The Nation Newspaper

Tag: pardon

  • Presidential pardon under the Constitution

    Presidential pardon under the Constitution

    The sudden news of grant of prerogative of mercy by President Goodluck Jonathan, to some high profile ex-convicts in the country had sparked off angry reactions from well-meaning citizens, from all walks of life, particularly the elites and the civil society groups, principally predicated on the negative implication to the purported war against corruption and the image of the country before the international community, especially for a government that prides itself as a leading bastion of civility, due process and constitutionality, in Africa.

    The grant of pardon or prerogative of mercy is a right recognised under the 1999 constitution of Nigeria, as amended in 2011, and should ordinarily, if properly exercised, be greeted with applause and gratitude to the President when such is extended to deserving person or persons who have been tried and convicted of any offence and with no pending appeal against the conviction, irrespective of the gravity of the offence or the severity of punishment meted to the offender.

    This practice dates back to the medieval times when the King as imperial potentate in exercise of his temporal and ecclesiastical powers, administered both cannon and civil laws, extolling the divine qualities of mercy and forgiveness, as precondition for salvation.

    The reality and necessity for this long standing practice seeking to temper justice with mercy was most profoundly and unequivocally illuminated by the renowned wordsmith, Williams Shakespeare, in his book, The Merchant of Venice, thus, “The quality of mercy is not strained; it droppeth as the gentle rain from heaven upon the place beneath; it is twice blest; it blesseth him that gives, and him that takes;…”

    Ever since then till date the exercise of prerogative of mercy has become very popular as a legitimate component of the administration of justice underscoring its incorporation into the laws and constitution of most civilised countries, including Nigeria, which has extant legislations and statutory enactments at the state and federal levels making ample provisions for grant of prerogative powers in favour of a convict.

    This right provided for under sections 212(1) and 175(1) & (2) of the Constitution for the Governor and the President, respectively, is legally assessable and available to all classes of convicts in Nigeria and is obtainable by a convict applying either personally or through a solicitor, or even through the prison authority where he or she is incarcerated, to a Governor or the President as the case may be, for grant of the prerogative of mercy or pardon, in his favour.

    Under the forgoing provisions of the constitution, a State Governor or the President of Nigeria has constitutional powers to grant conditional or unconditional pardon to a convict, or to substitute, reduce, commute or remit the length of sentence and/or the severity or quantum of punishment and penalty or forfeiture, imposed on that person by a court of law.

    The legal effect of a pardon is very profound and far reaching to a beneficiary, as it exempts, frees and releases the convict of all liabilities or disabilities flowing from his said conviction and is therefore completely purged and cleansed of the pariah status, infamy and ignoble toga of an ex-convict under the law.

    However, as a special kind of power held in public trust by the Governor or President, it ought to be exercised with the highest sense of responsibility, probity and circumspection by the person vested with such powers.

    This is to ensure that the critical balance between the rights of the individual concerned and the corresponding right of the public to good order, decency, peace and security, is maintained, to meet the ends of equity, justice and good conscience at all times.

    The pristine quest for substantial justice and a wholesome criminal justice system is at the root of the practice of prerogative of mercy. It is therefore a product of genuine desire to remedy or ameliorate the effect of a conviction perceived not to have reasonably met the standards of justice, the rule of law and due process, having regards to the facts and circumstances of the particular case, especially, where such trials were targeted at perceived enemies of a particular government or military junta, not necessarily for any plausible infractions of the law but as a punishment for speaking the truth to power.

    State pardon is a discretionary power to be exercised judiciously and judicially and not meant to be used as an instrument of patronage for political benefactors or for self enhancement and aggrandizement but must be exercised in a reasonable manner devoid of bias and public umbrage and strictly consistent with the letters and spirit of the law and the code of conduct for all public officials.

    The fundamental obligation and primary purpose of government under section 15(5) of the 1999 constitution is the abolition of corrupt practice and abuse of power, a provision strongly reinforced in the fifty schedule to the constitution (Part 1) dealing with Code of Conduct for Public Officers. Section 1 hereof forbids any conflict of interest with official duty and provides that, a public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities.

    The president had with the approval of the Council of State, exercised the powers conferred upon him by the provisions of Section 175 of the 1999 Constitution, as amended, to extend presidential clemency, amnesty or pardon to his former boss and ex-Governor of Bayelsa State, Mr. DSP Alamieyeseigha and six others, who have been tried and convicted of various offences in the past ranging from official corruption, grand larceny to alleged coup plotting and treasonable felony by Nigerian courts.

