THE CASE FOR ABOLITION: A CRITICAL EXAMINATION OF THE DEATH PENALTY AND HUMAN RIGHTS IN NIGERIA

ABSTRACT

Nigeria retains the death penalty as a form of punishment backed up by its constitution, which is thus applicable to an expansive range of offences under the Criminal Code Act, the Penal Code (Northern States) Federal Provisions Act, and various Sharia penal statutes operative in twelve northern states. While the country has maintained a de facto moratorium on executions since December 2016, its courts continue to hand down death sentences at a troubling rate, with over 3,413 individuals languishing on death row as at 2023. This article critically examines the case for the abolition of capital punishment in Nigeria, advancing the argument that the death penalty is irreconcilable with the evolving standards of human rights, incompatible with Nigeria’s international legal obligations, ineffective as a deterrent to crime, and fundamentally unjust in its discriminatory application. It concludes by recommending a phased and constitutionally grounded pathway toward abolition.

INTRODUCTION

Uncertainty in the domain of criminal law and human rights provokes deep-a-moral, legal, and philosophical tension as the question of whether the state may lawfully take the life of one of its citizens should be a form of punishment. In Nigeria, this question is not merely theoretical. It is embedded in the architecture of the legal system, encoded in the Constitution, and interpreted daily in courtrooms across the country, even as apathy to the political will has quietly eroded over the past decade.

In record, Nigeria is one of fifteen African countries that have yet to abolish the death penalty. Since the last known judicial execution on 23 December 2016, the country has maintained what international observers classify as a de facto moratorium on executions. Yet, paradoxically, Nigerian courts continue to sentence individuals to death, and the death row population grows larger with each passing year. In 2023 alone, more than 246 new death sentences were recorded, bringing the total number of condemned prisoners to over 3,413. This gap between executions and capital sentencing creates a legal and moral crisis that demands urgent resolution.

This article argues, as a matter of principle and deliberation, that Nigeria ought to formally and permanently abolish the death penalty. The case for abolition rests on four primary pillars: the incompatibility of capital punishment with the right to life and human dignity as guaranteed under the Chapter 4 of the Nigerian Constitution and international human rights instruments; the absence of credible evidence that the death penalty serves as a good way to deter crime; the irreversible risk of executing the innocent in a criminal justice system ; and the discriminatory manner in which capital punishment is applied, which has burdened the poor, the vulnerable, and the socially marginalized. The article further contends that the path to abolition, though the rule of the constitution, is legally feasible and morally imperative.

THE LEGAL FRAMEWORK GOVERNING THE DEATH PENALTY IN NIGERIA

Constitutional Basis

The death penalty in Nigeria derives its primary legal validity from Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which provides that every person has a right to life, and that no one shall be deprived intentionally of life save in execution of a court sentence in respect of a criminal offence of which the person has been found guilty.[1] The constitutionally embedded proviso, therefore, both guarantees the right to life and simultaneously permits its derogation through lawful execution. The Nigerian Supreme Court, in the landmark case of Kalu v State (1998), affirmed that this provision expressly sanctions capital punishment, holding that the right to life is qualified rather than absolute.[2] This position was further reiterated in Adeniji v State (2000) and Anthony Okoro v State (2012), in which the Supreme Court upheld both the legality of the death penalty and the constitutionality of its methods of execution.[3]

Section 34(1)(a) of the same Constitution, which prohibits torture and inhuman or degrading treatment, has not been interpreted by Nigerian courts as extending to capital punishment per se.[4] In a significant judicial development, however, a Federal High Court held that execution by hanging or firing squad constitutes a violation of the condemned person’s right to dignity and amounts to inhuman and degrading treatment, being therefore unconstitutional under Section 34(1)(a).[5] This ruling, while not yet authoritatively settled at the Supreme Court level, illustrates the growing judicial discomfort with the practice and foreshadows a potentially transformation in terms of constitutional argument.

