*Rules Courts Cannot Compel Legislature To Amend The Law, Calls On Executive And Legislature To “Unfetter The Hands” Of Judges In Capital Cases
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The Federal High Court sitting in Enugu has delivered a judgment declaring that mandatory death penalty provisions in Nigerian law deny judges the discretion to determine appropriate sentences in capital cases.
The court, however, held that it cannot compel the legislature to amend the law.
It ruled that “it behooves the Executive and Legislative arms of Government to do the needful to unfetter the hands of the Courts, in order to allow the courts the carte blanche to exercise their judicial discretion to commute death sentences.”
The court added that “until that is done, the hands of the courts in Nigeria will remain tied.”
The judgment, delivered on Wednesday, April 30, 2026, by Justice Mabel T. Segun-Bello in Suit No. FHC/EN/CS/212/2024, filed by Senior Advocate of Nigeria Ikeazor Akariwe and a death row inmate, Bassey Samuel, who is awaiting execution at the Okere Correctional Centre in Delta State, represents one of the most significant judicial pronouncements on capital punishment in Nigerian legal history, granting the first relief sought by the applicants while declining to grant the second and third reliefs on the grounds that courts cannot direct the legislature to exercise its lawmaking functions.
The judgment engaged extensively with global comparative jurisprudence from South Africa, Lesotho, the United States, India, China, and Europe, acknowledged the “significant global shift towards the mitigation of the death penalty,” but concluded that so long as the Supreme Court’s existing precedents upholding mandatory sentencing remain unreversed, and so long as the doctrine of stare decisis binds lower courts, “any form of judicial activism attempted by a lower court to commute a death sentence to a lower punishment will ultimately amount to an exercise in futility.”
The suit was brought by two applicants with distinct but related interests.
The first applicant, Ikeazor Akariwe SAN, brought the action in his capacity as a Senior Advocate who took an oath “to uphold the rule of law and enhance the administration of justice in Nigeria.” His participation transforms what might otherwise be an individual grievance into a public interest action seeking a judicial pronouncement on a systemic question affecting the entire criminal justice system.
The second applicant, Bassey Samuel, is a Nigerian citizen on death row at the Okere Correctional Centre in Delta State. He was charged with armed robbery, an offence he “vehemently denied committing,” but was convicted after trial and sentenced to death. His case represents the concrete human reality behind the abstract legal question: a man facing execution under a mandatory sentencing regime in which the trial judge who heard his case and observed the circumstances had no power to impose any sentence other than death.
The respondents were the Federal Republic of Nigeria, the Attorney-General of the Federation, the President of the Senate, the Speaker of the National Assembly, and the Clerk of the National Assembly, representing both the executive and legislative arms of government with authority over the laws being challenged.
The applicants posed a single question for the court’s determination: “Whether the mandatory death penalty provisions in Nigerian laws do not rob the judges of judicial discretion in sentencing.”
Based on the court’s resolution of that question, three reliefs were sought: a declaration that mandatory death penalty provisions rob judges of discretion; an order directing the respondents to take immediate steps to amend the laws to give judges discretion in capital cases; and an order directing amendment of all mandatory death penalty provisions or, in the alternative, giving judges sentencing discretion in capital offences.
Counsel for the applicants, J.O. Nnani, argued that provisions such as Section 319(1) of the Criminal Code Act, which states that “any person who commits the offence of murder shall be sentenced to death,” leave judges with no alternative. The mandatory word “shall” eliminates all discretion.
Counsel cited a catalogue of Nigerian laws imposing mandatory death sentences: the Criminal Code Act (murder), the Penal Code (Section 221), the Robbery and Firearms (Special Provisions) Act (armed robbery involving deadly weapons), the Armed Forces Act (Section 106, murder by military personnel), the Terrorism (Prevention) Act (certain terrorism offences), and the Administration of Criminal Justice Act.
“The provision of our laws on the mandatory nature of the death sentence has kept the hands of our judges fettered for too long, as they have no power to choose among two or more alternatives. This is the reason the judges’ response to counsel, after allocutus on such cases, is always ‘my hands are tied,'” counsel submitted.
Counsel posed the question that lies at the heart of the debate: “How can a Judge give a decision which is fair when the decision or the sentence of certain offences has been predetermined by the law made by another arm of government who will not pronounce the sentence and who did not observe the trial and the circumstances of the case?”
He argued that some judges, “in a bid to avoid handing down the death sentence, even decide to use the ‘slightest doubt’ in the case of the prosecution as a subterfuge to discharge and acquit the accused person,” a practice that itself does not serve justice because guilty persons escape all punishment rather than receiving a proportionate sentence.
