Governmental Power to Pardon, Who can benefit?; Examining the joint provisions of SS. 175(1) and 212(1) of the 1999 Constitution By John Ovundah

INTRODUCTION

The choice or discretion to prosecute an offender lies solely on the Attorney General and it lies in all cases irrespective of the grave nature of the offense-ss.211(3) and 174 of the Constitution (Hereinafter CFRN) and Fawehinmi v Akilu (1987) 4 NWLR pt.67, p.797 SC. However, the law on the other side of the coin allows the government to pardon a person for a crime he has committed, it is note worthy that whilst, the Former deals with pre-trial choices, the latter deals with (post) trial issues, and it is generally called the Prerogative of Mercy.

It is paramount to state at the outset that prerogative of mercy is too wide a term for it includes amnesty, condonation, pardon and even nolle proseque each with its attendant effect, needless therefore to state that this article does not intend to discuss prerogative of mercy in general, it shall discuss pardon only being one of the species of prerogative of mercy.

In Falae v Obasanjo ( no 2) (1999) 4 NWLR pt. 599, pardon was said to be an act of grace by the appropriate authority exempting a person from punishment for the crime he has committed. Put it in another way, pardon is an official decision not to punish somebody for a crime. Generally an act of grace. Therefore it needs not be legally and/or morally justified; it is purely a political contrivance FRN v ALKALI & ANOR (2018) LPELR -45237 (CA).

In Nigeria such power of pardon is exercisable only by the president and governor(as regards the executive) and the power is spelt out in s.175(1)(a) and 212(1)(a) CFRN.

This article shall further narrow itself to attempting just two fundamental posers. viz:

  1. Whether or not a person who is standing trial or has not been convicted can be pardoned?
  2. Whether a not a convict whose appeal is pending before an appellate court be pardoned?

We would attempt them ad seriatim;

  1. Whether or not a person who is standing trial or has not been convicted can be pardoned?

S.175(1)(a) CFRN which is in parimateria with s.212 (1)(a) thereof with respect to the powers of governors provides thus:

 

s.175(1) The president may

  • Grant any person concerned with or convicted of any offence created by an Act of the National Assembly a pardon, either free or subject to lawful conditions….

Reading the above section  carefully, the section obviously contemplates two category of persons that can be pardoned. They are:

  1. “any person concerned with” or
  2. “convicted of any offence.”

As regards the first limb or set of people contemplated here, agruments have arisen that these set of people should be interpreted to include persons that have not been convicted or acquitted but still undergoing trial and in support of this claim, judicial decision exist to back up these assertions and most recent of all being FRN v Akali (Supra).

—–The accused persons in this case were pardoned by Gov Aminu Tambuwal of Sokoto, while their trial was ongoing in court and upon an application for discharge based on the pardon, the trial court discharged the accused. Aggrieved, the FG appealled the decision, the Court of Appeal on the majority of 2:1 affirmed the discharge of the accused persons on the ground that even a person who is standing trial can be pardoned, it further affirmed that conviction is not a prerequisite for pardon, the court relied on the US supreme Court decision in EXPARTE A. H. GARLAND (1865) U. S. SUPREME COURT REPORTS, 18 LAWYERS Edition, Wallace 3 – 6 at Page 300, the court was also of the view that the use of the word “Or” in the subsections shows a disjunctive interpretation for the two set of people stated in s.212(1)(a) CFRN.—

However, the same court in FRN v DINGYADI (2018) LPELR-46061(CA) the court was of the view that You can’t pardon a person who is deemed to be innocent” in other words, since the law asserts a person innocent until proven guilty, you cannot therefore pardon him, for a crime he hasn’t been convicted of. The clash has therefore given rise to the question of which appeal court decision is a better Law, especially considering the phrase as stated in s.212(1)(a) CFRN…any person concerned with…

  1. Whether or not a convict whose appeal is pending before an appellate court be pardoned?

While there is no debate as to the fact that a person convicted can be pardoned, there are still diverse views as to whether a person whose appeal is pending can be pardoned. In Obidike v. State (2001) 17 NWLR (743) 601, the accused/appellant was granted pardon while his case was pending before the Court of Appeal. The Court of Appeal disregarded the pardon and ordered that the appellant be re-arrested and prosecuted. The court was of the view that the pardon was invalid since it was granted while appeal was pending.

Furthermore in Okongwu v State (1986) 5 NWLR pt. 44,741, where the Apex court per OGUNDARE, JSC (as he then was) held that; “pardon is usually granted where a convict has exhausted all his legal rights of Appeal or has no intention of exercising such right…”

However, in the recent decision of the Court of Appeal in ADEOLA v. STATE (2017) LPELR-42327(CA), it was held that pardon “…. wipes out the conviction and sentence and in the event of a pending appeal the pardon renders the appeal academic and liable to be struck out…”

From the totality of the authorities on this point, the position appears to be that a person who has a pending appeal cannot benefit from executive pardon.

My Opinion on the Above

On the first, The somewhat confusion springs from the very loose and wide interpretation given to the phrase Any person concerned with, as it is assumed to cover persons that have not been convicted but still undergoing trial, I however find that this is not the case and also not the set of people referred to. Its my humble submission that the said phrase refers to those who have been convicted, but awaiting/are on appeal.

My reasoning for this is backed by the purpose of the section and not just the phrase in the sub section. It is worthy of note that the whole section seems to suggest that the person must have been convicted and has a form of  punishment “hanging over his head”, hence the need for pardon.

It’s also instructive to note that via s.36(5) CFRN every person is presumed innocent under the law until proven guilty, and this is to the end that he needs not prove his innocence. In light of this, I am of the view that constitutional provisions be interpreted holistically -Action Congress v INEC All FWLR(pt.378) 1037, hence the phrase “…any person concerned with…” as used in s.212(1)(a) CFRN should be interpreted consistently with the presumption of innocence, to the effect that s.36(5) CFRN constricts the phrase to persons who has been convicted for an offence, hence a narrow interpretation should be given to the provisions of the Constitution where it will carry out the object and purpose of the Constitution- SKYE Bank plc v Iwu (2017) LPELR-42595.

It would therefore, be an unnecessary fast tracking of the law to allow Pardon to a person who is innocent (since he hasn’t been proven guilty and still on trial). A person standing trial cannot be pardoned as it is an inherent abuse of his right to fair hearing. In my humble opinion, it amounts to a trial, conviction and pardon by the government of the day.

It is essentially note worthy, that an indictment of any source, whether a white paper, Administrative tribunal or investigation is not a conviction and does not suffice as one in respect to the explanation above, this is because only a competent court of jurisdiction can convict a person, see Amaechi v INEC & ors (2008) LPELR-446.

On the second question;

I readily pitch my tent with the decision of the court Adeola v State (Supra) which held that a person whose appeal is pending can be pardon, and that the appeal becomes useless or no more than an academic exercise. I am of the opinion that since Such an accused has been convicted he has the punishment of the offence resting upon his neck, save he uses the appeal process available to him, hence, while on appeal the fundamental right of  innocent until proven guilty cannot apply as he has been proven guilty and he seeks to squash the conviction.

Conclusion.

1) A person standing trial cannot be pardoned as it is an inherent abuse of the right to fair hearing as explained above.

2) Hence I pitch my tent with the court that a convict whose appeal is pending can be pardoned.

 

 

 

 

JOHN, OVUNDAH WISDOM; is a 300 level law student and writes from the Faculty of Law, University of Nigeria Nsukka, Enugu State, Nigeria.

ovundahjohn07@gmail.com or +2348164448909

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