By Onikepo Braithwaite
“Justice is a three-way traffic – for the Appellant accused of a heinous crime of murder….for the victim, the murdered man…..and finally, for the society at large” – Godwin Josiah v The State 1985 1 NWLR Part 1 Page 125 per Chukwudifu Akunne Oputa, JSC
My piece last week, “Pardon: A Coat of Many Colours” elicited so many responses, that I am constrained to say more about this controversial topic of the grant of Pardons. The public believes that the pardons granted by President Bola Tinubu, GCFR, don’t meet the standard set by Oputa, JSC in Godwin Josiah v The State (Supra), as they serve the interest of only the convicts, and not the victims or society at large. A perusal of the list however, appears to support this assertion only in possibly less than 10% of the pardons, some of which I shall discuss below, and not majority of them.
Guidelines for the Grant of the Prerogative of Mercy
Before I go into some of cases that stand out, three of which I mentioned last week, it is apposite for me to discuss the Working Guidelines of the Ekiti State Advisory Council on the Prerogative of Mercy drawn by Ekiti State Ministry of Justice during the tenure of Olawale Fapohunda, SAN as Attorney-General, on the general principles guiding the exercise of the prerogative of mercy by the Governor, under the hand of immediate past Governor, Kayode Fayemi (Guidelines) – see Sections 175 & 212 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution).
Paragraph 4.1 of the Guidelines lists the approved sources of application for the consideration for clemency: including the Nigeria Correctional Services and the Courts. Paragraph 4.4 thereof then provides for the “Eligibility for recommendation for clemency by Council (a) Convicts for capital offences (murder, armed robbery etc) who have spent fifteen years in prison custody (b) Convicts for felonies attracting life imprisonment who have spent 10 years in prison custody (c) Convicts for other offences who have s p e n t one-quarter of the imposed prison term in the Correctional Centre (d) Ex-Convicts with proof of rehabilitation, reformation and reintegration into society, after release or completion of term in the Correctional Centre”.
Paragraph 5.1 of the Guidelines allow a derogation from the Guidelines by the Council in certain circumstances, meaning that even if they do not fit into the Paragraph 4.4 criteria, they may still qualify under the following: “(a) Young convicts between ages 18 and 21 years (b) Elderly convicts (non-habitual offenders) above 70 years (c) Convicts with terminal illness (d) Convicts with contagious and infectious diseases (e) Convicts for offences that are subject to a specific government policy in force”.
The Guidelines allow the Council to cancel, inter alia, an application that is found to be fraudulent. In one of the reactions to my aforementioned piece of last week, a State Attorney-General told me of an application from a Correctional Centre for the pardon of a convict who was said to have terminal cancer (see Paragraph 5.1(c) of the Guidelines). When the AG decided to contact the State Teaching Hospital to verify the authenticity of the medical report submitted by the Correctional Facility in support of the application for pardon, the Hospital wrote back to say it was a forgery that wasn’t issued by their establishment. This leads to the irresistible conclusion that, the Correctional Facilities sometimes appear to ‘connive’ with convicts, and submit applications for pardons for those who are not qualified for clemency. Surely, by the time an inmate has terminal cancer, it would be apparent that the convict/patient is critically ill, and it would be the Correctional Facility that would take such individual to the hospital for treatment. This could only mean that the Correctional Facility used false pretences to secure clemency for an undeserving convict, by hatching a joint plot for the convict to feign terminal sickness.
It also seems that attending National Open University, has also become a blanket reason for granting pardons to perpetrators of violent crimes in Nigeria. While in other countries getting an education while incarcerated may be a positive sign of personal growth and rehabilitation, in Nigeria, it’s probably just used by smart criminals as a ‘get out of jail free card’. The circumstances of each case must therefore, be well considered. Other factors must be taken into consideration apart from remorse, accountability and good behaviour; the nature of the offence, public interest and safety, that is, whether there is a likelihood that the convict may offend again.
Some of the Cases: Using the Ekiti Guidelines as the Template
1) Maryam Sanda and Lina Kusum Wilson
Maryam Sanda was sentenced to death for killing her husband, and has been incarcerated for 6 years 8 months. Paragraph 4.4(a) of the Guidelines, shows that Sanda hasn’t met the condition of serving at least 15 years imprisonment for a capital offence. There is no extenuating circumstance that entitles Sanda to a derogation, under the criteria set by Paragraph 5.1 of the Guidelines. She is 37, outside the 18-21 or over 70 age brackets for young and old offenders; she isn’t said to be terminally ill, or plagued by an infectious disease.
