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Legal And Moral Implications of Granting Pardon to Ex-Convicts and Serving Prisoners

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By Chief Mike Ozekhome, SAN, OFR, FCIARB, LL.M, Ph.D, LL.D.

INTRODUCTION

Crimes are vices that should not be tolerated in any society. They are offences against the state and are punishable under the law. The essence of punishing people convicted of crimes is to serve the criminal just desert, make restitution to the victims and deter other people from engaging in criminal activities, amongst others.

Sometimes, the President and Governor of a state may decide to show the milk of human kindness to people already found guilty of crimes. This practice is, respectively, sanctioned by sections 175 and 212 of the Constitution of the Federal Republic of Nigeria, 1999, as altered. This practice is even Biblical. For example, Pontius Pilate wanted to grant pardon to Jesus Christ. But, when the mob protested, he released Barnabas instead of Jesus, and washed his hands off the baying at the blood of an innocent man already exonerated by him and King Herod, in preference of Barnabas who had been accused of treason and other heinous crimes (Mark 15:6). Pardon is an unusual show of kindness to people whom the State has already condemned for certain ignoble acts they committed.

Pardon is a loud statement. The meaning of the statement is determined by the context and circumstances of the act. For example, in a state where there is a high record of kidnapping and cyber fraud, showing mercy to people convicted of kidnapping and cyber fraud could be construed as State connivance, or an impetus for offenders to commit more of such crimes. Nigeria, for example, is rated the 149th out of 180 most corrupt countries in the world, and the second most corrupt country in West Africa, by Transparency International (TI), under its anti-Corruption Perception Index. Granting pardon to people convicted of corrupt practices, whether still serving or having served, may be construed as a tacit approval of such corrupt practices. This becomes more worrisome under a government which made fighting corruption one of its tripodal mantras.

MEANING OF PRESIDENTIAL PARDON

A pardon is an executive order granting clemency for a conviction. It may be granted “at any time” after the commission of the crime.

This right of pardon is granted to the Governor and the President, respectively, under sections 212(1) and 175(1) and (2) of the Constitution, and is legally available to all classes of convicts in Nigeria. It can be obtained by a convict who applies to a Governor or the President, as the case may be, for grant of the prerogative of mercy or pardon in his favour, either personally or through a Solicitor, or even through the prison authorities where he or she is incarcerated and is serving term of imprisonment.

For the purpose of exercising this power, section 153(1)(b) of the Constitution establishes the “Council of State,” which advises the President in the exercise of his prerogative of mercy. The council, as a government agency, is composed of high- heeled and distinguished Nigerians who are believed to be the have full complement of the country’s ethos.

Thus, although the President’s powers in this area are not subject to the strict approval of the Council of State, he cannot act unilaterally, whimsically, capriciously and arbitrarily. The usage of the word ‘shall’ in the phrase, “The President’s powers under paragraph (1) of this section shall be utilized by him after consultation with the Council of State”, demonstrates this. The exact legal force that the advice of the Council of State bears, i.e., whether it should be taken as limiting the President’s powers of pardon, or whether it is merely a courteous procedure to abide by, is a thorny issue amongst analysts. The President’s obligatory gazetting in the Official Public Notice of the Government of the Federation concludes the pardoning process. The President, including the Governor, by extant constitutional provisions, have no constraints or hurdles whatsoever on whom they can grant pardon to.

State pardon is therefore a discretionary power that must be utilized with utmost caution and must accord with the law. It must never be used as a tool of political patronage, nepotic purposes, monetary benefits, or for self-aggrandizement. It must be used in a fair and impartial manner, free of prejudices, bias and public disapproval. It must be strictly in accordance with the best interest of the nation, and the letter and spirit of the Constitution and the code of conduct applicable to all public officers in Nigeria.

THE LEGAL CONSEQUENCES OF THE GRANT OF A PRESIDENTIAL PARDON

The Legal effect of presidential pardon was expatiated upon in EX-PARTE GARLAND 71 U.S. 333 (1866) thus:

“The inquiry arises as to the effect of a pardon, and on this point the authorities concur. A pardon in the eye of the law, cleanses the offender and make him as innocent as if had never committed the offence”. Such a convict is like Naaman the leper who deeped himself in the River Jordan and became cleansed of his leprosy. In FALAE V OBASANJO (1999) 3 LLER 1(CA), the Court of Appeal held that a pardon relieves the person of all sins. Musdapher, JCA (as he then was) 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”.

