Grant and exercise  of the powers of prerogative of mecy of pardon by President Muhammadu Buhari

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President Muhammadu Buhari

Grant and exercise of the powers of prerogative of mecy of pardon by President Muhammadu Buhari

By Ibrahim Ahmad Kala

“The quality of mercy is not strained. It droppeth as the gentle rain from heaven, Upon the place beneath. It is twice  blessed. It blesseth him that gives, and him that takes.”

This was a speech given by Portia in William Shakespeare’s “The Merchant of Venice”, where a merchant in Venice named Antonio defaulted on a large loan provided by a Jewish money lender, Shylock. In the speech, Portia, disguised as a lawyer, begs Shylock to show mercy to Antonio.

The speech which extols the power of mercy, – (being an attribute of God Himself), as a quality valuable to the most powerful people in a society, is believed to have been written as far back in 16 century (between 1596 and 1599).

Such Portia’s speech is an indirect portrayal of fallibility of Criminal justice system in every society resulting into conviction of either innocent or who through their mere breach of civil rights or duties should never have been convicted of the offence. In some other cases, it is the punishment inflicted on the offender that may be perceived as unduly harsh.

Although, the usual manner of correcting this anomaly or error is through appeal to the higher authority or appellate Court, however, the appellate court system itself sometimes do not result in “just” verdict being merely an extension of judicial system. Since then, the use of the royal prerogative of mercy, Pardon or clemency outside the judicial realm was introduced and became handy for the Chief Executive or Head of State and government in most countries in the world such as United States of America, Ireland and Nigeria with the exception of China.

Here in Nigeria, the arm of government that has the constitutional task or responsibility of ensuring socio-economic well-being, security, law and order in the country is the Executive president.

The Executive president who has alots of responsibilities that cover the whole spectrum of nationhood is responsible for the grant of “Prerogative of Mercy” or Pardon/Reprieve for convicted fellows. Here the president has the ‘power’ to use his discretion to uphold or set aside an earlier crucial ruling or judgment by a court of justice.

The process may be initiated either by the executive president through the committee of prerogative of mercy constituted by him or his justice minister, or upon advises of the Head of the judiciary to the executive president on the exercise of such powers in respect of some deserving convicted fellows.

Thus, even when the courts had passed their verdicts on cases on individuals, and have found such individuals guilty, the president or the head of courts could make further recommendations that might affect the ultimate fate of the convicts. Based on such recommendations, the Executive president may look at the circumstances of the convicted fellow and either reduce the punishment to minimum or even pardon him completely depending on the nature and circumstances of the case.

The power of the President to grant pardon or prerogative of mercy has constitutional history in Nigeria that dated back to 1960, 1963, 1979 and 1999 Constitutions of the Federal Republic of Nigeria (as amended). Specifically, the grant of the powers is sanctions by section 175 of the 1999 Constitution but only in respect of Federal offences established by Act of the National Assembly such as Robbery and Fire Arms Act, NDLEA Act, Money Laundering Act, Advance Fee Fraud Act and etc. The exercise should not also be extended to cases where their is no conviction, or appeals pending in respect of such convicted fellows. See FRN v. Dingyadi (2018)LPELR – 46061 (CA).

While, those offences such as contained in the Penal or Criminal Code Laws of a State like theft or stealing, asorn, unlawful assembly, causing grevious harm etc all covered by state laws fall within the jurisdiction of the State Governor in the exercise of prerogative of Mercy. Thus, either the State Governor or the Chief Judge of a state can rightly exercise the grant of such power and pardon a deserving convicts.

However, some instances are evidenced where a sitting president in Nigeria granted pardon was in 1962, when the leader of the Action Group (AG), Chief Obafemi Awolowo, was tried and convicted for treasonable felonies, along with some of his high ranking lieutenants such as Alhaji Lateef Jakande. In 1966 Awolowo and members of his party applied for state pardon, and were granted. Much later Col. Emeka Odumegwu Ojukwu was dismissed from the Nigerian Army for leading the secession attempt, Gen. Yakubu Gowon, on the other hand, was stripped of his military rank by the regime of General Olusegun Obasanjo in 1976 for his alleged role in the Lt Col. BS Dimka-led coup attempt whereby General Murtala Mohammed was assassinated. He was treated as an accessory to the offence. It was President Shehu Shagari that granted them state pardon in 1982. Another state pardon was granted to General Olusegun Obasanjo and his former Deputy, the late Major General Shehu Yar’ Adua on September 30th 1998 but the gazette was backdated to July 14th 1998.

