Nigerian Death Penalty Sentencing Over Video Conference Raises Fair Trial Concerns
Courts around the world have suspended open court hearings due to lockdown extensions amidst the COVID-19 pandemic. In May 2020, a Nigerian man who appeared remotely from prison was sentenced to death over a Zoom call by the High Court in Lagos. In a country that has some of the harshest and most regressive death penalty laws, this sentencing raises serious concerns about the right to a fair trial.
Olalekan Hameed was charged with the murder of a woman in a virtual trial that lasted nearly three hours. During the hearing, the prosecution examined several witnesses and recorded testimony concerning circumstantial evidence. Under section 36(4) of the Nigerian Constitution, accused persons are entitled to a fair hearing in public within a reasonable time. They also have the right to examine prosecution witnesses in person before the court, as per section 36(6). However, virtual proceedings are a barrier to the full realisation of these rights.
The Nigerian courts have held that having a ‘public hearing’ is mandatory, even if no miscarriage is occasioned by an alternative. In one decision, the courts nullified a death sentence on the grounds that a hearing by a trial judge in his chambers was unconstitutional as it did not amount to a public place accessible to all and sundry. While the Lagos State Judiciary and the National Judicial Council have issued guidelines to validate virtual court sittings, judges are unconvinced, suggesting that such directions cannot override the Constitution and judicial precedents. They have also expressed apprehensions that virtual hearings could be set aside by the Supreme Court.
Even if these proceedings were to be live-streamed, there are hurdles concerning access to the internet and digital literacy in Nigeria. The Nigerian Supreme Court has clarified that a public hearing means access for everyone without discrimination. Low internet connectivity, frequent power cuts, and poor electricity supply in the country create a substantive barrier to access virtual hearings. While virtual proceedings have become the new reality, the public may be left out when courts have varying rules of access or the platforms used can only accommodate a limited number of viewers.
Further, with lockdowns forcing lawyers to stay home, many accused persons cannot adequately prepare for hearings and access records. Death sentence cases involve complex evidence, last-minute witnesses, and the use of defence investigators and expert testimony to gather crucial evidence concerning mitigating circumstances of the accused. Judges in Nigeria also have the right to assess the demeanour of witnesses to determine their credibility. In such situations, communication glitches during remote interactions risk losing key testimony or arriving at incorrect conclusions about witness credibility. Although the Nigerian Senate has recently introduced a bill to legalise virtual proceedings, it is questionable whether this will address the substantive barriers mentioned herein.
Seen in the context of the prevalence of wrongful convictions from around the world shows, that death penalty adjudication is error-prone and is a serious human rights problem. More recently, a man in Singapore was also sentenced to the mandatory death penalty for drug trafficking, over a videoconference hearing. Many human rights organisations have flagged such rulings as callous, cruel, inhumane, and lacking accountability. With an overwhelming number of prisoners testing positive for the pandemic globally, its spread in prisons has itself been termed as a ‘potential death sentence’ for many inmates.
In Nigeria, law enforcement agencies often resort to torture and ill-treatment, to extract confessional statements and sentence persons to death. The system is riddled with delays, with the average time spent on death row by prisoners being between 10 and 15 years, and appeals even pending for 24 years. With the expectation of death hanging over their heads, many prisoners suffer from physical ailments and mental illness. While the inevitable use of technology can help plug gaps in the criminal justice system, it cannot overlook glaring procedural flaws along the way. A single technical failure during virtual hearings could lead to irrevocable consequences for persons on death row. In these dire circumstances, such proceedings cannot serve as an alternative to open court hearings as they do not provide adequate protection of the right to a fair trial.