Statutory Framework

Beyond the Constitution, capital punishment in Nigeria is prescribed under several statutory instruments. The Criminal Code Act (Cap C38, Laws of the Federation of Nigeria 2004), applicable primarily in southern Nigeria, prescribes the death penalty for offenses including murder, treason, treachery, and capital perjury.[6] The Penal Code (Northern States) Federal Provisions Act (Cap P3) applies in the north and imposes the death penalty for culpable homicide, treason, and related offenses.[7] The Robbery and Firearms (Special Provisions) Act further mandates a capital sentence for armed robbery, constituting one of the most criticized instances of mandatory death sentencing in Nigerian law.[8]

In the twelve states operating under Sharia law, the penal codes extend capital punishment to offenses including adultery (zina), apostasy, same-sex conduct, and, in some jurisdictions, blasphemy which are categories of offenses that bear no equivalence to the ‘most serious crimes’ standard recognized under international human rights law. The Nigerian Correctional Service Act of 2019 introduced a limited mitigation mechanism, permitting a Chief Judge to commute a death sentence to life imprisonment where the condemned has exhausted all appeals and ten years have elapsed without execution.[9] While this provision represents a modest legislative acknowledgement of the problematic nature of prolonged death row incarceration, it falls well short of the structural reform the situation demands.

III. THE HUMAN RIGHTS CASE AGAINST THE DEATH PENALTY

The Right to Life and Human Dignity

The foundational objection to capital punishment in a rights-based legal order is its absolute and irreversible negation of the right to life. Article 4 of the African Charter on Human and Peoples’ Rights, domesticated in Nigeria by the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, declares unequivocally that human beings are inviolable and that every human being shall be entitled to respect for life and the integrity of the person.[10] Article 5 of the same Charter further prohibits all forms of degradation of the human person.[11] Similarly, Article 3 of the Universal Declaration of Human Rights 1948 affirms the right to life as a universal and inalienable entitlement,[12] while Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) 1966, to which Nigeria is a party, declares that the right to life is inherent in the human person and that no one shall be arbitrarily deprived of life.[13]

The African Commission on Human and Peoples’ Rights, in its Resolution ACHR/Res.544 (LXXIII) 2022, explicitly affirmed that capital punishment constitutes cruel, inhuman, and degrading treatment and called upon all African states to observe a moratorium on executions with a view to eventual abolition.[14] The Commission grounded this position in Articles 1, 4, 5, and 7(1) of the African Charter, recognizing the trend in international law toward abolition and the incompatibility of the death penalty with the protection of human dignity. Critically, the African Charter, as a living instrument susceptible to dynamic interpretation in light of evolving international standards, increasingly points toward abolition rather than retention.

The philosophical foundation of human dignity is the idea, that every person possesses an intrinsic worth that the state may not extinguish which  is fundamentally incompatible with capital punishment. The South African Constitutional Court, in the seminal case of State v Makwanyane (1995), held unanimously that the death penalty violated the post-apartheid Constitution’s unqualified protection of the right to life and the prohibition of cruel, inhuman, and degrading punishment.[15] While Nigeria’s constitutional structure differs from South Africa’s in that the Nigerian Constitution explicitly permits capital sentencing, the moral and philosophical logic of Makwanyane remains profoundly instructive for the trajectory of Nigerian constitutional jurisprudence.

Nigeria’s International Obligations and the Scope of Capital Crimes

A critical aspect of Nigeria’s non-compliance with international human rights law concerns the breadth of offenses attracting the death penalty. Article 6(2) of the ICCPR restricts the application of the death penalty to only the ‘most serious crimes,’ a standard interpreted by the UN Human Rights Committee as being confined to intentional killing.[16] Nigeria’s death penalty regime, however, extends far beyond this standard. Capital punishment applies not only to murder but to armed robbery, kidnapping, treason, and  under Sharia law — to adultery, apostasy, same-sex conduct, and blasphemy, none of which satisfy the ‘most serious crimes’ threshold under international law.

The case of Yahaya Sharif-Aminu, sentenced to death in Kano State for blasphemy in connection with a song he allegedly composed, starkly illustrates the dangerous overreach of Nigeria’s capital sentencing framework. Amnesty International has consistently documented that the use of the death penalty for blasphemy violates Nigeria’s obligations under the ICCPR.[17] In February 2025, the European Parliament adopted a resolution expressing concern over his continued detention and the risk of execution.[18] The UN Human Rights Committee has further affirmed that blasphemy laws penalising religious expression are incompatible with Article 19 of the ICCPR, which protects freedom of expression.[19] The invocation of the death penalty in such cases is not merely legally indefensible — it is a profound affront to the principles of human dignity and religious freedom.

