An Analysis on pardon, commutation and Clemency: Nigeria as a case study

An Analysis on pardon, commutation and Clemency: Nigeria as a case study

By Oladele Kehinde Emmanuel


This research critically analyzed the position and application of presidential power of pardon , commutation and  by the court  in Nigeria. Obviously the power of pardon is a vital component of executive powers, permitting the President to intervene and release a convicted individuals, in “dispensing the mercy of government” significantly where the legal system fails to deliver a morally or politically acceptable result. However, in this dispensation, this constitutionally granted  power has, in practice, turned into a personalize Presidential prerogative which is invariably a feature of  traditional kingship reserved for highly privileged and connected. The concept of pardon is inseparable from commutation and clemency being that they are of the likelihood origin, however, while the former is executive, the latter is judicial in nature and the former could still override the latter.. Some jurisdiction abused the system, while so me like Nigerian stipulated a  conventionally specified criteria which guide the grant of pardon. Against this backdrops  this research concisely examined the concept of presidential pardon as enshrinement in the Nigeria constitution with it’s aids, it’s origins and operations in Nigeria space, it’s abuse and efforts geared towards repositioning same. 

Keywords: pardon, commutation, clemency. 



Varieties of the exercises of presidential pardon, clemency and commutation has existed in Nigeria. Its without an oppositions though that majority of judicial determinations were premised on the requisite doctrine being fair and deserving, while others contradicted the position, being that lines of criticism suffice in describing them as strictly been a display of executive high-handedness and gross mis appropriation or abuse of power. Additionally, it’s imperative to note from this outset that, the pardon is still refers to as prerogative of mercy in Nigeria law, which sequentially is an umbrella term that incorporate clemency and communication,  recent regime  of immediate past president Goodluck Jonathanpardoning the Chief D.S.P. Alamieyesigha, former Governor of Bayelsa State, who was convicted of some numbers of  corruption charges, has become a Frontline and the most controversial exercise of presidential pardon power in Nigeria. 

The exercise of pardon power, in a rigid and formal constitutional jurisprudence, is equivalent to an interference by the executive with the exercise of judicial power; undeniably in breach of the sacred doctrine of separation of powers which envisages qualified difference. However, such interference would be allowed when authorised by the same Constitution that provided for the doctrine of separation of powers. Presidential pardons are by design, a check upon the occasional misnomers, morally or politically acceptable results which is glaringly miscarriage of justice wrongful decisions of the judicial court, and although it’s being practiced, not wholly creditable. This is not far fetched from the reliable of the judiciary administrating justice to the justifiable extent, and the executive having preference and choice dominating, this is what  (Love, 2007) emphasized as high service heeled. The research encapsulates  the concept cum purpose of the pardon, clemency and commutation with not exclusive imperative abuse of same in Nigeria and at the end concluded with inestimable suggestions for effective and efficient operations. 


Conceptualization of term and synoptic Account on the origin of pardon ,clemency and commutation 


Legal wise, The Black’s Law Dictionary (Garner, 2009) defines the word “pardon”, as “the act or an instance of officially nullifying punishment or other legal consequences of a crime. A pardon is usually granted by the Chief Executive of a government which is the president as related to federal offences and the Governor in respect of State offences, this is the position if Nigeria laws. 

Chief Justice Marshall defined a pardon in  US V. WILSON inter alia:

… an act of grace, proceeding from the power entrusted with the executive of laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed. It is the private, though official act of the executive magistrate delivered to the individual for whose benefit it is intended and not communicated officially to the court

Whereas, in Biddle v Perovich, Holmes J. declared that: 

A pardon in our days is not a private act of grace from an individual happening to possess power. It is part of the constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflecting less than what the judgment fixed

Therefore, it is in this light  that we outline that, pardon is referred to as the prerogative of mercy, which is a constitutional power vested in the President to exercise in respect of federal offences  and in the Governor of a State, in respect of State offences. It was bequeathed in Britain, where it was part of the royal prerogative. According to Blackstone: 

 By the word prerogative we usually understand that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity. It signifies in its etymology, something that is required or demanded before, or in preference to all others.  

In furtherance to the above,  Hood-Philips and Jackson highlight the peculiar characteristic of the royal prerogative and its relation to the common law. 