In the same vein, the court in OKONGWU V STATE, (1986) 5 NWLR (Pt. 44) 721, held that a free pardon had the effect of erasing “all suffering, consequences, and punishments whatsoever that the said conviction may ensure, but not to wipe out the conviction itself” from the pardonee. Thus, even where the fines have been vacated, the conviction will forever remain on the record of the court. Thus, even if a person has been pardoned, he can still legally appeal his conviction.

This was why in OKONGWU V STATE (1986) 5 NWLR (Pt. 44) 721, it was held that a free pardon has the effect of blotting out “all suffering, consequences, and punishments whatsoever that the said conviction may ensure, but not to wipe out the conviction itself”.

The 1999 Constitution in sections 175 and 212, have made provisions for the grant of pardon, respite, or clemency to any person, either free, or subject to lawful conditions as may be determined by the President or the Governor, respectively. Such pardon could be for an indefinite or specified period. They could substitute a lesser form of punishment or remit the whole or any part of such punishment, or substitute a less severe form of punishment. While under section 175 (2), the President shall carry out such an exercise after consultation with the Council of State, the state Governor shall carry his out “after consultation with such advisory council of the State on prerogative of mercy as may be established by the law of the State”.

There is the more worrisome legal conundrum in the entire presidential pardon as it pertains to the two Governors. This is whether the president could have legally granted pardon to former Governors Joshua Dariye and Jolly Nyame of Plateau and Taraba States respectively, having regards to the fact that both men were convicted for offences allegedly committed between November 2000 and May 2007. The offences under which they were tried and convicted fall under State laws which took place after the promulgation of the1999 Constitution during which time they were Governors. Specifically, they were tried and convicted under sections 115,119 and 309 of the Penal Code Act, Cap 532, LFN, 1990, obviously an existing State law within the meaning, import and true purport of sections 315(1)(b) and 318 of the 1999 Constitution. This Act which became effective as a state law is applicable to the FCT and the Northern States. This Penal Code Act ,not being a federal legislation of the NASS, became an existing state law deemed duly enacted by the 19 Northern States by virtue of section 315(1)(b) of the 1999 Constitution. It becomes clear therefore that only the Governors of Plateau and Taraba States could have legally and rightly granted pardon to Dariye and Nyame,invoking section 212 of the Constitution; and not Mr President under section 175 of the Constitution.

The doctrine of separation of powers ably propounded in 1748 by Baron de Montesque and which is accorded constitutional imprimatur in sections 4,5 and 6 of the 1999 Constitution operate here. Should anyone challenge their pardon, an interesting constitutional issue would have been thrown up for constitutional pundits and legal analysts like yours sincerely. Let us now look at the moral implications.

THE MORAL IMPLICATIONS OF THE PRESIDENTIAL PARDON

The moral implications of granting pardon to people may send different messages and signals to different people. The messages could either be seen as genuine forgiveness, connivance, condonation, conspiracy, or impetus, etc.

There is this aphorism often credited to Benjamin Franklin, to the effect that “to err is human, to forgive is divine and to persist is devilish.” This saying is true. It is Biblical that all have sinned and come short of the glory of God. Jesus also admonished that if ‘we’ say that ‘we’ have no sin, ‘we’ make Him (Christ) a liar and the truth is not in us. In the case of a woman caught in the act of adultery brought to Jesus Christ for just determination, Christ demonstrated forgiveness by challenging the mob to first cast a stone at the woman if they had no sin. Shortly after the mob departed, Jesus forgave the woman and commanded her not to go back to her sinful lifestyle. Christ gave this woman who was about to be stoned to death a second chance to mend her ways.