The international community’s direction on capital punishment is unambiguous. In December 2024, the United Nations General Assembly adopted the tenth resolution calling for a global moratorium on the use of the death penalty, with 130 votes in favour.[20] As of 2025, more than two-thirds of the world’s countries have abolished the death penalty in law or practice, and the African continent itself is increasingly described as an emerging abolitionist region, with recent abolitions in Ghana, Zambia, Zimbabwe, Equatorial Guinea, and the Central African Republic.[21]

THE ABOLITIONIST ARGUMENTS: A CRITICAL ANALYSIS

The Failure of Deterrence

Perhaps the most commonly advanced justification for retaining the death penalty is the deterrence argument: the proposition that the threat of capital punishment dissuades potential offenders from committing capital crimes. In Nigeria, this argument has been deployed repeatedly to justify the expansion of the death penalty to offences such as kidnapping, terrorism, and — most recently — drug trafficking, with the Senate proposing in May 2024 a bill to add drug trafficking to the list of capital crimes. Vigorous engagement by the Nigerian abolitionist movement contributed to the bill’s defeat in November 2024.

The empirical evidence for the deterrence thesis is, at best, inconclusive. The National Research Council of the United States, in its landmark 2012 review of approximately fifty years of research, concluded that existing studies were fundamentally flawed and should not be used to inform judgements about the effect of the death penalty on homicide rates.[22] A 2025 peer-reviewed study published in the International Journal of Human Rights examined crime rates in eleven countries before and after the abolition of the death penalty and found that in eight of the eleven nations studied, crime rates were actually lower following abolition.[23] The World Coalition Against the Death Penalty has further observed that psychological and sociological research demonstrates that many criminal acts are crimes of passion, committed in moments of emotional intensity where the potential offender does not rationally weigh the consequences of punishment — rendering the rational-actor assumption underlying deterrence theory empirically unsound.[24]

In the Nigerian context, the empirical failure of deterrence is most starkly illustrated by the trajectory of violent crime over the decades during which the death penalty has been in force. Despite its continued application, armed robbery, kidnapping, terrorism, and other capital offences have not been significantly reduced. The Nigerian government’s pattern of repeatedly expanding the list of capital offences in response to new crime waves implicitly concedes the futility of the deterrence approach: each expansion acknowledges that the previous application of the death penalty failed to prevent the emergence of the new crime it was meant to address.[25]

The Irreversibility Problem and the Risk of Wrongful Execution

Capital punishment is unique among all criminal sanctions in its absolute irreversibility. Once a person is executed, no appellate process, no subsequently discovered evidence, and no exercise of executive clemency can undo the harm done. In a criminal justice system that aspires to the ideal of justice, this irreversibility demands near-absolute certainty of guilt. Yet no criminal justice system in the world can guarantee such certainty — least of all one afflicted by the structural deficiencies that characterise the Nigerian system.

The Advocates for Human Rights, in their August 2025 report to the UN Committee Against Torture, documented that death penalty practices in Nigeria have a disproportionate impact on individuals of lower socio-economic status who lack adequate access to legal representation, while raising serious fair trial and due process concerns attributable to systemic corruption.[26] These vulnerabilities include inadequate legal representation for accused persons who lack financial means; corruption within police and prosecutorial institutions that can distort the integrity of investigations; prolonged pre-trial detention that may produce confessions under duress; and an overburdened judiciary ill-equipped to conduct the exhaustive review that capital cases demand. These concerns go to the very heart of whether any death sentence handed down in Nigeria can rest on the kind of unimpeachable foundation that the irrevocability of execution demands.

