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Presidential pardon: Constitutional amendment on prerogative of mercy

By Onyebuchi Sampson

Presidential pardon is universal and has become a ritual for heads of state worldwide. They make it a sort of fetish by granting pardons to convicts as part of activities marking their exit from power.

However, the recent case involving 159 prisoners, including Joshua Dariye and Jolly Nyame, former governors of Plateau and Taraba states, respectively, has attracted widespread condemnation.

Dariye and Nyame were jailed for stealing N1.16bn and N1.6bn, respectively. However, the National Council of State last week endorsed the pardon of Mr Dariye, Mr Nyame and 157 others serving jail terms following the recommendations of the Presidential Advisory Committee on the Prerogative of Mercy.

Although both have been in the penitentiary, as they should, their proposed pardon may be owed to the general belief that their imprisonment, to a large extent might have political, ethnic and religious undertones. Already, some interests, among them, rights groups and lawyers have raised eyebrows on its application.

For instance, human rights lawyer and former President West African Bar Association, Femi Falana, has demanded similar treatment for ‘petty thieves’ to show his disapproval to the state pardon, granted Joshua Dariye and Jolly Nyame by President Muhammadu Buhari.

The senior lawyer also threatened to challenge discriminatory treatment in court if the president failed to do as he demanded. Falana, who made the call at the 1st anniversary of Afenifere’s spokesman, Yinka Odumakin’s Lecture and Book Presentation in Ikeja, said granting pardon to convicts irrespective of the class would show fairness and equality of Nigerians before the law.

He said: “All petty thieves in our prisons should be released. Under Section 17 of the 1999 Constitution, there shall be equality and equal rights for all citizens.

“Section 42 of the Constitution says there shall be no discrimination on the basis of class and gender, so you cannot take out a few people on the basis that they belong to a category or section of the society. “I can assure you that if the government did not release others, I am going to call on lawyers whose clients are left in custody to come to court and challenge the discriminatory treatment on their clients.

“Just two weeks ago, a Nigerian was jailed for stealing N1,000 in Abuja; the accused pleaded with the judge that he had no food but the judge jailed him for six months. “When we are talking of justice and fair play, if you want to pardon some set of people, then you must also extend presidential pardon to petty thieves in the prisons.

“This is because if the big thieves are being asked to go, then they must also extend the facility to other Nigerians.”

Also, human rights and constitutional lawyer, Aham Njoku, said the thinking in the public space is that it was wrong for the President and the Council of State to have pardoned people who were convicted for corruption, The Trumpet gathered.

This, he said, is so due to the fact that most Nigerians believe that the current sorry state of the nation, ranging from infrastructural deficit to insecurity can be traced to poor political leadership occasioned by widespread corruption among political office holders. Njoku, who is also the director, Constitutional Watch (CONSWATCH), noted that the pardon negates the cardinal campaign policy of President Muhammadu Buhari and APC that they have come to fight corruption.

According to him, apart from demoralising the Economic and Financial Crimes Commission (EFCC)and other agencies fighting corruption, including judges, it sends a wrong message to the international community that Nigerian government tolerates corruption.

Rights group, the SocioEconomic Rights and Accountability Project (SERAP), also raised issues concerning the exercise of the prerogative of mercy by the President.

The group is proposing constitutional amendment to the National Assembly to reform the provisions on the exercise of the prerogative of mercy to make the provisions more transparent, and consistent and compatible with Nigeria’s international anti-corruption obligations.”

In a letter dated April 16, signed by SERAP’s deputy director, Kolawole Oluwadare, and addressed to President Muhammadu Buhari, the organisation, urged him to urgently withdraw the pardon granted to Dariye and Nyame.

SERAP urged the President to use his “good offices to urgently review and withdraw the pardon granted to former governors of Plateau State, Senator Joshua Dariye, and Taraba State, Rev Jolly Nyame who are serving jail terms for corruption.”

The organisation noted that impunity for corruption will continue as long as influential politicians escape justice for their crimes.

According to the group, the constitutional power of prerogative of mercy ought not to be an instrument of impunity. SERAP said: “The pardon power ought to be exercised in a manner that is consistent with the Nigerian Constitution 1999 [as amended], particularly the provisions on oath of office by public officers, and section 15[5] which requires your government to abolish all corrupt practices and abuse of power.