 It’s reiterated that pardon (prerogative of Mercy) is not supposed to be  ‘out of the ordinary course of the common law’ in the sense of being above the law; it is part of the common law, but an exception to the principles that apply to citizens generally. (Hood-Philips & Jackson, 2001). Tracking the history, the concept pardon was a work of mercy, where the king, either before attainder, sentence, or conviction, or after, forgiveth any crime, offence, punishment, execution, right, title, debt, or duty, temporal or ecclesiastical”.  The power was indeed an absolute, unfettered and not subject to any judicial examination or scrutiny unlike the present practice of it’s abuse (Coke, 1669). Even, the absoluteness and sincerity of the power qualified it being used to usher a regimes by “endearing the sovereign to his subjects” (Blackstone, 1769).


Commutation according to the black law dictionary 11th edition  is an exchange or replacement; the executive’s substitution in a particular case of less severe ok be that has already been judicially imposed on the defendant. Cf. Pardon , reprieve. Commutation may be bae d on the delivery of pertinent facts that were not known or available when the sentenced was decided, or that arose and were developed afterward. It may as be based on the executive’s statutorily or constitutionally granted discretion, regardless  of the facts. Under section 1-2.113 of the US DOJ Manual, commutation is rarely granted but may be considered for old age, illness, disparity, or undue severity of sentence

A cursory look into an example of commutation  in Judicial decisions. 

In the case of Mumuni Yusuf v. The state (2013) LPELR _ CA/AK/823/2011, HIS lordship MOJEED ADEKUNKE OWOADE Jsc in his judgement, , has this to say about commutation:

……. the appeal lacks merit. In the instant case, the only logical consequence of the judicial conclusion is to affirm the judgment of the Court below. For this reason I am unable to agree with the post-script sentiment expressed by my learned brother Sotonye Denton-West JCA of commutating the appropriate sentence of death penalty to life imprisonment. Such powers of commutation of death penalty to life imprisonment as expressed by my learned brother is ultra vires the Courts, it properly belongs to the executive and/or legislative arm of Government. It does not lie within the province of the judicial arm of government to execute or to make laws. At the same time, the Courts have frowned on the usurpation of the powers of one arm of government by another arm of government. Indeed, the principle behind the concept of separation of powers is that none of the three arms of government under the Constitution should encroach into the powers of the other. See A-G, Abia State V. A-G. Fed, (2003) 4 NWLR (Pt.809) 124.Amadi V. NNPC (2000) 6 SC (Part 1) 66 at 94 – 95. For a Court of Law to competently interfere with Constitutional duties of the Executive and/or the Legislature there must be controversy. Controversy in this sense must be one that is appropriate for judicial determination. See Asogwa v. Chukwu (2003) 4 NWLR (Pt.811) 540.In the instant case, there was no appeal on the sentence imposed by the Court below on the Appellant neither was there any other controversy in relation to the appeal that called for the commutation of the death penalty imposed on the appellant to life imprisonment after affirming the judgment of the Court below.In any event, where a mandatory sentence is prescribed by law as in the instant case death penalty, the court cannot impose a lesser sentence.See: Balogun V. A-G, Ogun State (2002) 6 NWLR (Pt.1029) 1. Also, in Nigeria, the offence of murder as well as armed robbery carries the maximum capital punishment. In the cases of Okoro V. State (1988) 14 NWLR (Pt.184) 181 and Akinyemi v. State (1999) 6 NWLR (Pt. 607) 449, It was held that death penalty and its method of execution is lawful and valid in Nigeria as it is sanctioned by Sections 30 (1) and 31 (1) (a) of the then Constitution of Nigeria 1979.

This is such that neither life imprisonment nor a sentence of ten years can be regarded as sufficient punishment for murder, notwithstanding the fact that the accused had remained in prison custody for ten years awaiting trial. See: Yahaya v. State (2002) 3 NWLR (Pt.754) 289. For these reasons, I affirm the conviction and sentence imposed on the Appellant by the court below (the High Court. 

Meanwhile, just as commutation could be scrutinized and censored, Pardon On the other hand is  an act of grace, flowingly from the power entrusted with the execution of the laws, which exempts the individuals, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed but, commutation only lessen the gravity of the offence sentenced. Pardon is private though official act of the executive.  This is why it can never be a subject of litigation in any court, because it’s discretional.  A pardon for innocence is an acquittal, and must be given all the effects of an acquittal. An innocent man cannot be pardoned but needs mercy. For other reasons, pardon leaves the determination of the convict’s guilt stand, and only relieves him from the legal consequences of that guilt.