The victim, Bilyaminu Bello’s biological father who is said to be in support of Sanda’s pardon, a factor which has been used to defend the grant of her pardon, if the circumstances weren’t so sad, I would have referred to his support of Sanda’s pardon sarcastically, as laughable. As we can see from some of the publications of the last few days, Bilyaminu’s biological father’s case is akin to that of a parent who puts his child up for adoption at birth, and is never seen throughout his life. Then suddenly, 40 plus years later, the parent reappears, to not just claim a child that he has never had contact with, as his, but, to take important decisions relating to his life. There must be a reason for this reappearance and claim, and in this case, it appears to be self-interest. Here, the words of the biological parent who shares absolutely no bond of affection with the child and proceeds to spout nonsense about forgiveness, must be taken with a pinch, no, a 50kg bag of salt, and not as the gospel truth that is over and above the words of his adoptive parents who brought him up as their own child, and who are the ones the child knows as his Parents! Pray tell, who are the family of the child in true sense of the word? The biological father, who is nothing more than a sperm donor, or those whom the child grew up with all his life, who nurtured him? These days, ladies pick up sperm samples of men unknown to them from fertility clinics, and use them to father their children!
Assuming without conceding that Bilyaminu’s father was his father in the true sense of the word, and supported Sanda’s pardon, but every other member of his family, his grandparents, mother, siblings, cousins opposed the pardon, should the Committee not take the feelings of the other family members into consideration, as well as other criteria to make an informed decision? That Sanda hadn’t served the requisite 15 years in prison; that it is against public interest to pardon Sanda now, because it sends a wrong message to the society – that it is possible for a premeditated, heinous offence in which there was a cover-up attempt to obstruct justice, to easily be reduced to little more than a misdemeanour, if the right buttons are pressed; that there are two types of justice, one for the privileged and connected, the other for the common man. What about the morale of the law enforcement agents who gathered enough evidence to secure the conviction, and the Judiciary that wasted valuable man hours spanning three courts?
Wilson also sentenced to death for culpable homicide had only spent 8 years in prison, meaning that, using Paragraph 4.4(a) of the Guidelines, she is also ineligible to be considered for a pardon.
Finding: Presently, Sanda and Wilson appear to be ineligible for a pardon. 7 others who had spent a longer periods of time on death row, unlike Sanda who is said to be in a Medium Security Correctional Facility, had their death sentences commuted to life imprisonment. This is more understandable, seeing as the world is moving away from capital punishment.
2) Bukar Adamu
He was sentenced to 20 years imprisonment in 2019 for advanced fee fraud. His prison term was reduced drastically from 20 years to 9 years, by more than half. Why?
Finding: Though Adamu has served over one-quarter of his 20 year sentence (see Paragraph 4.4(c) of the Guidelines), the reason for the drastic reduction in his sentence is unknown. It is not automatic that a person who serves one-quarter of their sentence, must be released.
3) Kelvin Onairah Ezigbe, Frank Azuekor and Chisom Francis Wisdom
While nothing is known about Azuekor and Wisdom, except for the fact that they were sentenced to 20 years imprisonment with effect from 2013 and 2018 respectively for kidnapping, and their sentences have been reduced to 12 years, in the case of Azuekor, for good behaviour and attending Open University, Ezeigbe was sentenced to 20 years imprisonment with effect from 2013, for kidnapping, and has served over half of his 20 year sentence. He is reported to be the one who kidnapped Chief Mike Ozekhome, SAN, amongst others, while it is alleged that others were killed in his captivity. Reducing his sentence to 13 years means he will probably be ready to go home now, since one prison month is said to be 20 days. The reason for his release, is that he showed remorse and attended National Open University! Really?