The mandatory death sentence — which denies the sentencing court any discretion to consider mitigating circumstances — exacerbates this problem considerably. Under the Robbery and Firearms Act, conviction for armed robbery carries a mandatory death sentence regardless of the particular circumstances of the offence or the offender. As Badejogbin has observed in a detailed analysis of Onuoha Kalu v The State, the prospects for a successful constitutional challenge to mandatory death penalty laws are substantial, given the fair trial rights that such laws effectively nullify.[27]

Discriminatory Application

A persistent and deeply troubling dimension of the death penalty in Nigeria is its discriminatory character. The UN High Commissioner for Human Rights, Volker Türk, noted in a 2025 statement that the death penalty is often discriminatory, with a disproportionate impact on racial, ethnic, linguistic, and religious minorities, and the LGBTIQ+ community.[28] In the Nigerian context, the discriminatory dimensions of capital punishment are uniquely complex. The existence of a dual criminal law system — the secular Criminal Code and Penal Code in the south, and the Sharia penal codes in the north — creates a regime of differential justice in which the same underlying conduct may attract fundamentally different criminal exposure depending solely on the geographical location of the accused and their religious identity. This structural asymmetry violates the constitutional guarantee of equal protection before the law.

Furthermore, the Advocates for Human Rights have specifically documented the discriminatory impact of the death penalty on women in Nigeria, noting that the majority of crimes for which women are sentenced to death can be attributed to gender inequality, and that the criminal justice system fails to account for the gendered dimensions of women’s criminal conduct in capital cases.[29] This body of evidence compels the conclusion that the death penalty, as applied in Nigeria, is not a neutral instrument of justice but a weapon that strikes hardest at those whom society has already failed.

ADDRESSING COUNTER-ARGUMENTS

Retributive Justice

Proponents of the death penalty frequently invoke the principle of retributive justice — the proposition that a person who takes a life forfeits their own, and that the state is morally obligated to impose an equivalent punishment. This argument has intuitive force and deep cultural resonance in many Nigerian communities where the notion of proportional punishment is strongly felt. However, the retributive argument, properly examined, does not compel the conclusion that the state must execute. Retributive theory requires only that punishment be proportionate to the offence; it does not require the state to replicate the very harm it seeks to condemn. Life imprisonment without the possibility of parole satisfies the retributive demand for severe and proportionate sanction while preserving the humanity of the condemned and maintaining the possibility of error correction.[30]

Public Opinion and Cultural Context

It is sometimes argued that abolition is culturally inappropriate for Nigeria, and that public opinion in favour of the death penalty must be respected in a democratic society. There is genuine democratic force to this argument, and it would be intellectually dishonest to dismiss the views of those who, often motivated by experiences of violence and insecurity, support retention. However, the history of rights protection in democratic societies demonstrates that fundamental rights cannot be subject to majoritarian override. The very purpose of constitutional rights is to place certain entitlements beyond the reach of temporary popular preferences. As Chaskalson P observed in Makwanyane, the question of whether capital punishment comports with constitutional values is ultimately a legal and moral question, not a question of popular sentiment.[31] Archibong similarly notes that in the Nigerian context, the protection of the right to life must ultimately prevail over majoritarian preferences for retention.[32]

RECOMMENDATIONS: A PATHWAY TO ABOLITION

The foregoing analysis makes clear that the retention of the death penalty in Nigeria is legally questionable, empirically unjustified, and morally indefensible. The following recommendations are advanced as a phased and constitutionally grounded pathway toward abolition.

First, Nigeria should enact a formal, legally binding moratorium on all executions as an immediate legislative priority. The existing de facto moratorium is fragile, dependent on the discretion of state governors, and incapable of providing the legal certainty that condemned persons and their families deserve. A statutory moratorium would provide the necessary legal foundation for the broader reform process.

Second, the National Assembly should initiate the process of constitutional amendment required to remove the death penalty from the text of Section 33(1) of the 1999 Constitution. This is admittedly a complex and politically demanding process, requiring approval by two-thirds of both houses of the National Assembly and the concurrence of at least twenty-four state houses of assembly. However, the growing international momentum toward abolition — as well as the domestic abolitionist movement’s successful engagement in defeating the 2024 drug trafficking death penalty bill — demonstrates that political space for reform exists.

Third, all mandatory death sentences should be reviewed and resentenced in accordance with the principles of individualised justice, proportionality, and due process. The constitutionality of mandatory capital sentencing is questionable, and a judicial review process modelled on the precedent set in Malawi’s Kafantayeni case would serve both justice and constitutional integrity.