    The propriety or otherwise as well as the real motive behind the President’s action, has generated so much furor and criticisms in the domain of public opinion, especially in the case of his said former boss and kinsman, and Mr. Shetima, the former Managing Director of Bank of the North, both of whom were convicted by the court for official corruption and misappropriation of bank funds.

    The public outrage and controversy foreshadowing the above pardon granted to corrupt politicians calls to question the government’s sincerity in its avowed determination to truly tackle the menace of corruption in the country, as the survival of the people including the government itself depends on stamping out this systemic scourge in our body politic.

    The government rather than heckle, intimidate and antagonise those opposed to its actions should instead embrace the merits of these well-meaning concerns for positive change, even in the face of emerging fresh facts that most of the beneficiaries of the pardon had earlier been pardoned by a previous regime which undermines the propriety of the entire exercise seen by many as a mere hoax or stratagem foisted on the people to achieve a predetermined end.

    • Chief Agbedo of Crown Law Chambers is based in Lagos.

  • Pardon as abuse of oath of office

    I still recall the baritone voice of one broadcaster in the Nigerian Television Authority (NTA), at the height of political activities way back in 1983. Then, whenever the chap wanted to praise the ruling National Party of Nigeria, he reminded his viewers that though members of his organisation are not politicians, they knew which side of their bread was buttered. Of course the broadcasting authority back then was a propaganda outfit of the ruling NPN. A public relations department if you prefer. Such thoughts came to my mind as the news spread that President Goodluck Jonathan has granted presidential pardon to his political mentor and kinsman, Diepreye Alamieyeseigha, in exercise of his constitutional powers.

    As the President’s aide, Doyin Okupe, tried to justify the president’s action, it once again donned on me that despite the provisions of the oath of office and braggadocio of swearing to act in the best interest of the country, public power in our clime is essentially for the advancement of private interest dressed in the garb of public interest. To douse the putrid odour of the Alamieyeseigha’s saga, the President sought correlated interests, and willy-nilly dragged them in, to deodorise this political infamy. But as it must be clear to most political observers, President Jonathan thoroughly dose not care, when he has a personal interest to advance. That is why, for example, despite the huff and puff of his political opponents and critical stake holders, certain ministers are untouchable in the present dispensation.

    The President in granting the pardon presumably acted within the precept of Section 175(1)(a) of the 1999 constitution which provides that: ‘The President may grant any person concerned with or convicted of any offence created by an Act of the National Assembly pardon, either free or subject to lawful conditions’. To exercise this power, the President is enjoined to consult with the Council of State, which he did. Also in Sub-section 3, he is enjoined to consult the same Council of State, when he wants to exercise his powers ‘in relation to persons concerned with offences against the army, naval or air-force law or convicted or sentenced by court-martial’. A cursory look at the provisions of Section 175 ordinarily shows the extensive powers of an executive President. Under the section, he also has powers to even tamper with or mellow down a conviction or sentence or damages handed down by a court. But, I believe that as extensive as the powers seem, the powers of the President as created by the constitution can only be exercised in tandem with his oath of office, otherwise he can be accused of abusing his powers.

    So, Section 175 and indeed, any provision of the constitution must be exercised so as not to jeopardise another provision of the constitution. Thankfully, the President took the oath of allegiance in the Seventh Schedule to the 1999 Constitution. A paragraph of the oath, which the President took, provides: ‘That as President of the Federal Republic of Nigeria, I will discharge my duties to the best of my ability, faithfully, and in accordance with the constitution of the Federal Republic of Nigeria and the law, and always in the interest of the sovereignty, integrity, solidarity, well-being and prosperity of the Federal Republic of Nigeria …’ (Emphasis mine). Further down, he also swore: ‘that I will not allow my personal interest to influence my official conduct or my official decisions … ’ (Emphasis mine)

    A combined effect of the emphasised portions of the President’s oath of allegiance shows clearly, that while the President has enormous executive powers, he is under oath, not to turn the country into a personal fiefdom. For instance, the President cannot decide to appoint his family members as the cabinet ministers or high level government officials in exercise of his powers under Section 171 of the constitution, among his other presidential prerogatives. Apart from the political consequences, he will be offending his oath of office and the principles of federal character, which provides for ‘proportional sharing of all bureaucratic, economic, media and political posts at all levels of government’.