With this, Obasanjo was freed from his conviction for coup plotting against the regime of the late General Sani Abacha, and that gave him the impetus to contest and won the Presidential election in 1999. As good thing turn deserved another, weeks into his office as president, Obasanjo also applied presidential pardon on the dethroned Speaker of the House of Reps, Salisu Buhari, who was forced to resign after his certificate forgery scandal blew open. Again, President Goodluck Jonathan pardoned  his former boss, Chief Diepreye Alamieyeseigha who was convicted for misappropriation when he held sway as Governor of Bayelsa state.

Sometimes in 2020 at the peak of revaging Covid-19 pandemic, President Buhari was on record when he directed the Chief Justice of Nigeria to request state Chief Judges to identify and release deserving inmates in their respective states as part of effort to curtail the spread of Covid-19 in the country, and thereby dicongesting the prison and ensure speedy trial of court cases in respect of state offences.

The President called for special consideration to be paid to age of the convict, his/her health conditions, low risk offenders. Also those with no legal basis to remain in custody, and inmates convicted of minor offences or without option of fine. Ditto to inmates with less than 3 years to serve having served substantial terms of their offence that attract 5 years and above. This led to the setting off free many deserving inmate accros the country including one self styled, Gombe State borned right activist, Ibrahim Garba Wala (popularly known as IG Wala) from prison custody.

I had cause at that time to commend the President for such exercise at that crucial time of global crisis. I further argued in my humble opinion, that most of the inmates in our facilities across the country do not deserve to be there owing to the ineffective and inefficient institutions and misgovernance that ravage the system which open room for lust for wealth that facilitates commission of crime easily. This is apart from the glaring facts that our corpu juris is riddles with deformities particularly in the area of criminal trials leading to flagrant abuse of the constitutional safeguards of liberty and due process of law.

Instances abound. One outstanding case reference is  that of trial of Bode George and 3 others. Bode George was charged along with others for ‘contract splitting’ when they held sway at Nigerian Port Authority (NPA) before the Lagos State High court and convicted accordingly. Court of Appeal, (with due respect) unfortunately and incorrectly affirmed their conviction. However, at the Supreme court, their conviction and sentences were set aside on sole ground that “contract splitting” has never been criminalised by any penal legislation in Nigeria, but a mere ‘ministerial directive’. Sadly, at the time the apex court ruled in their favour, they had already completed serving their jail terms and removed from office as board members of the NPA.

Indeed, these abuses have lead to serious breaches of the fundamental rights of citizens, making it impossible for a large number of Nigerians otherwise entitled to bail, to be released from police and or prison custody, thereby worsening the condition of Nigeria’s appallingly overcrowded police and prison cells as observed several years ago by the Constitutional Rights Project (CRP) on the bail situation in Nigeria’s Judicial and Legal System.

President Muhammadu Buhari has again arguably demonstrated a good leadership stride yesterday when he granted pardon to Joshua Dariye, former governor of Plateau state, and Jolly Nyame, former Governor of Taraba state.

At a council of state meeting presided over by the president at the presidential villa in Abuja on Thursday the 14 of April, 2022, the former Governors were among 159 inmates pardoned.

They were granted pardons on the grounds of age and ill health. Another beneficiary of the pardon is Tajudeen Olanrewaju, former military general and minister under the Sani Abacha regime.

In 2018, 66-year-old Nyame, who was prosecuted by the Economic and Financial Crimes Commission (EFCC) for diverting public funds, was convicted and jailed for 14 years, after a trial that lasted 11 years.

The EFCC had accused him of diverting N1.64 billion during his tenure as governor of Taraba between 1999 and 2007. His sentence was later reduced to 12 years by the supreme court in February 2020.

Dariye, 64, was a Governor between 1999 and 2007 former senator representing Plateau central district, was also sentenced to 14 years in prison in 2018 for N1.126 billion fraud. But a court of appeal reduced his term by four years. The verdict was also affirmed by the supreme court.

However, the council rejected a request for pardon for Francis Atuche, former managing director of Bank PHB, who was sentenced to 12 years’ imprisonment for fraud.

I am comfortably at home with the Council’s standpoint on the rejection of Mr. Atuche’s request for the pardon considering the no “health or age” reasons given, the amount involved and the likelihood of setting a bad precedent in respect of the private sector corruption in the country.

While it is the Constitutional duty of the president or the committee he constituted to grant pardon and ensure decongestion of custodial centres, care should be taken in discharging this solemn statutory duty against the backdrop of rising incidents of insecurity and concerns by the public that criminals are released into the society during prison decongestion exercises, and immediately they get outside, commit the same offence and are re-arrested.

Therefore, those people with the orientation of perpetually living in crime should not be released to cause harm to the Nigerian society.

Ibrahim Ahmad Kala, Grant, exerrcise,  prerogative of mecy, pardon, President Muhammadu Buhari
Kala Esq. (LL.M) is the Head of Litigation Department, Court of Appeal Gombe division.

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