Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, E/CN.4/2006/53/Add.4, January 7, 2006, Mission to Nigeria
23. In December 2005 the Katsina Sharia Court acquitted two other men charged with the capital offence of sodomy, because there were no witnesses. They had nevertheless spent six months in prison on remand which the judge reportedly said should remind them “to be of firm character and desist from any form of immorality”.
24. Regardless of the circumstances of the individual case, however, the incident serves to highlight several major problems. They are the use of stoning to death as a punishment, and the prescription of the death penalty for private sexual conduct.
III. THE MAJOR PROBLEMS
A. The right to life and the death penalty
26. Several aspects of the death penalty in Nigeria are of particular concern: (a) widespread procedural irregularities; (b) conditions on death row; and (c) the operation of sharia law, especially in relation to adultery and sodomy.
(c) Sharia law in Nigeria
35. (…) Firstly, characterizing adultery and sodomy as capital offences leading to death by stoning is contrary to applicable Nigerian and international law. Neither can be considered to be one of the most serious crimes for which the death penalty may be prescribed. Secondly, even if the sentence is never carried out, the mere possibility that it can threaten the accused for years until overturned or commuted constitutes a form of cruel, inhuman or degrading treatment or punishment. Assurances that an offence which continues to be recognized by the law will never be applied in practice are neither justified nor convincing. The very existence of such laws invites abuse by individuals. This is all the more so in a context in which sharia vigilante groups have been formed with strong Government support. The maintenance of such laws on the books is an invitation to arbitrariness and in the case of zina to a campaign of persecution of women.
37. In relation to sodomy, the imposition of the death sentence for a private sexual practice is clearly incompatible with Nigeria’s international obligations. Moral sanction is a matter for the consciences of individuals and the beliefs of religious groups. Criminal sanctions are an entirely different matter and when the threat of execution is involved the State cannot stand idly by and permit the two types of sanctions to be conflated in a way that violates international law.
104. The death penalty
(a) The Federal Government should reiterate that the imposition of the death penalty for offences such as adultery and sodomy is unconstitutional. It should commit to undertaking a constitutional challenge at the earliest opportunity;
link to the full text of the Report: http://www.un.org/Docs/journal/asp/ws.asp?m=E/CN.4/2006/53/Add.4