The Attorney-General’s office, through counsel Habibatu U. Chime, opposed the application on multiple grounds.
Counsel argued that death sentencing is “fully recognized and approved by the Constitution,” citing Section 33(1) of the 1999 Constitution, which permits deprivation of life “in execution of the sentence of a court in respect of a criminal offence of which he has been found guilty.”
The respondent traced capital punishment to religious texts, citing Genesis 9:5-6 (“if anyone takes a human life, that person’s life will also be taken by human hands”) and the Holy Quran (prescribing death for offences including treason, highway robbery, and homicide).
Counsel argued that “the Courts lack discretion to alter sentences when the penalty is mandatory and this position does not also fetter the discretion of judges,” relying on the Supreme Court’s decision in Onuoha Kalu v. The State, which held that “death penalty is firmly entrenched in Nigerian law and courts routinely impose death penalty because they are without a discretion to alter sentences when the penalty is mandatory.”
Both the Attorney-General’s office and counsel for the President of the Senate concluded that “Nigeria is not yet ripe for the total abolition of death sentence” and that “the review of legislation or amendment thereof cannot be compelled by the courts.”
Justice Segun-Bello began by clarifying the scope of the suit: “The relief sought by the applicants in this suit is not for the abolition of the death penalty.” The question was narrower: whether mandatory sentencing robs judges of discretion, and if so, whether the court can direct legislative action.
The judge identified two competing jurisprudential schools. The applicants relied on “judicial activism” and “sociological jurisprudence,” the theory associated with Roscoe Pound that law should function as an instrument of “social engineering” and that judges should consider the social effects of their decisions. The respondents relied on “legal positivism,” which postulates that judges should interpret the law by reference to rules formally enacted within the legal system.
The court affirmed that the death penalty is constitutionally permissible in Nigeria, citing the Supreme Court’s decision in Kalu v. State (1998), and noted that “Nigerian courts have consistently upheld this position, reinforcing the legality of capital punishment within the constitutional framework.”
On the mandatory nature of sentencing, the court cited the Supreme Court’s decisions in Amoshima v. State and Tanko v. State, confirming that “so long as the statute creating the offence prescribes death as punishment and uses the word ‘shall’, then courts are required to impose the sentence once guilt is established.”
The court quoted the Court of Appeal’s decision in Amoshima: “‘Sentence of death’ is a punishment on its own and it does not admit of the dichotomy of ‘minimum’ and ‘maximum’ which allows for exercise of discretion. Where then is the discretion to impose anything less than the mandatory sentence of death? I do not see where a court can be said to derive such discretion.”
The court identified the doctrine of stare decisis as the principal barrier to judicial reform. Even if a lower court were persuaded by the sociological jurisprudence arguments, the Supreme Court’s existing precedents upholding mandatory sentencing are binding on all lower courts.
“Judicial discretion is the antithesis of stare decisis,” the court stated, quoting the Supreme Court’s decision in UBN Plc v. Astra Builders.
“The implication is that, so long as the doctrine of stare decisis remains part of our jurisprudence, and so long as the apex Court has yet to overrule itself in its earlier decisions in cases such as Tanko v. State and Amoshima v. State, any form of judicial activism attempted by a lower court to commute a death sentence to a lower punishment will ultimately amount to an exercise in futility,” the court concluded.
Global Comparative Analysis
Justice Segun-Bello conducted a comprehensive survey of how other jurisdictions have addressed the same question.
South Africa abolished capital punishment entirely following the Constitutional Court’s decision in S v. Makwanyane, which held that the death penalty violates constitutional rights to dignity and life.
Lesotho retains the death penalty but allows judicial discretion through mitigating factors, with death sentences imposed only where there are no extenuating circumstances.
The United States ruled in Furman v. Georgia (1972) that mandatory death penalty constituted cruel and unusual punishment, and currently requires courts in the 27 states that retain capital punishment to consider aggravating and mitigating factors, allowing for “individualized sentencing.”
India retains capital punishment but applies the “rarest of rare” doctrine from Bachan Singh v. State of Punjab, holding that death should only be imposed when life imprisonment is “unquestionably inadequate,” with judges required to weigh aggravating and mitigating factors.
China operates a “suspended death sentence” system where a two-year reprieve is pronounced simultaneously with the death sentence, and if the offender demonstrates good conduct during those two years, the sentence is automatically reduced to life imprisonment.
Europe has abolished the death penalty entirely through regional instruments including Protocol No. 6 and Protocol No. 13 to the European Convention on Human Rights.