    Interestingly, Mr President some days ago publicly admitted that Mr Alamieyeseigha is his political benefactor, and few days after granted him presidential pardon over his conviction for gross corrupt practices. By that action, the President has allowed his ‘personal interest to influence his (my) official conduct or his (my) official decisions…. ’ Again, the President, the National Assembly, the Supreme Court in A. G. Ondo State vs A. G. Federation, and, indeed, the press and general public have all agreed that corruption has become the greatest challenge to the integrity, solidarity, well-being and prosperity of our dear country. By the President’s action in pardoning a convicted corrupt official in the face of these acknowledged national challenges, the President has clearly abused his oath of office and his executive powers.

    As many have argued, the pardon granted Alamieyeseigha has dealt a severe blow to the integrity of our country; and pooh-pooh the so called war against corruption. To show how seriously Mr President’s action of elevating his personal interest to influence his official conduct has dented our image within the international community, a United States’diplomatic official has against diplomatic necessities, commented on the depravity of this corruptly permissive conduct of the President. The inclusion of those convicted for plotting a coup against a government that was also illegitimate among those pardoned cannot justify an act that clearly undermines the integrity of the country. As the President may now realise, this political gamesmanship has clearly backfired. But he can find cold comfort in a similar action of former President Olusegun Obasanjo, when as President he got the charges of corruption against his own kinsman quashed.

     

  • The Alamieyeseigha pardon

    The Alamieyeseigha pardon

    I do not expect President Goodluck Jonathan to reverse or revisit the executive clemency he granted his former boss, former Bayelsa State Governor Diepreye Alamieyeseigha, last week. He will ride out the storm of controversies generated by the pardon and other pardons; and he will likely grant a few more, equally or surpassingly controversial, before his time in office is over. So, let us ignore the controversies surrounding the pardons, such as the presidency’s poor recordkeeping that led to the late Gen Shehu Yar’Adua being pardoned twice, or the controversies swirling around the list of the pardoned, which we all know was expanded probably as an afterthought to legitimise the main beneficiary of the Jonathan pardons. Let us instead focus our attention on the pardon granted the former Bayelsa governor and the undue emotionalism surrounding the issue.

    It is a given, as former United States president Bill Clinton argued in 2001 when he tried to defend the 140 pardons he granted on his last day in office, that “The exercise of executive clemency is inherently controversial.” I, therefore, do not expect that Jonathan would grant pardons without eliciting some controversies or attracting attacks, some of them vicious. Nor do I expect that considering the general nature of pardons, they would be extended only to less grievous offences or less recognisable individuals. I have no problem with the lawfulness of the pardons Jonathan has granted, though it is a different matter altogether whether he adhered to the rules and regulations governing the exercise. But whether the president followed established procedures or not, he has the constitutional right to grant pardon, irrespective of the nature of the crime, and whether it is murder or fraud.

    Unlike the United States that has a copious history of controversial pardons and commutations, Nigerian leaders have been fairly laid-back, even stingy like Preisdent Barack Obama, in granting pardons. Surprisingly, it is the same US that first took potshot at Jonathan’s pardons. According to a twitter posting by a US embassy spokeswoman in Nigeria, Deb Maclean, the US was deeply disappointed by the pardon granted Alamieyeseigha. This was followed by another terse statement from a US State Department spokeswoman, Victoria Nuland, who warned ominously that the pardons could cause the US to reassess the kind of assistance it granted Nigeria in the latter’s anti-corruption war. She, however, stressed that no sanctions or punitive measures were being undertaken against Nigeria. However, Nigeria has in turn deplored the meddlesomeness of the US in its internal affairs and even invited the US Deputy Chief of Mission in Abuja to receive the Nigerian protest.

    Interestingly, the Alamieyeseigha pardon is not even half as controversial as some of the pardons and commutations granted by Clinton. In the case of Clinton, and with references to the clemency granted the oil mogul, Marc Rich, and the commutation of the sentences of 16 members of the Puerto Rican terrorist organisation, FALN, who set off bombs in New York and Chicago leading to the death of six people and maiming of dozens of others, a bitter US Congress investigated the pardons but found no wrongdoing. Marc Rich had been jailed for tax evasion to the tune of $48m and 51 counts of tax fraud. Like the Marc Rich case, the Alamieyeseigha pardon is without prejudice to any ongoing investigations or future fraud cases the authorities might bring against him.