Pardon is however an exercise that should be exercised sparingly after due consideration of the fuller implications and after full contrition and penance on the part of the offender. For example, during the military junta, some human rights activists were prosecuted unfairly and executed, some under retroactive laws. Such was the unforgettable grieving fate of the trio of Bartholomew Owoh (26), Lawal Akanni Ojulope (30) and Benard Ogedegbe (29), who were accused of drug peddling, but whose execution was sanctioned by Major General Muhammadu Buhari (rtd) as military ruler. This, notwithstanding the intervention the heart-rending pleas by Playwrites Wole Soyinka, Chinua Achebe and J.P Clarke. Granting pardon to people should be viewed by the society as a recognition of a cause worth celebrating, not offensive and fouling the air.

This brings us to the case of Senators Joshua Dariye and Jolly Nyame, both former Governors, who had been convicted and imprisoned for stealing billions of naira from the coffers of their state treasuries and thus impoverished the very people they were elected to govern. These individuals were the Chief Executives of their states. They had sworn oaths of office and allegiance to the Federal Republic of Nigeria and vowed that they would govern their states with utmost good faith. However, they betrayed their people by stealing from them. They breached the trust reposed in them. None of them admitted their guilt or wrongdoings until the courts found them guilty, up to the Supreme Court. As a matter of fact, Joshua Dariye was a sitting Senator when the Supreme Court affirmed the 10 year jail term earlier passed on him. What then is the basis for granting pardon to these individuals in a country where corruption is the bane and struts around imperiously like a peacock?

I had noted severally since 2013 (after my release from a 3 week horrific ordeal in the hands of kidnappers), that we must kill corruption which had become the 37th richest and most potent state in Nigeria, before it kills us. By granting pardon to these treasury looters, Buhari is reviving, nurturing and watering corruption with State powers.

When former Bayelsa State Governor, Diepreiye Alamieyeigha (DSP) whom I had defended throughout his State-sanctioned ordeal was granted pardon by former president Goodluck Ebele Jonathan, I wrote and justified it. I did so for the following reasons: DSP had fully served his term of imprisonment after his conviction. He had earlier been pardoned by late president Yar’Adua who later died before consummating the pardon, until Jonathan succeeded him under the “doctrine of necessity”. As noted by former Attorney General, Mohammed Bello Adoke, at page 62 in his 270 page book, titled ” The Burden of Service”, DSP had also shown contrition, remorse and repentance. He had also earlier been pardoned by Yar’Adua, though not gazetted before his death. DSP had also helped greatly in brokering the peace process that led to amnesty in the restive Niger Delta region that halted oil production. This in turn led to stability in the area and reduce pipeline vandalism, kidnapping of expatriates, and thus improved oil production which had plummeted to a state of nadir, leading to national ruckus and impoverishment. He had evidently demonstrated that he believed in one stable Nigeria.

Perhaps more significant is the fact that Alamieyeigha was gravely ill with life-threatening ailment, from which he later died barely 2 years after the pardon was granted him.DSP had thus earned the state pardon after the Council of State recommended approved it. The same cannot be said of these two Governors who were still serving their jail terms.

Thus, the act of granting amnesty or pardon though discretionary, this discretion must be exercised judiciously and in the best interest of the country, so as not to create doubts in and dampen the confidence of, the citizenry in the national moral fabric, and in the fight against corruption.

So, when the Council of State recently authorized the pardon of 159 convicts, including Senator Joshua Dariye of Plateau State and ex-Governor Jolly Nyame of Taraba State, who were both imprisoned for stealing N1.16 billion and N1.6 billion respectively, many Nigerians justifiably showed anger, because these two political leaders had been duly tried and convicted for stealing money belonging to their respective states. The courts in Nigeria were unanimous in their verdicts that they were corrupt and had corruptly enriched themselves while serving as governors of their respective states. They were still serving their sentences.

These men had betrayed the trust their people reposed in them by stealing money meant for the development of their respective states while serving as their chief executives.

Many Nigerians thus viewed the action of Mr president in granting them pardon as recommended by the Council of States, which is a body peopled mostly by friends and political benefactors or allies of the convicts, as an action taken in bad faith. This is more so that President Buhari had assumed office on the goodwill of the Nigerian people, largely fuelled by his avowed commitment to fight corruption in all its ramifications, to a standstill.