Fourth, Nigeria should ratify the Second Optional Protocol to the ICCPR and the draft Additional Protocol to the African Charter on the Abolition of the Death Penalty in Africa. Ratification of these instruments would align Nigeria with the global and continental consensus and create binding legal obligations that would reinforce the domestic reform process.

Fifth, the scope of capital offences under Sharia law should be reformed to conform with the ‘most serious crimes’ standard under Article 6(2) of the ICCPR, ensuring that no person may be sentenced to death for offences that do not involve intentional killing.

VII. CONCLUSION

The death penalty in Nigeria occupies a deeply contradictory position: constitutionally sanctioned yet practically suspended, legally expansive yet internationally condemned, politically retained yet morally untenable. The case for abolition is not built on sentiment alone — it is grounded in constitutional principle, international legal obligation, empirical evidence, and the fundamental imperatives of justice and human dignity. A state that aspires to be a democracy governed by law cannot indefinitely sustain a punishment that denies the possibility of error correction, that falls disproportionately on the poor and the marginalised, and that has demonstrably failed to deter the crimes it purports to punish.

The global trend is unambiguous: as of 2025, more than two-thirds of the world’s nations have abolished capital punishment in law or practice, and the African continent itself is increasingly described as a potential abolitionist continent. Nigeria, as Africa’s most populous nation and one of its most consequential legal jurisdictions, has both the responsibility and the opportunity to lead this transformation. The moment for action is not deferred to some distant constitutional future — it is now. The over three thousand human beings currently sitting on death row in Nigerian prisons are waiting.

BIBLIOGRAPHY

Legislation

Constitution of the Federal Republic of Nigeria (as amended) 1999, ss 33, 34.

Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004.

Penal Code (Northern States) Federal Provisions Act, Cap P3, Laws of the Federation of Nigeria 2004.

Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004.

Nigerian Correctional Service Act 2019.

African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria 2004.

Cases

Adeniji v State (2000) 645 RNWLR 356.

Anthony Okoro v State (2012) LPELR-SC 187/2007.

Kalu v State (1998) 12 SCNJ (SC Nigeria).

Onuoha Kalu v The State [discussed in (2014) 14(1) African Human Rights Law Journal 132].

State v Makwanyane (1995) (3) SA 391 (CC) (South Africa).

International Instruments

African Charter on Human and Peoples’ Rights 1981.

International Covenant on Civil and Political Rights 1966.

Second Optional Protocol to the ICCPR Aiming at the Abolition of the Death Penalty 1989.

Universal Declaration of Human Rights 1948.

African Commission on Human and Peoples’ Rights, Resolution ACHR/Res.544 (LXXIII) 2022.

UN General Assembly Resolution 75/183, Moratorium on the Use of the Death Penalty (17 December 2024).

UN Human Rights Committee, General Comment No 36 (2019) on Article 6, CCPR/C/GC/36.

UN Human Rights Committee, General Comment No 34 (2011) on Article 19, CCPR/C/GC/34.

Journal Articles and Reports

JE Archibong, ‘Right to Life and the State’s Power to Kill: The Quandary over Death Penalty in Nigeria’ (2023) 26(S1) Journal of Legal, Ethical and Regulatory Issues 1.

O Badejogbin, ‘Onuoha Kalu v The State and Flaws in Nigeria’s Death Penalty Jurisprudence’ (2014) 14(1) African Human Rights Law Journal 132.

The Advocates for Human Rights and World Coalition Against the Death Penalty, ‘Nigeria: Death Penalty — Report to the UN Committee Against Torture’ (August 2025).

The Advocates for Human Rights, ‘Amicus Brief on Death Penalty and Deterrence to the African Court on Human and Peoples’ Rights’ (April 2025).

World Coalition Against the Death Penalty, ‘Debunking the Deterrence Theory’ (May 2024).

International Journal of Human Rights, ‘The Abolition of Death Penalty and Crime Control in Nigeria’ (2025) 29(10) 1441.

Amnesty International, ‘Nigeria: Not a Quick Fix to Insecurity — The Death Penalty as an Ineffective Deterrent to Crime’ (2023).