On the other limb, the word  “clemency” is an undeniably a generics term under which four traditional forms of executive mercy at common law: pardons, reprieves, commutations of sentence, and remissions of fines and forfeitures are subsumed. Now, the  sovereign had unlimited discretion to replace grave punishment with a lesser one or none at all under common law. Where pardon is total termination of a punishment, either freely or conditionally, a  reprieve is a temporary delay or suspension of punishment, while a commutation is substitution of a greater sentence with a lesser one. Against this, pardon being the most extended form of clemency which incorporates the full range of executive power, then,  “clemency” and “pardon” are used often interchangeably because of their same features. 

For the  U.S. Constitution, it  states that the president has the “Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,” the power that has been expansively interpreted to allow individual or group pardons before, during, or after trial, conditionally or absolutely. However, contrarily, every common law country possesses a mechanism for clemency outside of the judicial branch.


Nigeria and Pardon operation (in prerogative of Mercy guise)

The supreme law, the  Constitution of the federal republic of  Nigeria, 1999, section 175 which deals with the exercise of prerogative of mercy by the President, provides as reproduced below: 

Section 175(1 The President may- 


  • 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; 
  • 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; 
  • Substitute a less severe form of punishment for any punishment imposed on that person for such an offence; or 
  • 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.  
  • The powers of the President under subsection (1) of this section shall be exercised by him after consultation with the Council of State. 
  • 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 sentenced by a court marital. 

Additionally, it went further to provide the prerogative of the State governor of each states of the federation of Nigeria, this is also reproduced among others:

212 (1) The Governor may

(a)      Grant any person concerned with or convicted of any offence created by any law of a state a pardon, either free or subject to lawful conditions;

(b)      grant to any person a respite, of the execution of any punishment imposed on that person for such an offence;

(c)      substitute a less severe form of punishment for any person for such an offence; or

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

(2)      The powers of the governor under subsection (1)of this section shall be exercised by him after consultation with such advisory council of the state on prerogative of mercy as may be established by law of the State


The above constitutional provisions give powers of prerogative of mercy on the President in relation to federal offences and conferred on State Governors, in relation to State offences the same. On this strength  it would be needful to reiterate that the power of the Chief Justice of the Federation and the Chief Judge of  States in Nigeria to order the release of prison inmates is not generated from crystal provisions of  section 175 and 212 of the Constitution, but simply from the Police Act  and the Criminal Justice (Release from Custody) (Special Provisions) Act. To that extent, incarcerated victims so released by the Chief Judges are not a qualified of pardon but released from illegal prison custody.”. 

By virtue of section 175(3) of the Constitution of Nigeria, it had been interpreted severally that the President’s prerogative of mercy same as pardon (vice versa) extends to persons concerned with offences against the army, naval, or air force law or convicted or sentenced by a court martial. The power could be exercises after consultation with the Council of State.  It’s noteworthy that the spirit of the provision imposes a peremptory obligation on the President to consult. Therefore, any grant of pardon by the President without consultation with the Council of State is unconstitutional and void (Nwabueze, 1982), this contravention would be illegality and gross abuse of power. However, the President is not obligated to accept and act upon the advice given during the consult , but he is bound by the advice of the Council of State under this subsection, since he is expressly mandated to act on the advice of that body. 

Meanwhile, Nigeria Courts have held that a pardon cannot be properly granted to a person whose appeal against conviction is pending in the appellate court. In the case of Obidike v State,  the Court of Appeal failed to accord recognition to the pardon granted to the appellant while his appeal was pending. The court dismissed the appeal and ordered the appellant re-arrested and executed in accordance with the judgment of the trial court. However, in Isibor v State,  the Supreme Court did not order the re-arrest and execution of the appellant who had been granted a pardon while his appeal was pending. After dismissing the appellant’s appeal, the Supreme Court, per Ejiwunmi, JSC, stated as follows: 

 It is clear that the appellant from the above has been made a free man by the fiat of the Head of State (and) commander-in-chief of the Armed Forces—General Abdul Salami Abubakar on the 5th March 1999. However, having regard to the verdict of this court in this Appeal, it does now appear that the appellant cannot be punished as provided by law in respect of the Offence for which he stands convicted. It is hoped that deliberate effort would be made in the future to avoid situations of this kind when exercises of this nature are carried out.  Clearly, the approach adopted by the Court of Appeal in Obidike’s case was harsh and confrontational; while the approach adopted by the Supreme Court in Isibor’s case was consistent with democratic ideals and is therefore, preferable. 


