Presidential Pardon vs Presidential Impunity (Part 1)

Introduction 

The recent presidential pardon made by President Muhammadu Buhari, in favour of two high profile politically exposed convicts in the persons of former Governors Joshua Dariye of Plateau State and Jolly Nyame of Taraba State, stirred the hornet’s nest and ruffled political and moral feathers across Nigeria. Unexpectedly, this is due to the fact that both men were convicted for offences allegedly committed between November 2000 and May 2007, after full trials that ran for many years. Most Nigerians believe that both men, having been properly convicted after full trials using State resources from taxpayers’ money, ought to have been made to serve their full punishment in accordance with our criminal justice and penal systems of justice delivery. They (including my humble self), believe that the presidential pardon amounted to a presidential endorsement of criminality and stealing of our public funds by persons entrusted with managing such funds, for the good of their people who voted them into office.

Crimes are vices that should not be tolerated in any society. They are offences against the State, and are punishable under the law. The essence of punishing people convicted of crimes is to serve the criminal just dessert, make restitution to the victims and deter other people from engaging in criminal activities, amongst others.

Sometimes, the President and Governor of a State may decide to show the milk of human kindness to people already found guilty of crimes. This practice is, respectively, sanctioned by Sections 175 and 212 of the Constitution of the Federal Republic of Nigeria, 1999, as altered. This practice is even Biblical. For example, Pontius Pilate wanted to grant pardon to Jesus Christ. But, when the mob protested, he released Barnabas instead of Jesus (Mark 15:6). Pardon is an unusual show of kindness, to people whom the State has already condemned for certain ignoble acts they committed.

Pardon is a loud statement. The meaning of the statement, is determined by the context and circumstances of the act. For example, in a State where there is a high record of kidnapping and cyber fraud, showing mercy to people convicted of kidnapping and cyber fraud could be construed as State connivance, or an impetus for offenders to commit more of such crimes. Nigeria, for example, is rated the 149th out of 180 most corrupt countries in the world, and the second most corrupt country in West Africa by Transparency International (TI), under its anti-Corruption Perception Index. Granting pardon to people convicted of corrupt practices, whether still serving or having served, may be construed as a tacit approval of such corrupt practices. This becomes more worrisome, under a government which made fighting corruption one of its tripodal mantras.

Today, we shall commence our discourse on this vexed issue that has enlisted public interest, outrage, hoopla and ruckus.

Meaning of Presidential Pardon

A pardon is an executive order, granting clemency for a conviction. It may be granted “at any time” after the commission of the crime. 

In strict constitutional jurisprudence, the exercise of pardon power amounts to an interference by the executive with the exercise of judicial power. This is in breach of the hallowed doctrine of separation of powers, ably espoused in 1748 by the great French Philosopher, Baron de Montesquieu. However, such interference is permitted, where it is authorised by this same Constitution that provides for the doctrine of separation of powers. 

This right of pardon is granted to the Governor and the President, respectively, under Sections 212(1) and 175(1) and (2) of the Constitution, and is legally available to all classes of convicts in Nigeria. It can be obtained by a convict who applies to a Governor or the President, as the case may be, for grant of the prerogative of mercy or pardon in his favour, either personally or through a Solicitor, or even through the prison authorities where he or she is incarcerated and is serving term of imprisonment.

For the purpose of exercising this power, Section 153(1)(b) of the Constitution establishes the “Council of State,” which advises the President in the exercise of his prerogative of mercy. The Council, as a Government agency, is composed of high-heeled and distinguished Nigerians who are believed to be the have full complement of the country’s ethos.

Thus, although the President’s powers in this area are not subject to the strict approval of the Council of State, he cannot act unilaterally, whimsically, capriciously and arbitrarily. The usage of the word ‘shall’ in the phrase, “The President’s powers under paragraph (1) of this section shall be utilised by him after consultation with the Council of State”, demonstrates this. The exact legal force that the advice of the Council of State bears, i.e., whether it should be taken as limiting the President’s powers of pardon, or whether it is merely a courteous procedure to abide by, is a thorny issue amongst analysts. The President’s obligatory gazetting in the Official Public Notice of the Government of the Federation concludes the pardoning process. The President, including the Governor, by extant constitutional provisions, have no constraints or hurdles whatsoever on whom they can grant pardon to.

State pardon is therefore a discretionary power that must be utilised with utmost caution  and must accord with the law. It must never be used as a tool of political patronage, nepotic purposes, monetary benefits, or for self-aggrandisement. It must be used in a fair and impartial manner, free of prejudices, bias and public disapproval. It must be strictly in accordance with the best interest of the nation, and the letter and spirit of the Constitution and the code of conduct applicable to all public officers in Nigeria.

