law jurisdictions, the execution of capital punishment is not solely dependent on political actors. In the United States, where death penalty is legal, judges or courts issue execution orders, and governors only get involved during clemency hearings. In India, rhe President and Governors have clemency powers, but judges sign the death warrant after a convict exhausts all appeals.
Death penalty has however been abolished in South Africa. These models show varying balances between the judiciary and executive, but the common theme is that executions are not left to political discretion alone
Lawyers’ position
In the meantime, a cross-section of senior lawyers have expressed divergent views on the propriety of empowering judges to sign death warrants of condemned prisoners.
Speaking on the issue, a constitutional lawyer and Senior Advocate of Nigeria, Chief Mike Ozekhome, called for caution, saying allowing judges to sign death warrants of condemned prisoners may blur the lines between judicial decision-making and executive enforcement.
He said: “This debate strikes at the heart of our separation of powers doctrine. While I sympathize with the victims of delay, we must tread cautiously. Giving judges power to sign death warrants may blur the lines between judicial decisionmaking and executive enforcement.
“What we need is a reform that compels governors to act within a time frame, not a wholesale transfer of the role. It was to ensure checks and balances that the Constitution involves a governor looking into such cases before signing the death warrant or perhaps granting remission of sins through prerogative of mercy. I don’t think the Constitution should be amended to make a judge the sole decider of a person’s life and death fate”.
Speaking in the same vein, a Senior Advocate of Nigeria (SAN), Dr. Joseph Nwobike, said it is the constitutional responsibility of the heads of governments at the state levels to sign death warrants. “I don’t think that it is necessary or expedient for the judges to be empowered to sign death warrants.
It does not happen anywhere in the western world. It is the constitutional responsibility of the heads of governments at the state levels to sign death warrants.
“I also think that the long appellate process may be the primary reason for the high number of pending death warrants. In all, I think that it is very necessary to exercise caution in the execution of death warrants in Nigeria, in view of the powers which the executive branch may exercise to commute the death sentences. “It is also important to recognize the new wave of proposals to abolish the death sentence in Nigeria and other commonwealth jurisdictions.
In all, it is my view that the judges should not be conferred with the power to sign death warrants in Nigeria. The judicial powers begins and ends with trial nd determination of criminal cases. The execution of same should be left for the executive arm of government”, Nwobike said. In his submissions, a former Chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu, noted that taking the task away from state governors will improve efficiency.
He however interrogated the place of death sentence in the modern day society. Odinkalu said: “This is a constitutional matter that reflects our broader institutional dysfunction.The issue is not just who signs the death warrant, but the lack of a systemic approach to criminal justice. Removing governors from the loop may improve efficiency, but we must also discuss whether the death penalty itself still has a place in our society”.
I think it will be better if judges are empowered to sign death warrants
In his views, a rights activist, Kadir Akingbolu, emphasised the urgent need for the constitutional review of empowering judges to sign death warrants. He said governors, being politicians, will forever be sentimental in carrying out their constitutional duty of signing death warrants of condemned prisoners.
“The constitutional review is very important because I will never be in support of the abolition of death sentence. It is part of our laws. However, it is a sad development that governors have persistently refused to sign death warrants and condemned prisoners have remained in prison for ever.
“I think it will be better if judges are empowered to sign death warrants. This is because governors are politicians and they will certainly employ sentiments in performing their constitutional roles. Besides, provisions for feeding allowances running into several millions of naira were made yearly by the country for these set of people, whom in the eyes of the law, are no longer in existence.
“So, I am in support of the clamour for judges to be empowered to sign death warrants of condemned prisoners. This however shouid be without prejudice to the powers of state governors to grant amnesty”, Akingbolu said. In his comments, a senior lawyer, Onesimus Ruya, submitted that governors’ refusal to sign death warrants of condemned prisoners is ridiculing judiciary.
He said: “The delay in signing death warrants by governors is one of the major reasons the criminal justice system faces ridicule. If a court, after trial, convicts and imposes the death penalty, allowing the executive arm to stall it indefinitely raises questions. “It is time for constitutional clarity. Judges should either be empowered to finalize the process or the legislature should define a strict timeline for governors to act.
“In my view, the Constitution should be amended to allow the Chief Judge of a state or the trial judge who imposed the sentence to sign the death warrant. “This will remove the current hypocrisy where politicians hide under moral or religious excuses, while condemning society to lawlessness. Once all appeals have been exhausted and mercy rejected, the process must be concluded”.
In her views, a senior lawyer, Adaora Obiechinna, queried the effectiveness of the existing arrangement where governors are required to sign death warrant before a condemned prisoner can be killed. “The current system is not only ineffective; it is discriminatory. Women whose family members were murdered suffer twice—first from the crime, then from the justice delay.
The judiciary should not be held hostage by executive cowardice. I support an amendment that removes governors from the process entirely”, Obiechinna said. For Timilehin Ojo, a timeline must be set for governors to sign death warrants if sanity will be restored to the justice system. Ojo said: “There’s a compelling need to return sanity to our justice system. Governors must not personalize or politicize the duties assigned to them by law. “However, I would prefer a model where the Constitution sets a deadline—say 30 days after all appeals and mercy petitions are concluded.
If no action is taken, the Chief Judge automatically signs the warrant. That way, we preserve both institutional integrity and efficiency”. Speaking in the same vein, a rights activist, Bright Enado, disclosed that there must be a timeline within which death warrants are to be signed by state governors, if they are to remain part of the process. “Timeline should be given to governors to sign the warrant.
If governors must remain part of the process, laws should impose a mandatory deadline to either sign or commute the sentence. “If a governor fails to act within the period, the power should revert to the judiciary automatically. “However, a national conversation is needed to assess whether capital punishment remains relevant in a rights-conscious democracy”, Enado said.
