Does the Law Support the Grant of Posthumous Pardon in Nigeria? – Chidera Nwokeke

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President Buhari

On Thursday, 9th April, 2020, the mass media was awash with the news of President Muhammadu Buhari granting presidential pardon to late Prof. Ambrose Ali, late Chief Anthony Enahoro, ex-Lieutenant Colonel Moses Effiong, Major EJ Olanrewaju, and Ajayi Olusola Babalola, all of whom were ex-convicts.

According to the Minister of Interior, Rauf Aregbesola, the President has also approved the grant of amnesty to 2,600 inmates across various custodial centres in the country. The Presidential pardon became necessary as a measure to curtail the spread of the Corona Virus pandemic, especially as the World Health Organization has identified that some categories of people are more vulnerable to the pandemic than the others and especially considering that Nigerian correctional centers are not only congested but are  also known to house many of these vulnerable persons.

THE LAW ON THE GRANT OF PARDON

Pardon is the act of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the chief executive of a government. The President has the sole power to issue pardon for federal offences and State Governors have the power to issue pardons for state crimes.  In the case of FALAE VS OBASANJO (1999) 4 NWLR (PT 599) 476, the court held:

“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 privileges forfeited on account of the offence. The effect of a pardon is to make an offender a new man (novus homo), to acquit him of all corporate penalties and forfeitures annexed to the offence pardoned.

Pardon is also termed executive pardon or free pardon. A pardon is in no sense equivalent to acquittal. It contains no notion that the man to whom the pardon is extended never did in fact commit the crime, but merely from the date of the pardon gives him a new credit and capacity.

The power to pardon is clearly spelt out in section 175(1)(a) and 212(1)(a) of the constitution of the Federal Republic of Nigeria, 1999 (as amended).

Section 175(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides:

(1) The President may-

(a) 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;

(b) Grant to any person a respite, either for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such an offence;

(c) Substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or

(d) Remit the whole or any part of any punishment imposed on that person for such an offence or of any penalty or forfeiture otherwise due to the State on account of such an offence.

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(2) The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State.

(3) The President, acting in accordance with the advice of the Council of State, may exercise his powers under subsection (1) of this section in relation to persons concerned with offences against the army, naval or air-force law or convicted or sentenced by a court-martial.

The above section contains two restrictions:

  1. The President can only grant pardon to convicted persons of any offence created by an Act of the National Assembly.
  2. The president cannot exercise this power without consultation with Council of State which is established under Section 153 (1) (b) of the 1999 CFRN.

The word used in Section 175(2) of the Constitution is “shall” and from the manner of its usage, it connotes compulsion. It is thus mandatory for the President to consult with Council of State on Prerogative of Mercy before exercising the power of pardon. The essence of the requirement for consultation is to guide and guard the exercise of the power and save it from arbitrariness, impunity, abuse and political aggrandizement. It is to prevent the power from being turned into an avenue for dispensing political favors and to ensure that it is exercised only in deserving cases.

In OBIDIKE VS STATE (2001) 17 NWLR (PT 743) 601 and SOLOLA VS THE STATE (2005) ALL NLR 443 the Supreme Court stated that a person who has a pending appeal against his conviction for murder and sentence to death cannot be pardoned by the President of Nigeria or Governor of a State under the provisions of Sections 175 and 212 of the 1999 Constitution (as amended) until the appeal has been heard and determined. In other words, that there can be no pardon until it is certain that the accused person has been finally convicted.

WHO CAN BENEFIT FROM GRANT OF PARDON?

The President may –grant any person concerned with or convicted of any offence created by an Act of National Assembly a pardon, either free or subject to lawful conditions;”

Prior before now,  the Court of Appeal in a three man panel in the case of FRN v. ALKALI & ANOR (2018) LPELR-45237(CA) held that  “any person concerned with” as stated in Section 212 (1) (a)  of 1999 Constitution can be interpreted to include persons that have not been convicted but still undergoing trial. However, MUHAMMED LAWAL SHUAIBU, J.C.A. in his dissenting judgment disagreed with the Leading judgment:

Though in US a person standing trial can be pardoned, but in Nigeria the position is not the same. He held: “prerogative of mercy as a legal concept cannot in my respectful view be set in motion unless and until there is a sentence of Court on a convicted person(s) which the mercy will act as a vehicle of mitigating or waiving the punishment. Where as in the instant case, the respondents’ trial was on going, there cannot be a pardon granted to the respondents by the Governor of Sokoto State pursuant to Section 212 of the 1999 Constitution.”