The purpose of criminal prosecution is to secure justice, not only for the accused, but also for the victims of crimes and the State; and to some extent get reparation and restitution for the victims, while deterring others from going the same route.

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?

The government budgets huge sums of money for the prosecution of such accused persons from the tax players’ sweat; and if after the rigorous period of trial and subsequent conviction, the guilty are simply let off the hook in such a brazen manner, the little remaining lean hope the citizens have in the system is further diminished.

I dare say that in these two instances, both the President and the Council of State goofed and abused their undoubted constitutional powers and privileges.

A constitutional issue as volatile as this could have been better managed if the minders of the president had told him the embarrassment this could cause the government in the estimation the comity of nations. And it is doing just that.

This brazen abuse of power will definitely ricochet and erode the confidence of our international partners in the fight against corruption. It will also dampen the morale of the agencies fighting corruption, such as EFCC, the Nigeria Police Force, and the ICPC, amongst others.

This singular ill-advised act of abuse of power will also definitely embolden political thieves and unrepentant pilferers of our national commonwealth. It shows that once you are a friend of the President or a member of his political party, or his acolyte and supporter, you can get away with any crime. In other words, in Nigeria, corruption surely pays!

With this action, the fight against corruption appears forlorn and a mirage. What is the essence of spending scarce resources in the name of fighting corruption if at the end of the day the convicts will be pardoned and stroll into their palatial homes in splendour in this ugly manner?

Granted that the constitution gives the President and the Governors the power of prerogative to pardon criminals in deserving circumstances, must it be done in the vulgar way and manner the instant case was handled?

In fairness to the president, not all the 159 convicts and ex-convicts granted presidential pardon are politicians. But, the most prominent of them are the two former Governors. That is what has led to the national rockus,bedlam and hoopla. This is because it could be argued ( and rightly too), that the main essence of the last meeting of the Council of State was to give imprimatur to, and grant pardon to the two political heavy weights, while making up the number with some insignificant lightweight ones, using garnished veneer and sleight of hand .

The president by so doing has certainly violated the provisions of the Constitution and his oaths of office and allegiance to defend the Constitution. This recent pardon, in my humble view, is the worst way to fight corruption. It will further water, nurture and elevate corruption to a fundamental objective and directive principle of State policy. It is so sad and counterproductive.

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Ex-Oyo Governor, Victor Olunloyo, Dies at 90

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A former governor of Oyo State, Dr. Victor Olunloyo, is dead.

According to a statement by his family on Sunday, he died a few days before his 90th birthday.

The statement titled ‘Victor Olunloyo goes home’ was signed by Oladapo Ogunwusi on behalf of the family.

It read, “With a heavy heart but gratitude to the Almighty, we announce the passing into glory of Dr. Victor Omololu Olunloyo, former governor of Oyo State, mathematician and engineer and renowned technocrat, a few days before his 90th birthday.

“The Balogun of Oyo and Otun Bobasewa of Ife, Dr. Olunloyo was first Rector, Ibadan polytechnic and first Rector, Kwara State Polytechnic among other notable appointments.

“His long record of service to the nation and humanity is a source of pride to his family and associates even as we come to grip with this devastating event.

“The Olunloyo family will appreciate the understanding of the press and the public as they commence efforts to give him a befitting burial.

“Even from everlasting to everlasting, He is God.”

About a year ago in April 2024, the rumour of the death of the elder statesman was reported by some news platforms.

But speaking with The PUNCH correspondent who visited his Molete residence in Ibadan, the state capital, he debunked the rumour, saying he was hale and hearty.

“I’m still here, not yet gone,” he declared then.

He also expressed worry over the rumour and asked who would live forever, stressing, “Those breaking death news and the person presumed dead will all die one day.

“I’ve been lucky. My father died at 42, while my mother died at 102. I’m 89. I’ve crossed the expected life age.”

The elder statesman also illustrated how the rumour of his death hit several news platforms on June 7, 2022.

He noted that the rumour mongers claimed that he died at the University College Hospital, Ibadan.