A kidnapper in whose custody people were alleged to have been killed, and was only sentenced to 20 years imprisonment instead of the death sentence, is rather lucky. Should he not then be made to complete his sentence, for such terrible crimes? It seems that all those years ago, the penalty for kidnapping was not as severe as it is today. Presently, many States have enacted laws that if a kidnap victim dies in captivity, the punishment of the kidnapper upon conviction will be death, while kidnapping now attracts a life sentence. See for instance, the Edo State Kidnapping Prohibition (Amendment) Law 2025 which provides much stiffer penalties for different aspects involved in the crime of kidnapping, with the intention of addressing the whole chain from providing logistics support (14 years imprisonment) to aiding and abetting (21 years imprisonment); Section 2 (2) & (3) of the Lagos State Kidnapping Prohibition Law 2017.
Finding: With the scourge of kidnapping in Nigeria, Ezeigbe, Azuekor and Wisdom should be left to complete their sentences, to show that Nigeria has zero tolerance for kidnappers. Is it fair to Ezeigbe’s victims who are still very much alive, to pardon him because he attended Open University, after the suffering and fear that they endured in his clutches? I think not. This reprieve serves only Ezeigbe’s interest, and neither that of the victims, dead or alive, nor public interest. Just as detainees are tutored by inmates to deny the voluntariness of their confessional statements necessitating a trial-within-trial, inmates are probably shown that attending Open University may earn them an early release from prison.
4) Dr Nwogu Peters
Looking at Paragraph 4.4(c) of the Guidelines, Peters is serving a 17 year jail term for fraud since 2013. He has served most of this sentence, but is said to have other outstanding cases, yet to be determined. How would the pardon work?
Finding: The issue of the other charges pending against Peters, is extremely relevant. As a result of this, Peters may not be eligible for a pardon, which would obviously be only for the offence that Peters was convicted for. Paragraph 6 of the Ekiti Guidelines provides for the cancellation of the remedy, if information in the application is found to be fraudulent or the conditions under which they are granted, are breached. Surely, non-inclusion of the fact that other charges are pending against a convict would be fraudulent, as it is amounts to withholding material facts that would obviously influence the outcome of the application. Similarly, the fact that such charges are pending, would probably breach the conditions under which such pardon is granted.
5) Nweke Francis Chibueze and Chukwukelu Sunday Calisthus
Nweke and Chukwukelu are both serving life sentences, for drug offences. We are not told what type of drug Chukwukelu was involved in, but Nweke is for cocaine related offences. Chukwukelu has been in prison since 2014 (11 years), while we don’t know how long Nweke has spent in prison, whether up to 10 years to make him eligible him for a pardon under Paragraph 4.4(b) of the Guidelines as Chukwukelu appears to be, or whether there are other reasons like age or terminal illness, but Section 11 of the NDLEA Act 2004 tells us that Nweke must have been involved in either the production, manufacture, importation or trafficking and selling of cocaine, to bag a life sentence.
Finding: Not enough information was provided on the list of pardonees that was disseminated, to make an informed decision as to whether Nweke and Chukwukelu are deserving of pardons.
6)Aluagwu Lawrence
Aluagwu was sentenced to life imprisonment in 2015, for being in possession of 220 grammes of cannabis, and has spent 10 years in prison.
Finding: Not only is Aluagwu eligible under Paragraph 4.4(b) of the Guidelines having spent 10 years in prison, his sentence appears to have been unnecessarily harsh. About 20 others on the list of pardonees who were caught with larger quantities of cannabis, were sentenced by courts to 3-15 years imprisonment, and they have served half to three-quarters of their sentences (see Paragraph 4.1(c) of the Guidelines). The sentences of many of drug related pardonees, were reduced by some years. In some countries such as Germany and Canada, the recreational use of cannabis is now legal.
Finally
A comprehensive audit of inmates in all the Nigerian Correctional Facilities is required, so that many more who are awaiting trial, or convicted with options to pay fines but are unable to pay, and so on, can be addressed, in order to decongest the prisons. A case in view for pardon, is also that of Sunday Jackson v The State SC/CR/1022/2022 per Helen Moronkeji Ogunwumiju, JSC, in which Her Lordship, in her dissenting judgement accepted Jackson’s plea of self defence, a complete defence, and recommended him to the Governor of Adamawa State for the prerogative of mercy (see Paragraph 4.1(b) of the Guidelines). This is one of the cases being used abroad, to perpetuate the narrative of Christian genocide in Nigeria. Paragraph 5.1(e) of the Guidelines, may be applicable in Jackson’s case.
Onikepo.braithwaite@thisdaylive.com