    But as Clinton wrote in 2001 in his defence of the pardons he granted, “The reason the framers of our Constitution vested this broad power in the Executive Branch was to assure that the president would have the freedom to do what he deemed to be the right thing, regardless of how unpopular a decision might be. Some of the uses of the power have been extremely controversial, such as President Washington’s pardons of leaders of the Whiskey Rebellion, President Harding’s commutation of the sentence of Eugene Debs, President Nixon’s commutation of the sentence of James Hoffa, President Ford’s pardon of former President Nixon, President Carter’s pardon of Vietnam War draft resisters, and President Bush’s 1992 pardon of six Iran-contra defendants, including former Defense Secretary Weinberger, which assured the end of that investigation.”

    I have no doubt that Jonathan acted within his powers. However, he was not as altruistic as his aides seemed to suggest. His prime objective, it seems to me, is driven by both political calculations for 2015 and the fact that Bayelsa and a large swathe of the South-South are covered by an ethical fog influenced by Niger Delta militancy and decades of appalling degradation of the oil regions. Both the ethical fog and the environmental degradation suffered by the oil regions, as well as the contumaciousness that these have unleashed, all but guarantee that the definition of financial cum political morality in Nigeria will vary from one region to another. Expectedly, Jonathan is not immune to the influences of his background, nor has he been able to extricate himself from the sometimes narrow and short-sighted uses of presidential powers and the even narrower cultural confines and prejudices of his adolescent years.

    Critics have slammed the president for pardoning Alamieyeseigha, thereby jeopardising his government’s anti-corruption war. But the criticisms ignore two important facts. One is that the former Bayelsa governor, who is sometimes referred to as governor-general of the Ijaw, is immensely popular in his region. Jonathan is not unmindful of that popularity, and he apparently seeks to take political advantage of it. Even in the days when Chief Olusegun Obasanjo troubled Alamieyeseigha, militants came to his rescue by denouncing the rest of the country and the media for singling out their hero for abuse. He had not done a fraction of what others did, his supporters grumbled.

    Second is that, except I err gravely, the Jonathan government has never really embarked on any anti-corruption war, whether in part or in whole. He has not even verbally campaigned against corruption, partly because he is not as hypocritical as the Obasanjo government that either selectively campaigned against corruption, using his enemies as case studies, or believed that corruption was something others, particularly non-PDP members, indulged in. Unlike Obasanjo who could defend good and bad with equal passion and plausibility, Jonathan is realistic enough to appreciate that the present configuration of Nigerian politics does not conduce to a corruption-free society or any high-sounding moralising campaign. His boyish innocence makes him fundamentally uncomfortable with any anti-corruption sloganeering.

    Neither the political uproar nor the moral outrage that has visited the Alamieyeseigha pardon will produce presidential contrition. The reason is not because the constitution is defective or that it grants more powers to the president than he can judiciously use. Indeed, it is for people like Alamieyeseigha that the clemency provision is interred in our constitution. If not Jonathan, then some other president will use the provision on a hypothetical tomorrow to achieve some controversial ends. The reason the president will not be contrite is also not because his natural tendency is to underpin his policies and actions with questionable ethics, for he seems altogether shorn of any ethics, preferring instead to moralise on the minor political and constitutional issues of the day while dodging the great issues capable of defining his presidency.

    Rather than seethe with anger on an anti-corruption war the president has shown absolutely no inclination to fight, seeing that no one could imbue an inexistent war with a grand notional purpose, the country should instead concentrate on the more nuanced national crisis that the pardons have seemed to underscore. That national crisis centres on the poor judgement Nigerian presidents have exhibited over the decades. Jonathan could have waited until the closing days of his presidency, whether he wins reelection or not, to grant as many controversial pardons as pleases him, but he chose to do it now perhaps because of political desperation or pressure. The 2015 polls will show whether he has shot himself in the foot or not. He has been accused of half-heartedly waging war on corruption; but by pardoning his former boss, he goes beyond half-heartedness to confirming he has no interest in any war except one that would furnish him victory in the polls at all cost.

    I see no point in all the uproar over the pardons, except to note the depressing fact that it manifests the president’s poor judgement and perhaps incapacity to take great decisions. In this controversy of state pardons, Jonathan will conveniently and excusably hide behind the constitution. It is in fact those who rail against the president’s pardons that inadvertently give the impression they are vengeful and unforgiving, and confirm why Nigeria’s penal system and penal institutions pursue a criminal to his grave rather than reform him. The uproar also shows that Nigerians have only one view of a criminal: that once he is crucified by the law or by public emotions, his soul is forever damned. If the president has good PR managers, he will turn the table against his critics. But if the critics emphasise the point that the president’s choices are nearly always fallible, they may not be saying anything new, but they will be reiterating the sombre view that whenever Jonathan displays firmness and shows initiative, he unalterably fails to rise to the occasion.