The President of Nigeria grants pardon as a prerogative or an act of discretion to correct perceived injustice, wrongful punishment or judicial excesses and this could be a tricky point given the salience of the doctrine of separation of powers.
Pursuant to the powers to exercise the prerogative of mercy vested in the President of the Federal Republic of Nigeria in Section 175 (1—6) of the 1999 Constitution the Federal Government last week granted state pardon to two former state governors, Rev Jolly Nyame of Taraba State and Senator Joshua Dariye of Plateau State, along with 157 others. The effect of pardon amounts to the nullification of punishment or consequences of a crime and conviction. The person is fully restored as if he never committed the offence in the first place. It is perhaps for this reason that Justice John Marshall in US v. Wilson (1833) describes a state pardon “as an act of grace”. The President of Nigeria grants pardon as a prerogative or an act of discretion to correct perceived injustice, wrongful punishment or judicial excesses and this could be a tricky point given the salience of the doctrine of separation of powers. The easiest defence however is for the government to hide under the cover of public policy, or the fact that no law is broken when a state pardon is granted since it is a constitutional function. The only caveat is found in Section 175 (5) which requires the President to seek the advice of the Council of State and Section 175 (6) which asks the President to act “in accordance with the advice of the Council of State.” In Nigeria, the power to grant pardon is vested in the President with regard to federal offences (section 175) and in State Governors in respect of state offences (Section 212). A pardon is not the same as amnesty which is granted before prosecution, as seen under the Presidency of late President Umaru Musa Yar’Adua when he granted amnesty to Niger Delta militants nor is a state pardon a form of judicial review as defined for now under Nigerian law.
Nigeria has a fairly long history of state pardons. In 1966, before the civil war, the Yakubu Gowon regime pardoned Chief Obafemi Awolowo, leader of the Action Group, and former Premier of the defunct Western Region, and Chief Anthony Enahoro, journalist and politician, who first moved the motion for Nigeria’s Independence in 1953, both of whom had been convicted of treasonable felony in 1963. President Shehu Shagari pardoned General Yakubu Gowon to nullify the accusation that he was involved in the 1975 Bukar Dimka coup that led to the assassination of General Murtala Muhammed. The same Shagari administration pardoned the Biafran leader, Odimegwu Ojukwu, for leading the Biafran secession between 1967 and 1971. General Babangida granted pardon to Nduka Irabor and Tunde Thompson, two journalists with the Nigerian Guardian newspapers who were jailed under the draconian Decree 4 imposed by the Muhammadu Buhari regime. General Abdusalami Abubakar pardoned then General Olusegun Obasanjo who was convicted of involvement in a coup plot by the Abacha regime. President Obasanjo pardoned a former Speaker of the House of Representatives. In 1999, Salisu Buhari was convicted for forging his certificate- the famous Toronto scandal. His sins were later officially forgiven. In March 2013, President Goodluck Jonathan granted pardon to former Governor of Bayelsa State, Chief Diepreye S. Alamieyeseigha along with Lt. General Oladipo Diya (rtd.), Major-General Abdulkarim Adisa (rtd), former Managing Director of Bank of the North, Shettima Bulama, In April 2020, the Buhari administration granted pardon to former Governor of old Bendel State, Prof. Ambrose Alli, Chief Anthony Enahoro, Col. Moses Effiong, Major E.J. Olanrewaju, Babalola Ajayi and 44 others.
