The Position of the Law on Whether a Gorvernor can Exercise Prerogative of Mercy before Judgement;
By Shuaibu Bashir Mukaddam
FRN v. ALKALI & ANOR (2018) LPELR-CA/S/179C/2017
PRINCIPLE;
“At the core of the very issues in this Appeal is the question of the proper interpretation of the powers of the Governor of a State under Section 212(1) (a) of the Constitution of Nigeria, 1999 as Amended. The Appellant had contended that it would be wrongful of the Governor to exercise its powers in granting a pardon where there had been no conviction recorded in respect of a criminal offence, because according to learned Appellant’s Counsel, a person who is yet to be convicted is presumed innocent until the contrary is proved. The learned Respondent’s Counsel on the other hand had put up a contrary argument as he contended that the power of pardon extends to every offence known to law and may be exercised at any time after its commission, either before legal proceedings are taken or during their pendency or after conviction and judgment. This has been the focal point of the issues nominated for the determination of this Appeal. In the instant Appeal, the Governor of Sokoto State, North-West Nigeria, the Rt. Hon. AMINU WAZIRI TAMBUWAL CFR, pursuant to an Instrument of Pardon dated the 29th day of September, 2016 had exercised his Constitutional powers under Section 212(1) (a) of the Constitution of Nigeria, 1999 in granting pardon to the Respondents herein at a time when they were undergoing trial and under circumstances in which they were yet to be convicted by the Court below. Before the exercise of the said powers of pardon, the Respondents were standing trial before the Court below on a-One Hundred and Forty-Four (144) counts Amended Charge dated 11th day of January, 2010 for sundry offences including conspiracy, breach of trust, receiving stolen property, all punishable under the Penal Code applicable in Sokoto State of Nigeria.
It would be recalled that at the Court below, trial had commenced and the Appellant’s Counsel were calling their witnesses, when the Respondents through their Counsel filed a motion on notice dated 4th day of April, 2017 praying the Court inter alia for an order discharging them from the charges in the case on the grounds that they had been granted unconditional pardon by the Governor of Sokoto State. The question that should perhaps, be asked at this stage is: what does the word “Pardon” denote under the Constitution of Nigeria, 1999 as Amended? The Constitution of Nigeria, 1999 provides the power of “Pardon” under Section 175 for the President of the Federal Republic of Nigeria as follow;
“1. The President may- A. 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; 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 server 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.
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 power 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. In the case of the Governor of a State, the Constitution provides under Section 212, the power of pardon for offences created by any Law of a State in the following words:
“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, 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. 2. The power 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 the Law of the State.” This Court, in the case of FALAE vs. OBASANJO (NO. 2) (1999) LPELR-6585 (CA) per MUSDAPHER, JCA (as he then was) defined: “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 forfeited on account of the offence. See VERNECO INC v. FIDELITY CAS C. AT NEW YORK 253 LA 721, 219 SO 2D 508, 511.” Also in the case of UNITED STATES v. WILSON, 32 U. S. (7 Pet) 150 (1833) at 159-60, Pardon was defined as an act of grace proceeding 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. It is further defined as the “private”, though official act of the Executive.? Under ARTICLE II Section 2 the Constitution of the United States of America, the provision is titled: “Civilian Power over Military, Cabinet, Pardon Power, Appointments”, ostensibly to demonstrate the political nature of the power, which grants the Chief Executive of State a political duty rather than a duty of law or justice to grant acts of clemency to deserving persons under a political entity. It is for this reason that the duty to pardon is neither grounded in nor limited by considerations of law or morality, as it is essentially one of politics and therefore never expected to be a subject of litigation in any Court of law, because of its discretionary nature. In the case of BIDDEL v. PEROVICH, 274 U. S. A. 480, 486 (1972) the act of pardon is also said to be a part of the Constitutional scheme to be exercised for the public welfare that need not be justified or defended within the legal system so long as it is “a matter of grace”.? On the question of the proper interpretation of Section 212(1)(a) 1999 Constitution, there is absolutely no doubt that there are two limbs to the category of persons who can be beneficiaries or subject-matter of Pardon pursuant to the powers conferred on the Governor of a State under the scheme of things, which recognizes the following categories;
1. “any person concerned with” or 2. “convicted of any offence.” The attitude of this Court in dealing with the issue of interpretation of Statutes is to strictly adhere to the first traditional rule of statutory construction, which dictates that the ordinary meanings of the words has to be adhered to in the absence of any special reasons to act otherwise.
In this regard, see the words of TINDAL, C. J., in SUSSEX PEERAGE CASE (1844) CI. & FIN. 85; See also LAWAL vs. G.B. OLLIVANT (1972) 2 SC 124; ATUYEYE vs. ASHAMU (1987) 5 NWLR (PT. 49) 267 AT 353; ABIOYE vs. YAKUBU (1991) 5 NWLR (PT. 190) 130 AT 203-233-4. In responding, therefore to learned Appellant Counsel’s resort to the use and application of the Ejusdem Generis canon of interpretation under circumstances, such as in this case in which the ordinary meanings of the words used in Section 212 (1) (a) of the 1999 Constitution of Nigeria (As amended) are plain and unambiguous, is to quickly draw attention to the fact that to be allowed to so do, is to allow violence to be done to the true meaning of Section 212(1)(a) of the Constitution and in the process, obliterate the purpose and intention for which the makers of the law have deliberately included the word: “or” between the phrases: “any person concerned with” on the one hand and “convicted of any offence” on the other hand. In therefore, relying on the classical position here, it is important to note that the word; “or” in the provision, included by the law makers deliberately conveys a disjunctive meaning which accords with Section 18(3) of the Interpretation Act, CAP. 123 LFN, 2004, which provides that, the word: “or” in any enactment, be construed disjunctively and not as implying a similarity.