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Going further, the Court of Appeal in a five man panel in the case of FRN v. ACHIDA & ANOR (2018) LPELR-CA/S/178C/2017 while interpreting Section 212 (1) of the 1999 Constitution as amended held:

The fundamental question before this Court is what is the meaning of the phrase “concern with or convicted of any offence” in Section 212 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999; whether it includes the Respondent who has not been convicted of any offence but was standing trial for an allegation of commission of an offence under the Penal Code Law of Sokoto State. There must be guilt for the exercise of pardon to be activated, taking into consideration the presumption of innocence in Section 36 of the 1999 Constitution. It therefore follows that the power of a Governor to grant pardon, is only exercisable after the person to be pardoned has been convicted and/or has exhausted his right of Appeal against his conviction. See C.O.P. V. ALI (2003) FWLR (Part 157) 1164 at 1180 (CA).” Per BAYERO, J.C.A. (Pp. 102-103, Paras. C-C).

Thus, to contemplate the grant of pardon to an offender who is yet to undergo trial or to fully pass through the justice system to its full extent and be pronounced guilty of the crime for which he is standing trial yet presumed innocent, is to unnecessarily short-circuit the criminal process of trial anticipated by law.  There can be no pardon until it is certain that the accused person has been finally convicted.- Solola vs The State (Supra). Therefore, it is only people who have been convicted by a Court and are still  that can be granted pardon either freely of subject to lawful conditions.

CAN PARDON BE GRANTED POSTHUMOUSLY?

According to Collins dictionary, Posthumous is used to describe something that happened after a person’s death. It relates to something they did before they died.

In answering the above question, it is pertinent to state the effect of pardon. The effect of a pardon is to make an offender a new man novus homo), to acquit him of all corporate penalties and forfeitures annexed to the offence pardoned. Thus, in Falae v Obasanjo,(Supra) the Court of Appeal also held that a pardon cleared the person pardoned of both the crime and the infamy.

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 Considering the provision of Section 175(1)(a) of 1999 CFRN which provides: The President may –grant any person concerned with or convicted of any offence created by an Act of National Assembly a pardon, either free or subject to lawful conditions;

One of the keywords in the above section is the word “Person”. The Court in plethora of cases has given judicial blessing to the meaning of a person. The Court in the case of UDEOGARANYA V. ADEYI (2010) LPELR CA/I/M.115/2003 held: It is beyond dispute that the word “person” when used in legal practice, such as in a legislation or statute connotes both a “natural person”, that is to say, a “human being” and an “artificial person” such as corporation sole or public bodies corporate or incorporates.

Deducing from the above definition of person and provision of Section 175(1)(a) of the constitution, it is barefaced that the legislators never contemplated corporate bodies but only natural person.  Going further, the Court in the case of FAWEHINMI V N.B.A. (NO 2) (1989) 2 NWLR (PT.105) PG 558 AT 627 Para. H in determining who is a natural person? Held: It is a human person who has life and blood in him or her whether a citizen of one State or another given protection by law and endowed with human qualities. Per Obaseki JSC.

Can it be said that those that the president granted posthumous pardon fall into the definition of any person as contemplated by Section 175(1) of 1999 CFRN? I answer in the negative and strongly contend that these persons were not contemplated because as at the time of granting them the pardon by the president, they were not natural persons who had blood and life in them. It is not doubt that these persons were convicted by the court, which is a condition precedent before pardon can be granted. Because, you cannot be granting a pardon to a man who is still presumed to be innocent. Therefore, since, they are not natural persons, they cannot be granted pardon.

 In conclusion, the president in his desire to curb the spread of Covid 19 has exercised his constitutional power of granting pardon. However, the goal of the pardon in this period is to help decongest the prison and curb the spread of Covid 19 in our correctional centres.  How will granting of pardon to dead people actualize this objective? It is pertinent to state that only those that are already convicted by the court can and are still alive can be granted pardon. Therefore, the grant of posthumous pardon by the president is unconstitutional.

Chidera Nwokeke is a student of the Nigerian Law School, Lagos Campus. Nwokekechidera@gmail.com or 08120945787.

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