Presidential pardons have been controversial in Nigeria. The general public often subjects the pardoned persons list to rigorous scrutiny, with questions usually raised about the criteria for determining who gets pardoned and who does not. This stems from the concern that it is often the privileged and well-connected members of society who have run foul of the law that are often ever so lucky. Even if this may not be completely true, the point is well made that a President with monarchical powers or a state governor seeking political patronage may exercise the powers of pardon without restraint, resulting in abuse. There are also moral and emotional concerns. In this regard, perhaps the most controversial pardon granted so far in contemporary Nigerian history would be that of Chief DSP Alamieyeseigha who escaped from the arms of the law in the United Kingdom, only to return to a hero’s welcome in Nigeria and the subsequent nullification of all the sins he was alleged to have committed against the people of Bayelsa state. The pardon that was granted him by the Jonathan administration in 2013 was seen as an act of affront by both local and foreign analysts. Alams, as he was known, was accused of having corruptly enriched himself with the resources of Bayelsa state. What was overlooked in this particular case was that the pardon for Alamieyesiegha, initiated by President Umaru Musa Yar’Adua and later effected by President Jonathan was conditional. President Yar’Adua had involved Alams in the amnesty process in the Niger Delta with a promise that in appreciation of his contributions to the cause of peace and stability in that troubled part of Nigeria, he would be granted pardon. Sometimes the trigger of controversy may simply be a blatant error on the part of the authorities as in the case of the April 2020 pardon of Chief Anthony Enahoro. Enahoro was convicted and sentenced in September 1963. He was pardoned by the Gowon regime in August 1966. He went on to become a Federal Commissioner for Information and Labour in 1967. To pardon him a second time was a loud demonstration of absent-mindedness, and to think the pardon was duly gazetted. Some government officials failed to check the records!
Controversial pardons are not limited to Nigeria. However, in the United States where the pardoning process is as in Nigeria, vested in the President, the history of pardons has been more acrimonious. Just to cite a few examples: On September 8, 1974, President Gerald Ford granted a full and unconditional pardon to former President Richard Nixon over his involvement in the Watergate scandal that led to his unceremonious resignation from office and any crime that he may have committed as President. Many Americans felt that the pardon was undeserved. It was a controversial decision but Ford stood his ground. He paid a heavy price for that. His popularity rating dropped. Similarly, in 1983, President Bill Clinton’s pardon of millionaire Marc Rich was generally considered too oily a bargain. On his last day in office on January 20, 2001, President Clinton announced more controversial pardons including left-wing Patty Hearst, Susan Rosenberg and Linda Evans. He also pardoned his own half-brother, Roger Clinton who was convicted of drug trafficking! His last day in office has been described as “pardongate” – a total of 140 pardons! Clinton was known for inciting public outrage with his pardons as was the case when he chose to commute the sentences of 16 FALN terrorists in 1999. His own wife, Hillary Clinton voted against the decision when it was tabled before the Senate but the President could not be stopped because he held the power of discretion to grant pardons. The whole idea of presidential pardon in the American system, a hold-over from the British system was first proposed at the 1787 Constitutional Convention by Alexander Hamilton but over the years, there have been fears about how such absolute power, resting on the discretion of one man could be abused, and indeed in his last days in office, it was thought that President Donald Trump could grant himself a pardon in advance to protect himself legally from the fall-outs of the January 6, 2021 insurrection at the US Capitol. President Trump tried to meet Clinton’s record, if he did not surpass it. In the final hours of his Presidency, Trump granted 70 pardons to mostly financiers and lobbyists, and executive clemency/commutations to 73 others.
Back to Nigeria, it should in fact not be surprising that so much outrage has greeted the announcement of pardon to two former governors – Dariye and Nyame. Those who have commented on the list are not necessarily bothered about the 157 others, but the two former governors. The sentiments expressed so far are similar to the reactions that attended the pardon of Chief Diepreye Alamieyeseigha in 2013. Like him, Nyame and Dariye were accused of corruptly enriching themselves at public expense. Dariye, Plateau State Governor (1999 -2007) was charged with money laundering (N1.16 billion). His matter went from the High Court all the way to the Supreme Court, at the end of which he was sentenced to 14 years imprisonment by the High Court; this was later reduced to 10 years by the Court of Appeal, and his conviction was finally upheld by the Supreme Court. Rev Jolly Nyame, Governor of Taraba State (1999-2007) was sentenced to 12 years imprisonment. And now both men have been freed, completely without conditions. A pardon may be with or without conditions. Theirs is without any. Femi Falana, SAN, Jubrin Sam Okutepa, SAN, Governor Nyesom Wike, Reno Omokri and a host of others have argued that this is a form of endorsement of corruption coming from a government that says one of its cardinal tasks was to fight corruption. In his Easter homily on April 17, Bishop Matthew Hassan Kukah of the Catholic Diocese of Sokoto says there are many innocent people languishing inside Nigeria’s “broken system” who should also be freed. His words: “I thank the President for accepting the report of the Committee on the Prerogative of Mercy and granting pardon to over 150 Nigerians serving various terms of imprisonment. The more serious challenge is to immediately free all innocent Nigerians who are held captive and whose only crime is that they are living in Nigeria.” Mike Ozekhome, SAN in an informed commentary on the matter argues that the crux of the matter is that “granting pardon to people convicted of corrupt practices, whether still serving or having served, may be construed as tacit approval of such corrupt practices.”