In the case of ALHAJI ATIKU ABUBAKAR vs. YAR’ADUA (2009) ALL FWLR (PT. 457) 1 at 76 – 86 paragraphs G – D., this Court per KATSINA-ALU, JCA (as he then was) held the view that; “The word “or” is defined in Black’s Law Dictionary, 6th Edition, in the following terms: A disjunctive participle used to express an alternative or to give a choice of one among two or more things.” Against the backdrop of this position, I simply find myself unable to disagree with the arguments of the Respondent’s Counsel that the expressions: “any person concerned with” or “convicted of any offence” used in Section 212 (1)(a) of the Constitution of Nigeria, 1999 as Amended are not distinct and separate clauses.
I am therefore also in agreement with learned Respondent’s Counsel, that the authorities cited and relied upon by learned Appellant’s Counsel are clearly related to the second limb of Section 212 (1)(a) of the 1999 Constitution, dealing with situations where beneficiaries must have been “convicted of any offence”, before they are granted the pardon of the State Governor. What this means in essence therefore, is that learned Appellant’s Counsel Submissions due to reasons best known to Counsel have failed to address the first limb of the Constitutional provision dealing with the expression: “any person concerned with”.?
It would equally be recalled that in arguing this issue, learned Appellant’s Counsel made a heavy weather arguing that the power of pardon cannot be exercised where a conviction had not been handed down, and by so doing stringed-up together a number of interesting arguments tending in the process to forget that the exercise of the power of pardon in the hands of the Chief Executive of a State is a political contrivance, which is rarely limited by legal considerations except where there are obvious and deliberate failures to adhere to clearly stated guidelines on the issues, which students and scholars of the Nigerian Constitution would readily admit are clearly none existent.
A careful and calm reading of both Sections 175 and 212 in this connection, which provides for the Constitutional powers of pardon, contain no such things as procedures, steps and requirements, thus giving the Nigerian President or State Governor respectively, more space to manoeuver in his exercise of his power to grant a pardon. However, in the wake of an obvious dearth in judicial pronouncements on the subject in the political space called Nigeria, learned Respondent’s Counsel cited the case of EXPARTE A. H. GARLAND (1865) U. S. SUPREME COURT REPORTS, 18 LAWYERS Edition, Wallace 3 – 6 at Page 300, where the United States Supreme Court had this to say on the subject; “Pardon power extends to every offence known to law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency or after conviction and judgment.” (Under lined, mine for emphasis) The effect of a pardon, as expressed by JUSTICE FIELD in the said case in which Garland, an Attorney, had been pardoned by President Andrew Johnson for offences committed during the civil war, 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.”(Underline is mine for emphasis).
Apart from the fact that the above position puts it beyond further disputations about whether a conviction has to be a prerequisite for the proper exercise of the power of pardon or not, learned Respondent’s Counsel also raised an interesting argument on the issue where he resorted to the BLACK’S LAW DICTIONARY, EIGHT EDITION in defining the word “pardon”, which he said accorded with/or is in harmony with Section 212(1)(a) of the 1999 Constitution. In his words: “Punishment” obviously pertains to/is relative to “conviction”, which is a condition precedent to punishment and that the expression: “other legal consequences of a crime” cannot by any stretch of imagination be said to have any nexus with “conviction”.
In this connection, I am in agreement with the learned Respondent’s Counsel that the “other legal consequences of a crime” as contemplated by the Constitutional provision could include ‘criminal prosecution’, which normally ensues after the commission of a crime more so when the act of pardon is in general, an act of forgiving a crime and nullifying punishment or other legal consequences of a crime such as legal prosecution as in the instant appeal.” Per OHO, J.C.A. (Pp. 47-58, Paras. B-F)
CONCLUSION;
From what’s aforementioned it’s no longer in doubt that the power to pardon in respect of a criminal offence is only given to the president and gorvernor of a state the question raised was when can the president and the gorvernor exercise this power is it after conviction or before conviction the court agreed with learned counsel in this power can be exercised before conviction or after taking a careful look at the word “or” inserted before the two clauses.
ABOUT THE AUTHOR;
Shuaibu Bashir Mukaddam is an undergraduate student of 200l of Maryam American University Of Niger faculty of law. He is an enthusiastic reader, researcher and legal writer. His interest and vast knowledge in the legal sphere covers all aspect of the law.
Shuaibu Bashir Mukaddam can be contacted via;
Shuaibubashir16@gmail.com
Or via LinkedIn @ https://www.linkedin.com/in/shuaibu-bashir-mukaddam-6b6ba02a6?utm_source=share&utm_campaign=share_via&utm_content=profile&utm_medium=android_app
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