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PRESIDENTIAL POWER OF PREROGATIVE MERCY – Umar Salman Adeyemi

The Blacks 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 such as the President in respect of federal offences and the Governor in respect of State offences.

Presidential power of prerogative mercy is captured in section 175 of the Nigerian Constitution, (1999 as amended). However, in strict constitutional jurisprudence, the exercise of pardon power amounts to interference by the executive with the exercise of judicial power. This is termed to be in breach of the sacred doctrine of separation of powers. However, such interference would be allowed when authorized by the same Constitution that provided for the doctrine of separation of powers. Presidential pardons are by design, a check upon the occasional excesses and misjudgments of the judiciary. It exists to protect citizens against possible miscarriage of justice, occasioned by wrongful conviction and excessive punishment or where, in the interest of social and political stability and peaceful co-existence, it is necessary to show mercy. Nevertheless, it appears that in recent times, this power has, in practice, become a personal prerogative of the President, a power used to protect the ruling political class for obvious political reasons to satisfy parochial interests.

The recent exercise of presidential power of pardon by President Muhammadu Buhari by granting pardon to Joshua Dariye and Jolly Nyame who are former Governors of Plateau State and Taraba State respectively has rekindled the discussion on the uses and abuses of the pardon power. This pardon was also extended to 157 others. Though some were not express pardon; we have those who had their punishment lessened from reduction in the jail term to reversal of punishment from death roll to life imprisonment. Joshua Dariye, a former governor of Plateau State (1999-2007) under the Peoples Democratic Party, was sentenced for stealing #2.7B of the State’s funds while Jolly Nyame, a former governor of Taraba State (1999-2007) under the Peoples Democratic Party was sentenced for stealing #1.6B of the State’s funds. The exercise of prerogative power to pardon individuals found guilty of grievous charges has been described as an abuse of power not only in Nigeria but also in some advanced countries of the World such as the United States of America. For example, former American President, Donald Trump granted pardon to Joe Arpaio who was a former sheriff of Maricopa County, Arizona in July 2017. Arpaio was found guilty of criminal contempt for defying a judge’s order against prolonging traffic patrols targeting immigrants. Also, the pardon by President Goodluck Jonathan of Chief D.S.P. Alamieyesigha, former Governor of Bayelsa State, convicted of several corruption charges, is another controversial exercise of presidential pardon power.

In most cases, when this pardon is politically motivated, it is clearly an open endorsement of the crimes and charges for which such persons granted pardons were convicted. This therefore encourages the crime of corruption and other offences especially by the ruling class at the expense of providing basic needs to the citizenry. Also, this singular act has rubbished the painstaking efforts of the Anti-Corruption Agencies such as the ICPC, the EFFC and in fact the Judiciary in prosecuting such cases. What about huge amounts of money spent by government on those cases? Such pardon is an insult to the sensibility of all Nigerians because one of the major functions of government has captured in Article 15 of the Nigerian Constitution (1999 as amended) is to eradicate corrupt practices and this present government under President Muhammadu Buhari rode to power on the campaign promise of fighting corruption. One therefore wonders if this pardon was done in good justice to national psyche especially at a time when corruption has become cancerous and cankerworm to the extent that the country is presently adjudged to be one of the most corrupt nations in the world according to Transparency International. This is coupled with growing concerns over the pardon of convicted Boko-Haram Terrorists decorated as ‘repentant terrorists’ in the hands of whom scores of lives have been lost and many innocent citizens internally displaced due to their senseless acts of terror. This has also led the country to be ranked as the third most terrorized nation in the World according to Global Terrorism Index report of 2020. The essence of punishment is to serve as deterrence. With this pardon granted to the two ex-Governors, it means they have been absolved of all corruption charges for which they were initially found guilty from the trial courts through to the apex court of the land. These two former Governors can now walk freely unhindered. In fact, they can contest elections because with the pardon, they are no more ex-convicts.

As a way forward, it is high time the National Assembly examined thoroughly, the provisions of section 175 of the Nigerian Constitution (1999 as amended) with regards to the Presidential Power of Prerogative Mercy in order to create some checks and balances to the ways and manners at which Presidents/Governors can grant pardon to convicted criminals so as to ensure the constitutional power is not abused or misused.

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