The survey demonstrated that “many legal systems have evolved towards limiting its application or abolishing it entirely” and that “there is now a significant global shift towards the mitigation of the death penalty.”
The court identified existing constitutional provisions that provide some mechanism for commutation outside the judicial process.
Section 175 of the Constitution provides the Presidential prerogative of mercy. Section 212 provides the Governor’s prerogative of mercy. Through advisory councils on prerogative of mercy, the President or Governors may grant a pardon, substitute a lesser punishment, or commute a death sentence to life imprisonment.
Section 12(2)(c) of the Nigerian Correction Service Act confers on a Chief Judge the discretion to commute a death sentence to life imprisonment where a convict has spent 10 years on death row without execution and has exhausted all legal procedures for appeal.
However, the court noted that the Chief Judge’s power is only exercisable “if the length of detention of the inmate is brought to the notice of the Chief Judge by the Superintendent of the Correctional Centre on the day the sentence is to be carried out,” a narrow procedural trigger that limits the provision’s practical utility.
Justice Segun-Bello resolved the sole issue for determination “in the negative,” meaning the court found that mandatory death penalty provisions do indeed rob judges of discretion, but that the court cannot compel the legislature to amend the laws.
“This court totally agrees with the submissions of learned counsel for the 1st, 2nd, and 3rd respondents to the effect that review or amendments of instruments which prescribe the mandatory imposition of the death penalty cannot be compelled by the courts,” the judge stated.
“The legislature is not accountable to the courts in respect of their legislative functions,” she added.
But the judge issued a direct call to the political branches: “It therefore behooves the Executive and Legislative arms of Government to do the needful to unfetter the hands of the Courts, in order to allow the courts the carte blanche to exercise their judicial discretion to commute death sentences.”
“Until that is done, the hands of the courts in Nigeria will remain tied,” Justice Segun-Bello declared.
Relief 1 the declaration that mandatory death penalty provisions rob judges of discretion was granted as stated.
Reliefs 2 and 3 the orders directing the respondents to amend the laws failed, as the court held it cannot direct the legislature to legislate.
The judgment occupies an unusual position in Nigerian jurisprudence: it grants a declaration while declining to provide a remedy.
The court has formally declared that mandatory death penalty provisions rob judges of their discretion, acknowledging the injustice of a system where the judge who observes the trial, hears the evidence, and understands the circumstances cannot exercise judgment in sentencing. But having made that declaration, the court has stated it cannot itself fix the problem, leaving the remedy to the legislature and the executive.
For Bassey Samuel, the second applicant on death row, the judgment changes nothing immediately. He remains under sentence of death at the Okere Correctional Centre. The declaration that mandatory sentencing robs judges of discretion does not retroactively commute his sentence or those of any other death row inmate.
For the thousands of inmates on death row across Nigeria, the judgment confirms what their trial judges told them at sentencing: “my hands are tied.” The court has now formally declared that those hands should be untied, but only the National Assembly has the power to do it.
For the legislature, the judgment is a judicial plea disguised as a ruling. The court has stopped short of declaring mandatory death sentencing unconstitutional, which would be the kind of “judicial activism” it acknowledged would be overturned on appeal. Instead, it has declared the problem, identified the global trend away from mandatory sentencing, surveyed how other countries have addressed it, and left the solution to the lawmakers.
For the executive, the judgment highlights the existing constitutional mechanisms for commutation that are underutilised. The presidential and gubernatorial prerogatives of mercy, and the Chief Judge’s power to commute sentences after 10 years on death row, provide existing tools that could address individual cases even without legislative amendment.
The judgment leaves one fundamental question unanswered: if mandatory death sentencing robs judges of their constitutionally guaranteed judicial discretion, is it not itself unconstitutional?
Justice Segun-Bello acknowledged the tension but declined to resolve it, bound by the Supreme Court’s precedents that have consistently upheld mandatory sentencing. Only the Supreme Court, exercising horizontal stare decisis to overrule its own earlier decisions, can make the constitutional determination that mandatory death sentencing violates the principle of judicial independence or the right to a fair hearing.
Until that day, or until the National Assembly acts, the declaration stands alongside the constraint: judges’ hands are tied, and only the legislature can untie them.
Court Declares Mandatory Death Penalty Robs Judges Of Discretion In SentencingAs Justice Segun-Bello stated: “Until that is done, the hands of the courts in Nigeria will remain tied.”
The question is whether the legislature is listening.
The suit was argued by J.O. Nnani Esq. for the applicants, Habibatu U. Chime Esq. for the Federal Republic of Nigeria and the Attorney-General, and Peter Uche Udoku Esq. for the President of the Senate.
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