Amnesty International, ‘Third Urgent Action: Yahaya Sharif-Aminu’ (February 2025) AFR 44/9041/2025.

European Parliament Resolution on the Detention and Risk of Death Penalty for Individuals in Nigeria Charged with Blasphemy (13 February 2025).

DS Nagin and JV Pepper (eds), Deterrence and the Death Penalty (National Research Council, National Academies Press 2012).

ECPM, ‘Barometer: Death Penalty Worldwide 2025’ (January 2026).

Office of the UN High Commissioner for Human Rights, Statement of Volker Türk on the Death Penalty (10 October 2025).

[1]Constitution of the Federal Republic of Nigeria (as amended) 1999, s 33(1).

[2]Kalu v State (1998) 12 SCNJ (SC Nigeria).

[3]Adeniji v State (2000) 645 RNWLR 356; Anthony Okoro v State (2012) LPELR-SC 187/2007.

[4]Constitution of the Federal Republic of Nigeria (as amended) 1999, s 34(1)(a).

[5]Unreported Federal High Court ruling discussed in Olawale Ajai, ‘Execution Methods and Dignity Rights in Nigeria’ (2022) 18 UNILAG Law Review 45.

[6]Criminal Code Act, Cap C38, Laws of the Federation of Nigeria 2004, ss 319, 327, 332.

[7]Penal Code (Northern States) Federal Provisions Act, Cap P3, Laws of the Federation of Nigeria 2004, s 221.

[8]Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria 2004, s 1(2)(b).

[9]Nigerian Correctional Service Act 2019, s 11.

[10]African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, Cap A9, Laws of the Federation of Nigeria 2004, Art 4.

[11]African Charter on Human and Peoples’ Rights 1981, Art 5.

[12]Universal Declaration of Human Rights 1948, Art 3.

[13]International Covenant on Civil and Political Rights 1966 (ICCPR), Art 6(1).

[14]African Commission on Human and Peoples’ Rights, Resolution ACHR/Res.544 (LXXIII) 2022.

[15]State v Makwanyane (1995) (3) SA 391 (CC) paras 25–88 (Chaskalson P).

[16]ICCPR Art 6(2); UN Human Rights Committee, General Comment No 36 (2019) on Art 6, CCPR/C/GC/36, para 35.

[17]Amnesty International, ‘Third Urgent Action: Yahaya Sharif-Aminu’ (February 2025) AFR 44/9041/2025.

[18]European Parliament Resolution on the Detention and Risk of Death Penalty for Individuals in Nigeria Charged with Blasphemy (13 February 2025).

[19]UN Human Rights Committee, General Comment No 34 (2011) on Art 19, CCPR/C/GC/34, para 48.

[20]UN General Assembly Resolution 75/183, Moratorium on the Use of the Death Penalty (17 December 2024).

[21]ECPM, ‘Barometer: Death Penalty Worldwide 2025’ (January 2026) 8.

[22]DS Nagin and JV Pepper (eds), Deterrence and the Death Penalty (National Research Council, National Academies Press 2012) 2.

[23]International Journal of Human Rights, ‘The Abolition of Death Penalty and Crime Control in Nigeria’ (2025) 29(10) 1441.

[24]World Coalition Against the Death Penalty, ‘Debunking the Deterrence Theory’ (May 2024) 6.

[25]Amnesty International, ‘Nigeria: Not a Quick Fix to Insecurity — The Death Penalty as an Ineffective Deterrent to Crime’ (2023) 12.

[26]The Advocates for Human Rights (n 22) 4–5.

[27]O Badejogbin, ‘Onuoha Kalu v The State and Flaws in Nigeria’s Death Penalty Jurisprudence’ (2014) 14(1) African Human Rights Law Journal 132, 145.

[28]Office of the UN High Commissioner for Human Rights, Statement of Volker Türk on the Death Penalty (10 October 2025).

[29]The Advocates for Human Rights (n 22) 6.

[30]State v Makwanyane (n 15) para 88.

[31]ibid para 88.

[32]JE Archibong, ‘Right to Life and the State’s Power to Kill: The Quandary over Death Penalty in Nigeria’ (2023) 26(S1) Journal of Legal, Ethical and Regulatory Issues 1, 7.