Senior Lawyer: Falana is Wrong on Chief Judges’ Powers to Release Prisoners

Tobi Soniyi in Lagos
Chief Sebastine Hon (SAN) has faulted the position taken by a Lagos lawyer, Femi Falana (SAN), that state chief judges and the Chief Justice of Nigeria (CJN) have powers to pardon criminals.

Hon had earlier issued a statement where he said under the 1999 Constitution, only the president and state governors have the power to pardon criminals in appropriate circumstances.

He therefore declared as illegal and unconstitutional the actions of state chief judges in visiting prisons for the purpose of releasing awaiting trial inmates.
But in a reaction to Hon’s statement, Falana issued a statement wherein he claimed that the chief judges have the powers to release criminals.

Swiftly, Hon issued a counter-statement wherein he said: ”My attention has been drawn to a statement credited to my learned friend, Falana, wherein he stated, in rejoinder to my earlier position, that chief judges have powers to order the release of criminals from prison detention.
“I ordinarily would have kept quiet; but I think the good people of Nigeria need to know better. In other words, Falana’s reasons for taking that position are, with respect, not known to the law. The position itself is completely wrong.”

He also rejected the insinuation by Falana that his statement was targeted at the recent prison releases made by the respected Chief Judge of Lagos State.
“How wrong he is for nearly all the states chief judges have at one time or the other undertaken this exercise. I do not entertain sentiments when interpreting the Nigerian constitution,” he declared.

Hon said it was shocking for Falana, after admitting that he (Hon) had relied on sections 35(4), 175 and 212 of the constitution, to say ‘it is curious to note that in the statement credited to Hon,  no reference was made to the relevant laws on the subject matter.’

Hon then queried: “What in Falana’s judgment was more relevant than the constitution of Nigeria-the fons et origo (source) of all laws?
“Rather, he (Falana) is the person who is running away from the constitution and taking refuge under laws that are lower to the constitution!”

He also asked if Falana was misquoted when he said he stated that ‘no chief judge has ever granted pardon to convicts or criminal suspects awaiting trial but who are remanded in prison custody in the country.’ Hon therefore asked if Falana was misquoted because the beneficiaries of prison amnesties carried out by successive chief judges in Nigeria were largely prison detainees awaiting trial.

The senior advocate also declared as shocking Falana’s submission that since the Prisons Act, 2004 and the Criminal Justice (Release from Custody) (Special Provisions) Act fall under Item 8 of the Exclusive Legislative List of the Constitution, “they were constitutional!”

 He said:  “This is my first time of hearing this constitutional theory! Listing of legislative items under the Legislative Lists is only intended to draw the line, in a federal setup like ours, between what the federal government on one hand and the federating states on the other hand which have competence to legislate on and is not a licence to enact unconstitutional legislation.
“The constitution cannot under section 1(3) be providing that an Act or a law will be unconstitutional if it conflicts with the constitution and at the same time, under the Legislative Lists, be saying the opposite of this.

“And before we forget, it was the same Falana who a couple of weeks ago stated that the provisions of the EFCC Act which required confirmation by the Senate of the appointment of the EFCC chairman were unconstitutional. Was the EFCC Act not made pursuant to the powers granted by the constitution in the Legislative List?
“For the avoidance of any doubt, section 35(4) of the 1999 Constitution has covered the field on what should be done to any person accused of an offence, and there is no room for any administrative action by the judiciary.

“Only judicial actions can lead to the release of detained persons, hence any administrative action, apart from the one in sections 175 and 212, will be directly in conflict with the said section 35(4).
“Also, sections 175 and 212 of the constitution have advisedly used the phrase ‘a person concerned with or convicted of an offence’.

“The phrase ‘concerned with an offence’ is so wide that it has entirely and completely covered the situations contemplated by both the Prisons Act and the Criminal Justice (Release from Custody) (Special Provisions) Act. The constitution, having covered the field, these two Acts are null and void, for attempting to provide for the same release from custody, yet by the administrative action of the judiciary.”
The author of many books on the constitution said the arguments raised by Falana were advanced in the United States case of Schick vs. Reed, 419 United States 256 (1974) at 266.