On Sheikh Gumi’s advice to grant amnesty to bandits

In this piece, former United Nations genocide and war crimes prosecutor at the International Court of Justice, Dr Charles Adeogun-Phillips, weighs in on the advice by Islamic cleric, Sheikh Ahmed Abubakar Gumi, that Nigeria should consider amnesty for bandits as a way to check banditry in Northern Nigeria.

Can the President grant amnesty to the bandits?

The supreme law in Nigeria is the 1999 Constitution of the Federal Republic of Nigeria (CFRN, as amended). Section 1 of the CFRN contains the supremacy clause which invalidates any other law that contradicts it. The CFRN provides for the rights, duties, powers and privileges of persons and the governments (federal and state).

Amnesty, as was for example granted to the Niger Delta militants, connotes an immunity from prosecution. Basically, it means the government, in its exclusive power of prosecution of persons for criminal offences, has decided not to prosecute a person believed to have committed one or more criminal offences. See ADEOLA v. STATE (2017) LPELR-42327(CA).

It should be noted that such a person is “believed” to have committed the criminal offence(s) because they are still presumed innocent by virtue of Section 36(5) of the CFRN until proven guilty.

The CFRN in no part recognises amnesty or immunity from prosecution to anyone whatsoever. In fact, Section 318 of the CFRN which grants immunity to the president, the vice-president, the governor and the deputy-governor only does so for the period they are still in office. They can be proceeded against once they leave office.

Therefore, if one administration in its wisdom decides not to prosecute a person for an offence they might have committed, another administration may decide to prosecute them for the same offence. Can such a person stop the subsequent prosecution on the grounds that they have been granted amnesty by the previous administration? The answer is no, and the reason is found in Section 36(9-10) of the CFRN. A person can only stop subsequent criminal proceedings against them if they can show one of three things:

1. That they have been tried and convicted of the offence or charges now preferred against them (autrefois convict: here, the facts of the present charges must be the same as the fact of the charges on which they have been convicted or must be closely related to those facts); (See IGBINEDION v. FRN (2014) LPELR-22766(CA))
2. That they have been tried and acquitted of the offence or charges now preferred against them (autrefois acquit: here, too, the facts of the present charges must be the same as the fact of the charges on which they have been convicted or must be closely related to those facts); (See AJALA v. IGP & ORS (2015) LPELR-24355(CA)) or
3. That they have been tried, convicted and pardoned of the offence or charges now preferred against them. (see FRN v. DINGYADI (2018) LPELR-46061(CA))

In all of the three instances above, the condition precedent is that the person must have been tried and convicted or tried and acquitted or tried, convicted and pardoned. In FRN v. DINGYADI (2018) LPELR-46061(CA), the Governor of Sokoto State pardoned some persons who were only found wanting by a tribunal of inquiry. The Court of Appeal held that the pardon was invalid as there had been no conviction of an offence first as required by the CFRN.

Regarding pardon, both Sections 175 and 212 of the CFRN empower the president and the governor respectively to pardon a person convicted of an offence with or without conditions. Such pardon can be total cancellation of an imposed punishment for the offence they have been convicted or conversion of the punishment ot reduction of the punishment. However, as has been stated in several cases by both the Supreme Court and the Court of Appeal, before that power of pardon, also known as prerogative of mercy, can be exercised, the person must have been convicted and sentenced first.

Therefore, if the Federal Government of Nigeria really wants to grant immunity to repentant bandits, the bandits must be convicted of and sentenced for the relevant offences first. The law allows the Federal Government to easily do this. The Attorney-General fo the Federation can prefer charges against them; the defendants and the Federal Government will enter into a plea bargain; the court will, if satisfied, pronounce the plea agreement as its judgement; and the president will exercise his power of prerogative or mercy under the CFRN. In fact, the defendants can simply plead guilty to the charges, and upon being convicted thereof, the president can pardon them. This way, no other administration can prosecute them for the offences again.

Another way to grant the bandits pardon is to amend the criminal law and create  a statutory limitation against prosecution for the relevant offences. The bandits will cease banditry until the statutory limitation is activated so that they can no longer be proceeded against.

1. Can victims of banditry file action against pardoned bandits under Nigerian law?

Whether granted amnesty or not, victims of banditry can proceed against the bandits in civil actions for different civil claims which may include: tort of false imprisonment and violation of right to liberty and freedom of movement in the case of kidnapping; tort of assault and battery and violation of right to human dignity in the case of causing physical harm to victims; deprivation of life and violation of right to life in the case of murdered victims; etc.

Succeeding in the civil actions may require the proving of commission of crimes by the defendant bandits. While the fact of pardon upon conviction may help the victims in proving their case against the bandits, this is not necessarily so, as there are several questions to be answered. A plaintiff will still have to identify the specific bandit they were involved in. See the case of OYERINDE v. BAMIGBEGBIN & ANOR (2017) LPELR-42378(CA)

1. Can victims of banditry file action against pardoned bandits under international law?

Concerning international criminal law, no, international criminal law deals with disputes between states and not persons. The crimes of the bandits are not part of those listed in the Rome Statute i.e. they are not war crimes, crimes against humanity, genocide or aggression. So, the International Criminal Court has no jurisdiction on the crimes. Similarly, the International Court of Justice has no jurisdiction as it deals with only state parties.

Concerning international human rights law, both the African Court on Human and Peoples’ Rights and the Economic Community of West African States (ECOWAS) Court have no jurisdiction as the defendant/respondents can only be a state party. The bandits are not acting as agents of any governments in Nigeria.

1. Should the president grant amnesty to bandits?

As stated earlier, amnesty is not recognised under the law. So, the president cannot legitimately grant the bandits amnesty.