A few days later, the family issued a statement, declaring that he was not dead but suffering from old age ailment and asked Nigerians to pray for him to survive the health complications.

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Umahi Apologises to Tinubu, Lagosians, Denies Knowledge of Bridge Closure

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The Minister of Works, Senator Dave Umahi on Thursday, said the closure of Independence Bridge in Lagos for urgent rehabilitation of the collapsed retaining wall was made without his knowledge or authorization.

Umahi said this while apologising to Lagos residents and President Bola Tinubu for the disruption caused by the sudden closure of the bridge on Wednesday.

Umahi who spoke when he toured the bridge in Lagos said: ” Unfortunately, when the bridge was to be closed, I was not informed. It is very unfortunate because for a bridge to be closed, especially in Lagos, as has been the tradition, I should be informed as the minister.

“We should also have studied the implication of it even in an emergency situation. We would have deployed emergency evaluation of the implication of closing the bridge.”

Umahi warned that controllers of works and engineers would face disciplinary action if such an incident would happen again.

“I use the opportunity to warn all controllers and engineers all over the country. Never you close a road or close any bridge without running through the permanent secretary, who will seek for permission from the honourable minister of works,” he said.

The minister acknowledged the efforts of Lagos State Government in managing traffic flow during the closure.

He also took responsibility for the error, saying: “I take responsibility for it, even though I did not order it, but every action by any staff of the ministry of works, I take responsibility for it.”

Umahi said that the closure, which caused significant traffic congestion, was avoidable.

He said: “If we were to do this properly, there would have been a different kind of method deployed and it wouldn’t have necessitated the total closure.”

According to him, even if closure was necessary, it would have been done in a way that it would take three days: Friday, Saturday, Sunday, and necessary remedial work would have been put in place.

“What we are doing now is to restore the bridge temporarily within the next three days. By Sunday, this place will be totally open.”

He added that a permanent solution would be implemented after a two-week assessment.

“Then, after two weeks, we will look at the settlements, and then we will take out three days to put the permanent structure. That is what we are going to do,” he said.

The minister emphasised the competence of the contractor handling the project, Build Well.

“Build Well is a reputable company, and they have been restoring a lot of failures on our bridges in Lagos, some of them 53 years old.

“Some bridges’ spans have been lifted, especially Eko Bridge, Marina Bridge, and even the Lagos-Ibadan Bridge. They are also intervening in all of them,” he added.

The minister also said that the design of the bridge would be varied to address the emergency situation.

He said: ” The design will be varied according to the emergency situation we have on ground, and the contractor is going to cooperate with us.”

He pledged to personally oversee the restoration efforts, saying, “I am not going until the bridge is fully restored by Sunday, we will work day and night to restore it, and then we will evaluate it.”

The bridge was initially closed on April 1 for essential maintenance and rehabilitation works, with the government planning to complete the repairs by May.

NAN

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Communal Clashes: Adeleke Threatens Royal Fathers with Dethronement

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Osun State Governor, Senator Ademola Adeleke, has threatened stern state action against traditional rulers of Ifon, Erin Osun and Ilobu communities if they fail to sustain current peace, and de-escalate the crisis in their communities.

The Governor issued the warning against the backdrop of online reports that some faceless groups across the conflict areas are planning another round of attacks.

“In the midst of sallah celebrations, I got reports of some people planning another round of conflict around Ifon, Ilobu and Erin Osun towns. The security agencies have tightened surveillance to ensure no attacks take place.

“The security agencies are also speeding up the interrogation of key chieftains and actors in the conflict. I will remind top leaders of the towns that the peace undertaking they are signing are not for joke. They will be held accountable. There will be accountability before the law.

“The curfew we relaxed was on humanitarian grounds. As a compassionate government, we know many innocent people are suffering because of the evil agenda of a few elements across the conflict areas. Any attempt to exploit the adjustment of the curfew for renewed violence will be met with full re-imposition of the 24-hour curfew.

“Additionally, I will remove from office, any traditional ruler where violence recurs. This card is on the table. Royal fathers of each town must call their subjects to order. I will wield the big stick. Enough is enough”, the Governor was quoted as saying in the statement.

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