He argues further that the Council of State arrived at the endorsement of the pardon in error because the two former governors committed the offences for which they were convicted under state law, the Penal Code Act and not under Federal legislation, and to that extent, the appropriate person to grant them pardon would seem to be the governors of their respective states under Section 212 of the 1999 Constitution. He asks: “where lies the justice for the impoverished people of Plateau and Taraba states who will now watch their tormentors stroll out with red carpet treatment?” Incidentally, it is not only lawyers and civil society activists that have expressed shock. It has been reported that even the officials of the anti-corruption agency, the EFCC and their lawyers are alarmed and demoralized. The agency reportedly spent 11 years and millions of Naira on the investigation and prosecution of the two former governors, and now both men are free. They have been cleansed of their sins. Rivers Governor, Nyesom Wike says the judges who convicted both men have been exposed to ridicule, and that the pardon is politically motivated - Nyame and Dariye are members of the ruling All Progressives Congress (APC).
The strongest objection that has been put up is the impression that has now been created that the state protects the rich and that the poor in Nigeria has nothing to regret more than their powerlessness and lack of connections. Hence, Femi Falana, SAN observes: “A Nigerian was jailed for stealing noodles in Abuja, he was not granted state pardon. If you want to pardon your friends, you must extend that pardon to other people in the spirit of equity and fairness.” Falana wants all thieves in prison to be pardoned – in other words, what is good for the big thief should be good also for smaller thieves.
The reality check in all of this is that the deed is done and the President is unlikely to reverse himself. Ozekhome raises a cogent question about the people of Plateau and Taraba. I am surprised he overlooks the fact that some people in both states, including incumbent Governor Simon Lalong of Plateau, and even Governor Samuel Ortom of Benue State have been thanking President Buhari for pardoning their kinsmen. The same people will organize a hero’s welcome for the two former governors. The effect of their unconditional pardon, after all, is that they have become new men - novus homo! As the political parties prepare for their presidential primaries, it is not impossible that these same men could show up as political candidates – for Senate or Vice-President or even President! The other point made by Ozekhome, with due respect, is to be seen as part of the crisis of federalism in the country. It is true that the two governors committed offences under state law, but the affected states never investigated or prosecuted them. It was the Federal Government as an interloper that did, and so, the Council of State acted according to the process in place.
Beyond the moral anger that has been displayed, we should be more concerned about how to prevent the abuse of presidential pardon to ensure that the main beneficiaries are not the rich and mighty and that the near-absolute powers exercised by the President are curtailed to prevent a situation whereby pardons go more to friends of the ruling party or kinsmen and political associates. The Council of State, created by Section 153 (1)(b) of the 1999 Constitution, and which is referred to in an obligatory sense in Section 175 (5) and (6) is more of a ceremonial or advisory body. Its members have no powers to overrule the President in respect of state pardon, in the same manner in which the Legislature can challenge the President or the judiciary can question Executive powers by defining what the law is. The power of a President to grant pardon, while an act of benevolence, is rather slippery. He is, in any case, the Chairman of the Council of State. In order to develop our Constitutional framework further, the judiciary should be involved in the pardoning process to check arbitrariness, reduce the scope of discretion, and to ensure that there is a judicial review of the pardon list to bring it more in conformity with the laws of the land and the end of justice. But should this appear as if the judiciary is being brought into the fray to become a judge in its own case, then the Council of State should be given more powers to be part of the process of determining the pardon list, instead of being brought in at the last minute to rubber-stamp an Executive decision.
By Reuben Abati