“Indeed, the presidential pardon power must be exercised in good faith, and in line with the provisions of Chapter 4 of the Nigerian Constitution on fundamental rights.” According to SERAP, “We would like your government to clarify if the pardon granted to Mr Dariye and Mr Nyame would entitle them to the return of the stolen assets already forfeited to the government.

“The pardon also constitutes an interference in the exercise of judicial power. Because the pardon appears to be arbitrary, it undermines the authority and independence of the judiciary, and access to justice for victims of corruption.” The letter, copied to the Conference of the States Parties to the United Nations Convention against Corruption, read in part: “The pardon is clearly inconsistent and incompatible with the requirements of the Nigerian Constitution, and the country’s international obligations including under the UN Convention against Corruption. “Presidential pardon for corruption cases is inconsistent with the rule of law, and the public interest, as it undermines the principle of equality before the law. It will undermine power.’

Similarly, article 26 of the UN Convention against Corruption requires your government to ensure ‘effective, proportionate and dissuasive sanctions’ in cases of grand corruption.

“Article 26 of the convention complements the more general requirement of article 30, paragraph 1, that sanctions must take into account the gravity of the corruption offences. “SERAP notes that in your inaugural speech on May 29, 2015 you stated that, ‘We are going to tackle pervasive corruption head on. Nigerians will not regret that they have entrusted national responsibility to us.

“However, the latest Transparency International’s Corruption Perception Index shows that Nigeria scored 24 out of 100 points, and ranked 154 out of 180 countries surveyed, falling back five places from the rank of 149 in 2020. This places Nigeria as the second most corrupt country in West Africa.

“The pardon power, if properly exercised, can help to protect citizens against possible miscarriage of justice. “SERAP therefore urges you to urgently withdraw the presidential pardon granted to Mr Dariye and Mr Nyame, and to propose amendment to section 175 of the Nigerian Constitution that will make the exercise of the power to pardon more transparent and consis,tent and compatible with the country’s international obligations.

“Any proposed amendment should also empower the citizens to challenge the legality of any arbitrary exercise of the power of prerogative of mercy,” it noted.

public confidence in your government’s fight against corruption, and the justice system. “SERAP is concerned that while the pardon power is routinely exercised to shield influential politicians and politically exposed persons from justice and accountability, ordinary people who have committed petty offences but with no money or influential politicians to speak for them, languish in prisons and are rarely considered for pardon.

“While there is no doubt that Section 175 of the Constitution vests wide discretionary power in the Nigerian president to grant pardon, it does not stipulate the conditions under which such power should be exercised. “However, when section 15(5) of the Constitution is read together with the oath, it would seem to impose some ethical conditions on you to ensure that the exercise of the discretionary power of the prerogative of mercy is not such that it will encourage corruption or impunity of perpetrators. “Mr Dariye and Mr Nyame should have been allowed to complete their jail terms.

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The exercise of the presidential pardon in their cases would seem to be unfair and undeserving. “The investigation and prosecution of the corruption cases involving the pardoned former governors Dariye and Nyame reportedly cost over N300 millions of taxpayers’ money.

The cases went from the High Court to the Supreme Court of Nigeria. “Section 15(5) of the Nigerian Constitution provides that ‘The State shall abolish all corrupt practices and abuse of power.’

Similarly, article 26 of the UN Convention against Corruption requires your government to ensure ‘effective, proportionate and dissuasive sanctions’ in cases of grand corruption. “Article 26 of the convention complements the more general requirement of article 30, paragraph 1, that sanctions must take into account the gravity of the corruption offences. “SERAP notes that in your inaugural speech on May 29, 2015 you stated that, ‘We are going to tackle pervasive corruption head on.

Nigerians will not regret that they have entrusted national responsibility to us. “However, the latest Transparency International’s Corruption Perception Index shows that Nigeria scored 24 out of 100 points, and ranked 154 out of 180 countries surveyed, falling back five places from the rank of 149 in 2020. This places Nigeria as the second most corrupt country in West Africa.

“The pardon power, if properly exercised, can help to protect citizens against possible miscarriage of justice. “SERAP therefore urges you to urgently withdraw the presidential pardon granted to Mr Dariye and Mr Nyame, and to propose amendment to section 175 of the Nigerian Constitution that will make the exercise of the power to pardon more transparent and consis,tent and compatible with the country’s international obligations.

“Any proposed amendment should also empower the citizens to challenge the legality of any arbitrary exercise of the power of prerogative of mercy,” it noted.

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