The Legal Consequences of the Grant of a Presidential Pardon

The Legal effect of presidential pardon was expatiated upon in EX-PARTE GARLAND 71 U.S. 333 (1866) thus:

“The inquiry arises as to the effect of a pardon, and on this point the authorities concur. A pardon in the eye of the law, cleanses the offender and makes him as innocent as if he had never committed the offence”. Such a convict is like Naaman the leper, who dipped himself in the River Jordan and became cleansed of his leprosy. In FALAE v OBASANJO (1999) 3 LLER 1(CA), the Court of Appeal held that a pardon relieves the person of all sins. Musdapher, JCA (as he then was) said:

“In my view, under Nigerian law there is no distinction between “pardon” and “a full pardon.” A pardon is an act of grace by the appropriate authority, which mitigates or obliterates the punishment the law demands for the offence and restores the rights and the privileges on account of the offence. The effect of a pardon is to make the offender a new man, or novus homo, to acquit him of all corporal penalties and forfeitures annexed to the offence pardoned”.

In the same vein, the court in OKONGWU v STATE (1986) 5 NWLR (Pt. 44) 721, held that a free pardon had the effect of erasing “all suffering, consequences, and punishments whatsoever that the said conviction may ensure, but not to wipe out the conviction itself” from the pardonee. Thus, even where the fines have been vacated, the conviction will forever remain on the record of the court. Thus, even if a person has been pardoned, he can still legally appeal his conviction. 

This was why in OKONGWU v STATE (1986) 5 NWLR (Pt. 44) 721, it was held that a free pardon has the effect of blotting out “all suffering, consequences, and punishments whatsoever that the said conviction may ensure, but not to wipe out the conviction itself”.

The 1999 Constitution in Sections 175 and 212, have made provisions for the grant of pardon, respite or clemency to any person, either free, or subject to lawful conditions as may be determined by the President or the Governor, respectively. Such pardon could be for an indefinite or specified period. They could substitute a lesser form of punishment or remit the whole or any part of such punishment, or substitute a less severe form of punishment. While under Section 175 (2), the President shall carry out such an exercise after consultation with the Council of State, the State Governor shall carry his out “after consultation with such advisory council of the State on prerogative of mercy as may be established by the law of the State”. 

There is the more worrisome legal conundrum in the entire presidential pardon, as it pertains to the two Governors. This is whether the President could have legally granted pardon to former Governors Joshua Dariye and Jolly Nyame of Plateau and Taraba States respectively, having regard to the fact that both men were convicted for offences allegedly committed between November 2000 and May 2007. The offences under which they were tried and convicted fall under State laws, which took place after the promulgation of the 1999 Constitution during which time they were Governors. Specifically, they were tried and convicted under Sections 115,119 and 309 of the Penal Code Act, Cap 532, LFN, 1990, obviously an existing State law within the meaning, import and true purport of Sections 315(1)(b) and 318 of the 1999 Constitution. This Act which became effective as a State law, is applicable to the FCT and the Northern States. This Penal Code Act, not being a Federal legislation of the NASS, became an existing State law deemed duly enacted by the 19 Northern States by virtue of Section 315(1)(b) of the Constitution. It becomes clear therefore, that only the Governors of Plateau and Taraba State could have legally and rightly granted pardon to Dariye and Nyame, invoking Section 212 of the Constitution; and not Mr President under Section 175 of the Constitution. 

The doctrine of separation of powers ably propounded in 1748 by Baron de Montesquieu and which is accorded constitutional imprimatur in Sections 4, 5 and 6 of the 1999 Constitution operate here. Should anyone challenge their pardon, an interesting constitutional issue would have been thrown up for constitutional pundits and legal analysts like yours sincerely. Let us now look at the moral implications.

The Moral Implications of the Presidential Pardon

The moral implications of granting pardon to people, may send different messages and signals to different people. The messages could either be seen as genuine forgiveness, connivance, condonation, conspiracy, or impetus, etc. 

There is this aphorism often credited to Benjamin Franklin, to the effect that “to err is human, to forgive is divine and to persist is devilish”. This saying is true. It is Biblical that all have sinned and come short of the glory of God. Jesus also admonished that if ‘we’ say that ‘we’ have no sin, ‘we’ make Him (Christ) a liar and the truth is not in us. In the case of a woman caught in the act of adultery brought to Jesus Christ for just determination, Christ demonstrated forgiveness by challenging the mob to first cast a stone at the woman if they had no sin. Shortly after the mob departed, Jesus forgave the woman and commanded her not to go back to her sinful lifestyle. Christ gave this woman who was about to be stoned to death, a second chance to mend her ways. (To be continued).

THOUGHT FOR THE WEEK

“Justice is itself the great standing policy of civil society; and any eminent departure from it, under any circumstances, lies under the suspicion of being no policy at all.” (Edmund Burke)