The Legal implication of pardon and it’s corollary in Nigeria

The implication of Presidential pardon or prerogative of mercy with commutation and clemency are difference, pardon is  granted a citizen to eliminate the conviction and all its consequences and from the time it is granted leaves the person pardoned in exactly the same position as if he had never been convicted. This is clear in the  American view of the effect of a pardon, as expressed by Justice Field  in Ex parte Garland is that: 

a pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt; so that in the eyes of the law the offender is as innocent as if [sic] he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching. If granted after conviction it removes the penalties and disabilities and restores to him all his civil rights.  

Flowing from the judicial pronouncement in Falae v Obasanjo, the Court of Appeal also held that a pardon cleared the person pardoned of both the crime and the infamy. In the Court of Appeal held in favor of the respondent that by virtue of the pardon granted him by the then Head of State, he was eligible to contest the election. Musdapher, JCA, 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

Therefore, any property, or monies earlier forfeited basically for  the offence, are as a general rule, usually returned to the pardoned individual, except where the pardon is not full, or the property can no longer be specifically restored, due to the fact that the property has legally vested in other persons, in which case monetary compensation is usually paid to the person pardoned to enable him recover his loses, otherwise, all monies and properties earlier forfeited, or abandoned are usually restored in kind and in full to the person pardoned.



It has already been pointed out that, the power of pardon which was historically vested in the British monarch, was an act of mercy, whereby, the king “forgiveth any crime, offence, punishment, execution, right, title, debt, or duty.” However, the monarch exercises Currently the  power on the advice of the Home Secretary, whose decision can, in some situations, be challenged by judicial review (Sebba, 1977). In R v Secretary of State for the Home Department, ex parte Bentley,  it was held that the royal prerogative of pardon is a flexible power. Thus, it lies in the Home Secretary’s discretion on the exercise of the prerogative of mercy is a wide discretion. Nevertheless, the Home Secretary’s decision to pardon a prisoner is susceptible to judicial Review. Therefore, it may be observed that some states in the Federation exercise their powers in line with the above stated provision of the constitution. However, some Governors do not have in place Council of the State for prerogative of mercy. The Council of State in place in some states, appear to be mere rubber stamp who just sign documents to fulfill all righteousness.  

Moreover, In the United States of America, there’s a Constitutional provision on this subject as seen in Article II Section 2 which provided thus: 

Article II Civilian Power over Military, Cabinet, Pardon Power, Appointments. 

Section 2 – The President shall be Commander in chief of the Army and Navy of the U.S., and of the Militia of the several States, when called into the actual service of the U.S, he may require the opinion, in writing, of the principal officer in each of the executive Departments, upon any subject relating to the Duty of the respective offices, and he shall have Power to grant Reprieves and Pardon for Offences against the United States, except in cases of impeachment

The presidential power of the US is also derived from the royal English prerogative of kings which dated from the Norman invasion.  The same is honorably enshrined in Article 11, section 2, Clause 1, of the United States Constitution, which sequentially provides that the President “shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeachment”. Now, the  President or Governor may grant a full (unconditional) pardon or a conditional pardon. Meanwhile, full or unconditional pardon entails that a recipient of a pardon may regain the right to vote and to hold various positions of public trust. Contrary to that,  a conditional pardon is said to impose a condition on the offender before it becomes effective. This is also relatable with what’s obtainable in the federal Republic of Nigeria, although, clemency is obviously and expressly availed in their laws. 


Veraciously, the thrust of this research: Pardon, clemency and commutation are of ancient origin, the relevance of it then, extends it applicability, hence the recognition around the globe. Undue mistakes of the judiciary are corrected in case of pardon, while unnecessary elongation of sentence after conviction is ameliorated at through the instrumentality of commutation and clemency, be that as it may, none of the subject discussed in this research has gone without criticism emanating from its  from extraneous factors and political circumstances.. times, the pardon power has been abused as political and other extraneous. It is therefore conclusively suggested that more stringent rules concerning the exercise of the concept should be recognized by draftsmen and entrench it into various applicable laws.



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